Ordinance 067-19RECORD OF ORDINANCES
BARRETT BROTHERS - DAYTON, OHIO Form 62205
Ordinance No. 67-19 Passed
AUTHORIZING THE CITY MANAGER TO ENTER INTO A
REAL ESTATE TRANSFER AND DEVELOPMENT
AGREEMENT AND AN INFRASTRUCTURE AGREEMENT
FOR THE DEVELOPMENT OF THE CORNERS
DEVELOPMENT IN THE CITY AND FOR THE
CONSTRUCTION OF CERTAIN RELATED
INFRASTRUCTURE AND PARK IMPROVEMENTS, AND
AUTHORIZING THE EXECUTION OF VARIOUS RELATED
AGREEMENTS AND DOCUMENTS,
WHEREAS The City and the Daimler Group, Inc. (the Deve%pei`) desire to
develop the real property owned by the City located at the northwest corner of
Rings Road and Frantz Road (Franklin County tax parcel 273-01074900) with a
mix of office and retail uses, together with supportive public infrastructure
improvements and public park improvements (collectively the, "Public
Improvements'; and
WHEREAS, the City has determined that it would be in the best interests of the
City to enter into a Real Properly Transfer and Development Agreement with the
Developer for the transfer of a portion of the City's property to the Developer in
order for the development of the once and retail improvements, and enter into
an Infrastructure Agreement with the Developer for the construction by the
Developer of the Public Improvement and the financing by the Developer of a
portion of the Public Improvements;
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State
of Ohio, f07 of the elected members concurring, that:
Section 1. Authorization of Agreements. The following agreements, each of
which generally provide for the terms as described below, each by and between
the City and the Developer, and each in the form presently on file with the Clerk
of Council, are hereby approved and authorized with such changes therein not
inconsistent with this Ordinance and not substantially adverse to this City and
which shall be approved by the City Manager:
(a) the Real Estate Transfer and Development Agreement, which generally
provides for the City's transfer of a portion of the City owned property at
the northwest corner of Rings Road and Frantz Road for development as
a mixed-use office and retail complex, and
(b) the Infrastructure Agreement, which generally provides for the
Developer's construction of the Public Improvements and the Developer's
financing of a portion of the Public Improvements.
The City Manager, for and in the name of this City, is hereby authorized to
execute each of the foregoing agreements, provided further that the approval of
changes to any such agreement by that official, and their character as not being
substantially adverse to the City, shall be evidenced conclusively by the execution
thereof. This City Council further authorizes the City Manager, for and in the
name of the City, to execute any amendments to any of the foregoing
agreements, which amendments are not inconsistent with this Ordinance and not
substantially adverse to this City.
Section 2. Real Estate Transfers. The City Manager is hereby authorized to
execute any and all agreements and other instruments necessary to implement
the real estate transactions contemplated in the Real Estate Transfer and
Development Agreement.
RECORD OF ORDINANCES
BARRETT BROTHERS - DAYTON, OHIO
l
Ordinance No.
Passed
Section 3. Further Authorizations. This City Council further hereby authorizes
and directs the City Manager, the Director of Finance, the Director of Law, the
Director of Development, the Clerk of Council or other appropriate officers of the
--- City to prepare and sign all documents and instruments and to take any other
actions as may be appropriate to implement this Ordinance.
I! Section 4. Open Meetings, This City Council finds and determines that all formal
actions of this City Council and any of its committees concerning and relating to
the passage of this Ordinance were taken in an open meeting of this City Council
or any of its committees, and that all deliberations of this City Council and any of
i its committees that resulted in those formal actions were in meetings open to the
public, all in compliance with the law including Ohio Revised Code Section 121.22.
Section 5. Effective Date. This Qronance shall take effect and be in force from
and er the earliest date permti� ed by law.
Si ed:
o
ayor - Pr4(sidiyA Officer
Atte
Clerk of Council
Passed: P, 2019
Effective: 1tQ.Y'
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Form 6220S
7City of Dublin
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017-1090
Phone: 614.410.4400 • Fax: 614.410.4490
To: Members of Dublin City Council
From: Dana L. McDaniel, City Manager
Date: November 12, 2019
Initiated By: Donna Goss, PhD, Director of Development
Memo
Re: Development and Infrastructure Agreement Business Terms — The Corners
Summary
Based upon feedback received from Council at their November 4, 2019 meeting, staff seeks
approval of the business terms as outlined in the attached Development and Infrastructure
Agreement for a project to be known as The Corners, a public-private commercial development
with a public park and open spaces intended to serve as an amenity for nearby businesses and
adjacent neighborhoods in the area.
Also for Council consideration are separate, related ordinances requesting authorization for
rezoning of the parcel as well as TIF modification and creation to further support the project
development.
The Project: The Corners at Frantz and Rings Roads
Process Overview
The City of Dublin Department of Development initiated an RFQ (Request for Qualifications)
process in May 2018 to identify a suitable developer to collaborate with on the development of the
10 acres of City -owned land on the west side of Frantz Road, north of Rings Road, and south of
Blazer Parkway. The Daimler Group responded to the RFQ, with a developer team that includes
Bean Architects, POD Design, and EMH&T.
Staff and the Daimler Group hosted a public meeting on Tuesday, November 27, 2018 at the
Dublin Community Recreation Center to introduce the Daimler team and the project objectives.
The Daimler Group presented this project to the
Review on Thursday, June 20, 2019. The project
feedback, including:
Planning and Zoning Commission as an Informal
proposal was revised to incorporate stakeholder
Eliminating the residential land use (apartment housing) and a potential fuel station
concept;
Adding two small office pad sites; and
Adding a central public park space.
After receiving favorable feedback from the Commission regarding the proposed land uses and
their arrangement on the site, the Daimler Group, on behalf of the City, filed a formal application
for Rezoning/Preliminary Development and Preliminary Plat. The Commission reviewed the project
and recommended approval to City Council at the September 19, 2019 meeting.
Introductions of both the proposed business terms of the Development and Infrastructure
Agreement and the Rezoning/Preliminary Development Plan were made to Council at the
November 4, 2019 meeting. Pending favorable feedback of the first reading of this item,
Memo re. The Corners at Frantz and Rings Roads - Development and Infrastructure Agreement
November 12, 2019
Page 2 of 4
Ordinances for the Rezoning/Preliminary Development and Preliminary Plat will follow as well as
the second reading and determination scheduled for Council's December 2, 2019 meeting.
Project Overview
The project includes four distinct subareas:
Subarea A — Public Parks and Open Space: Approximately 4.06 acres with pedestrian/bicycle
connections to and through the site. Includes existing storm water retention ponds, proposed to
be integrated as an amenity to the site, in addition to a new public park centrally located within
the site. The City will retain ownership of the public park and open space and be responsible for
its upkeep and maintenance.
Subarea B1— Commercial: Approximately 6.50 acres; estimate 47,000 SF restaurant and retail.
Subarea B1 includes public plaza space at the street corner, streetscape landscaping along Frantz
Road, and a landscaped walkway that leads pedestrians from the public right-of-way to the public
park located interior to the site. The public plaza space and streetscape landscaping will be
publicly dedicated but maintained by the owner of the private development parcels. The
landscaped walkway will be owned and maintained by the owner of the private development parcel
and will be subject to a public access easement.
Subarea B2 and B3 — Office: Approximately 1.48 acres (B2) and 1.69 acres (B3). Two build -to -
suit pad sites, approximately 12,000 SF each.
The estimated project cost to the City for the park and all required public improvements is
$3,365,000. The City would cash fund the first $1,600,000 of costs. As per the terms of the
agreement, the developer has conceptually agreed to finance the remaining costs up to $2.0
million, with annual reimbursement payments to be made by the City over a 10 year period
(approximately $230,000 per year from service payments from the Rings/Frantz TIF and new TIF
on the project area as described below so the City would not have to borrow money to finance any
part of this project.
The Development and Infrastructure Agreement
Summary of Key Business Terms
1. Park and Public Improvements
In coordination with EMH&T, the City will design and The Daimler Group, Inc. will construct a
public park in Subarea A and associated public improvements for the remaining Subareas at a cost
of approximately $3.365 million pursuant to an Infrastructure Agreement between Daimler and the
City. Based upon current estimates, the City expects to apply $1.6 million of cash on hand in the
Rings/Frantz TIF to pay monthly construction draws. Daimler would provide upfront funding for
the balance of $1.765 million. The City would make reimbursement payments to Daimler of
approximately $230,000 per year for 10 years (interest and principal). This annual payment is
expected to be funded from the Rings/Frantz TIF and the new TIF on the project site.
Estimated Total Cost: $3.365 Million ($3.895 Million including developer debt service costs)
Memo re. The Corners at Frantz and Rings Roads - Development and Infrastructure Agreement
November 12, 2019
Page 3 of 4
Estimated Scope of Improvements
Park Improvements (shelter, hardscape, lighting, irrigation, benches, and other amenities)
$875,000
Eight -foot asphalt path around storm water ponds, estimated at 3000 linear feet
$450,000
Pond enhancements/beautification, retaining walls, railings, seating areas, center/circle
gathering area, landscaping
$500,000
East/West path(s) from Frantz Road to the public park space interior to the site
$50,000
- Pocket parks at NE (Blazer Parkway/Frantz Road and SE (Rings Road/Frantz Road) corners
$500,000
- Site vehicular access points, Rings Road median changes
$450,000
- Mechanical Relocations—AEP/Communication
$500,000
- Ancillary Site Improvements/Irrigation
$20,000
- Fountain Additions/Replacements
$20,000
2. Transfer of City -owned property
The City agrees to transfer ownership of Subarea B1, B2 and B3 to The Daimler Group, Inc. upon
Council approval of the final development plan, the Property Transfer and Development Agreement
and the Infrastructure Agreement. Should The Daimler Group, Inc., desire to transfer any piece or
portion of B1, B2 or B3 to an entity other than an affiliated holding company and/or LLC of The
Daimler Group, Inc., they will be required to obtain approval of an amended final development
plan and obtain a lot split for a project on that site. Applications for development projects must
proceed through and be approved by the Planning and Zoning Commission to confirm that the final
land use/user(s) and square footages meet the minimum requirements of the project and support
the overall development of the site.
If The Daimler Group, Inc. should transfer of ownership of the property prior to twenty years from
the date of transfer from the City, The Daimler Group, Inc. will be required to reimburse the City
for costs incurred for the land and associated legal expenses on a per acre basis as calculated
below. Should areas B1, B2 and/or B3 remain undeveloped for a period of five years from the date
of transfer, ownership of B1, B2 and/or B3 will revert to the City.
Total Cost: $787,508 (9.33 acres x original purchase price of $84,406 per acre)
Memo re. The Corners at Frantz and Rings Roads - Development and Infrastructure Agreement
November 12, 2019
Page 4 of 4
As previously described, legislation for property transfer will be brought forward separately for
Council consideration upon approval of the business terms of the development and infrastructure
agreement.
Project Costs, Tax Valuation, and Payments In Lieu of Taxes
The developer has estimated the private investment for Subarea 131 of the proposed project at
$10.4 million. Additional private investment in Subarea B2 and B3 estimated to be around $5.0
million will occur when the office pads are developed. The timeline on this additional private
investment is uncertain and therefore not factored into the current finance model.
The project area is currently located in the Rings/Frantz TIF. The Rings/Frantz TIF would fund a
total of $3.05 million toward the park and public improvements, with $1.6 million of that amount
paid in 2020 to reduce the amount financed by the developer. To support the ongoing developer
financed debt service associated with these public improvements and park, the City would remove
the project area from the Rings\Frantz TIF and create a new TIF district. The developer -financed
debt of $1.765 million would be financed over 10 years. The developer would be reimbursed for
their annual debt service payments through the additional estimated $1.45 million in transfers from
the Rings/Frantz TIF and the service payment revenue generated by the new TIF on the project
area.
As previously described, legislation to modify the existing TIF and create the new TIF will be
brought forward separately for Council consideration upon approval of the business terms of the
development and infrastructure agreement.
Recommendation
Staff recommends Council approval of the business terms of the Development and Infrastructure
Agreement with the Daimler Group. Inc. Pending Council feedback, the Development and
Infrastructure Agreement, the TIF ordinances, and the Rezoning with Preliminary Development
Plan will be presented to Council for second reading/public hearing at the December 2n1 meeting.
10.23.19
INFRASTRUCTURE AGREEMENT
(The Corners at Rings and Frantz Road)
This INFRASTRUCTURE AGREEMENT (the Agreement") is made and entered into as of this
day of , 2019 (the "Effective Date"), by and between the CITY OF DUBLIN,
OHIO (the "City"), a municipal corporation duly organized and validly existing under the
Constitution and laws of the State of Ohio (the "State") and its Charter, and THE DAIMLER GROUP,
INC. ("Developer" and together with the City, the "Parties"), an [Ohio] corporation, under the
circumstances summarized in the following recitals (the capitalized terms not defined in the
recitals are being used therein as defined in Article 1).
RECITALS:
WHEREAS, the City owns certain land located at the northwest corner of Rings Road and
Frantz Road (current tax parcel ID number 273-010749) that it has made available for redevelopment;
and
WHEREAS, the City and the Developer have entered into an agreement whereby the City will
transfer a portion of such property (hereinafter referred to as the "Property'') to the Developer for
development of a mixed-use office and retail center; and
WHEREAS, to support the redevelopment of the Property, it is necessary to make certain
improvements to Blazer Parkway, Rings Road and Frantz Road, construct certain utility
improvements and storm water management improvements, and make public park and open area
improvements on or adjacent to the Property, all as further depicted and described on EXHIBIT A
(referred to herein as the "Public Improvements"); and
WHEREAS, in accordance with the TIF Statutes and pursuant to the TIF Ordinance, the
Parties and the Developer are entering into this Agreement to provide generally for the
development and financing of the Public Improvements; and
WHEREAS, City Council passed Ordinance No. -19 on 2019,
authorizing the execution and delivery of this Agreement;
WHEREAS, in order to enhance coordination between the construction of the Public
Improvements and the Developer's private improvements and to more efficiently cause the
construction of the Public Improvements, the City has determined that it would be in the best interests
of the City to contract with the Developer to provide for the construction and installation of the Public
Improvements in the manner described herein; and
Now, THEREFORE, in consideration of the promises and covenants contained herein, and
to induce the Developer to proceed with the construction of the Public Improvements, the Parties
agree as follows:
(END OF RECITALS)
ARTICLE I
Section 1.1. Use of Dermed Terms. In addition to the words and terms defined
elsewhere in this Agreement or by reference to another document, the words and terms set forth in
Section 1.2 have the meanings set forth in Section 1.2 unless the context or use clearly indicates
another meaning or intent.
Section 1.2. Dermitions. As used herein:
"Agreement'' means this Infrastructure Agreement (The Corners at Rings and Frantz Road)
by and between the City and the Developer and dated as of the Effective Date.
Authorized City Representative" means initially the City Manager of the City. The City
may from time to time provide a written certificate to the Developer signed on behalf of the City by
the City Manager designating an alternate or alternates who has the same authority, duties and powers
as the initial Authorized City Representative.
Authorized Developer Representative" means initially Paul G. Ghidotti, in his capacity as
Executive Vice President of the Developer. The Developer may from time to time provide a written
certificate to the City signed on behalf of the Developer by its President designating an alternate or
alternates or a substitute who has the same authority, duties and powers as the initial Authorized
Developer Representative.
"Change Directive" means such instrument executed and delivered pursuant to Section 4.7.
"Change Order" means such instrument executed and delivered pursuant to Section 4.6.
"City" means the City of Dublin, Ohio, an Ohio municipality.
"City Council" means the City Council of City.
"Completion Certificate" has the meaning set forth in Section 4.3(a).
"Construction Documents" means this Agreement, the Drawings and Specifications, the
bids for the Public Improvements as approved by the Authorized City Representative, and the
[Guaranteed Maximum Price Construction Contract] between Developer and the General
Contractor, as construction contractor, as such documents may be revised or supplemented from
time to time with the approval of the Authorized City Representative and the Authorized Developer
Representative.
"Cost of the Work" means the actual costs of the design and construction of the Public
Improvements, the approved budget for which is attached as EXHIBIT D. Costs of the Work may
include construction labor and material costs, related plan review and inspection fees, design and
engineering fees as approved by the Engineer, site preparation costs, legal fees related to the review
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of project construction documents, and other costs necessary and appurtenant thereto, all as further
described in the approved Construction Documents.
"County" means the County of Franklin, Ohio.
"Developer" means The Daimler Group, Inc., a corporation organized and existing under the
laws of the State, including any successors or assigns thereof permitted under this Agreement.
"Director of Finance" means the Director of Finance of the City.
"Drawings andSpecifications" has the meaning set forth in Section 5. 1, which Drawings and
Specifications contain the detailed construction plans and specifications for the Public Improvements.
"Effective Date" means the date as defined in the preambles of this Agreement.
"Engineer" means the City Engineer, or any architectural or engineering firm licensed to
perform architectural and engineering services within the State of Ohio and appointed by the City
with the consent of the Authorized Developer Representative, which consent may not be unreasonably
withheld or delayed.
"Engineer's Completion Certificate" has the meaning set forth in Section 4.3(b).
"Event of Default"means an Event of Default under Section 7.1.
"Force Majeure" means acts of God; fires; epidemics; landslides; floods; strikes; lockouts or
other industrial disturbances; acts of public enemies; acts or orders of any kind of any governmental
authority; insurrections; riots; civil disturbances; arrests; explosions; breakage or malfunctions of or
accidents to machinery, transmission pipes or canals; partial or entire failures of utilities; shortages of
labor, materials, supplies or transportation; lightning, earthquakes, abnormal adverse weather that
could not have been reasonably anticipated and which affects critical path work; or any other cause
or event not reasonably within the control of the Developer or the City, as the case may be, excluding,
however, the inability of the Developer to obtain financing for its obligations hereunder.
"General Contractor" means
"Project Fund' means the account or fund created by the City into which the amounts
required pursuant to this Agreement shall be deposited and disbursed to pay for the Cost of the
Work pursuant to this Agreement.
"Public Improvements" means the construction of (a) park improvements (shelter,
hardscape, lighting, irrigation, benches, and other amenities) on the Property, (b) an eight -foot
asphalt path around storm water ponds on the Property, (c) pond enhancements/beautification,
retaining walls, railings, seating areas, center/circle gathering area, and landscaping on the
Property, (d) East/West path(s) from Frantz Road to the public park space on the Property, (e)
pocket parks at NE (Blazer Parkway/Frantz Road and SE (Rings Road/Frantz Road) corners, (f)
Property vehicular access points, (g) Rings Road median changes, (h) mechanical relocations for
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electric and communications facilities necessary for the development of the Property, and (i) all
appurtenances thereto, as generally depicted on EXHIBIT A and which will be more specifically
described in the Construction Documents, as the same maybe modified pursuantto this Agreement.
"State" means the State of Ohio.
"TIF Ordinance" means Ordinance No. 2019- , passed by the City Council on ,
2019.
"Work" means the construction of the Public Improvements in accordance with this
Agreement.
Section 1.3. Interpretation. Any reference in this Agreement to City or to any officers
of City includes those entities or officials succeeding to their functions, duties or responsibilities
pursuant to or by operation of law or lawfully performing their functions.
Any reference to a section or provision of the Constitution of the State, or to a section,
provision or chapter of the Ohio Revised Code includes such section, provision or chapter as
modified, revised, supplemented or superseded from time to time; provided, that no amendment,
modification, revision, supplement or superseding section, provision or chapter is applicable solely
by reason of this paragraph if it constitutes in any way an impairment of the rights or obligations
of the Parties under this Agreement.
No presumption will apply in favor of any Party in the interpretation of this Agreement or
in the resolution of any ambiguity of any provision hereof.
Unless the context indicates otherwise, words importing the singular number include the
plural number, and vice versa; the terms "hereof', "hereby", "herein", "hereto", "hereunder" and
similar terms refer to this Agreement; and the term "hereafter" means after, and the term
"heretofore" means before, the date of this Agreement. Words of any gender include the
correlative words of the other gender, unless the sense indicates otherwise. References to articles,
sections, subsections, clauses, exhibits or appendices in this Agreement, unless otherwise indicated,
are references to articles, sections, subsections, clauses, exhibits or appendices of this Agreement.
Section 1.4. Captions and Headings. The captions and headings in this Agreement are
solely for convenience of reference and in no way define, limit or describe the scope of the intent
of any article, section, subsection, clause, exhibit or appendix of this Agreement.
Section 1.5. Conflicts between this Agreement and other Construction Documents.
Where there is a conflict between this Agreement and the other Construction Documents, the
conflict will be resolved by providing the better quality or greater quantity and compliance with
the more stringent requirement. If an item is shown on the Drawings and Specifications but not
specified, the Developer will provide the item of the same quality as similar items specified, as
determined by the Engineer. If an item is specified but not shown on the Drawings and
Specifications, it will be located as directed by the Engineer.
(END OF ARTICLE 1)
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ARTICLE II
GENERAL AGREEMENT AND TERM
Section 2.1. General Agreement Among Parties. For the reasons set forth in the
Recitals hereto, which Recitals are incorporated herein by reference as a statement of the public
purposes of this Agreement and the intended arrangements among the Parties, the Parties will
cooperate in the manner described herein to facilitate the design and construction of the Public
Improvements.
Section 2.2. Term of Agreement. This Agreement is effective as of the Effective Date
and continues until the Parties have satisfied their respective obligations as set forth in this
Agreement, unless sooner terminated in accordance with the provisions set forth herein.
Section 2.3. No Agency Relationship. The City and the Developer each acknowledge
and agree that in fulfilling its obligations under this Agreement, the Developer acts as an
independent contractor of the City and not as an agent of the City.
END OF ARTICLE 11)
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ARTICLE III
REPRESENTATIONS AND COVENANTS OF THE PARTIES
Section 3.1. Representations and Covenants of Citv. City represents and covenants
that:
(a) It is a municipal corporation duly organized and validly existing under the
Constitution and applicable laws of the State and its Charter.
(b) To the City's knowledge, it is not in violation of or in conflict with any provisions
of the laws of the State or of the United States of America applicable to City which would impair
its ability to carry out its obligations contained in this Agreement.
(c) It is legally empowered to execute, deliver and perform this Agreement and to enter
into and carry out the transactions contemplated by this Agreement. To the knowledge of City,
that execution, delivery and performance do not and will not violate or conflict with any provision
of law applicable to City, including its Charter, and do not and will not conflict with or result in a
default under any agreement or instrument to which City is a party or by which it is bound.
(d) This Agreement to which it is a Party has, by proper action, been duly authorized,
executed and delivered by City and all steps necessary to be taken by City have been taken to
constitute this Agreement, and the covenants and agreements of City contemplated herein are valid
and binding obligations of City, enforceable in accordance with their terms.
(e) To the City's knowledge, there is no litigation pending or threatened against or by
City wherein an unfavorable ruling or decision would materially and adversely affect City's ability,
to carry out its obligations under this Agreement.
(f) It will do all reasonable things in its power in order to maintain its existence or
assure the assumption of its obligations under this Agreement by any successor public body.
(g) The TIF Ordinance has been duly passed by the City, has not been amended,
modified or repealed, and is in full force and effect.
(h) The City shall not amend the TIF Ordinance in any way that reduces the amount of
service payments in lieu of taxes without the written consent of the Developer.
For purposes of this Section 3. 1, the term "knowledge" means the actual knowledge of the
City Manager, without further investigation, as of the Effective Date.
Section 3.2. Representations and Covenants of the Developer. The Developer
represents and covenants that:
(a) It is a corporation duly organized and in good standing under the applicable laws
of the State.
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(b) To the Developer's knowledge, it is not in violation of or in conflict with any
provisions of the laws of the State or of the United States of America applicable to the Developer
that would impair its ability to carry out its obligations contained in this Agreement.
(c) It is legally empowered to execute, deliver and perform this Agreement and to enter
into and carry out the transactions contemplated by this Agreement. To the knowledge of the
Developer, that execution, delivery and performance do not and will not violate or conflict with
any provision of law applicable to the Developer, and do not and will not conflict with or result in
a default under any agreement or instrument to which the Developer is a party or by which it is
bound.
(d) This Agreement to which it is a Party has, by proper action, been duly authorized,
executed and delivered by the Developer and all steps necessary to be taken by the Developer have
been taken to constitute this Agreement, and the covenants and agreements of the Developer
contemplated herein are valid and binding obligations of the Developer, enforceable in accordance
with their terms.
(e) To the Developer's knowledge, there is no litigation pending or threatened against
or by the Developer wherein an unfavorable ruling or decision would materially and adversely
affect the Developer's ability to carry out its obligations under this Agreement.
(f) It will do all things in its power in order to maintain its existence or assure the
assumption of its obligations under this Agreement by any successor entity.
For purposes ofthis Section 3.2, the term "knowledge" means the actual knowledge
of the Authorized Developer Representative, without a duty to investigate.
(END OF ARTICLE 111)
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ARTICLE IV
DESIGN AND CONSTRUCTION OF PUBLIC IMPROVEMENTS
Section 4.1. General Considerations. In consideration of the Developer's promise to
construct the Public Improvements, the City agrees to disburse amounts on deposit in the Project
Fund to reimburse or otherwise pay the Developer for the Cost of the Work in accordance with
Section 6.2 and any other applicable provisions of this Agreement and accept the completed Public
Improvements in accordance with and subject to the provisions of Section 4.4.
Section 4.2. Design, Construction and Payment of Costs of the Public
Improvements. The City has caused the Public Improvements to be designed. The Developer
shall cause the construction of the Public Improvements in accordance with the Construction
Documents. The Developer shall be solely responsible for any Cost of the Work necessary to
complete the Public Improvements that exceed the approved budget attached as EXHIBIT D (as
the same may be modified by approved Change Order), including, without limitation, increases
in the Cost of the Work caused by corrections to deficient or nonconforming Work.
The Developer will perform the work and pay the Cost of the Work in accordance with this
Agreement and the other Construction Documents, and Developer will provide all necessary and
inferable labor, materials, services and acts in connection with the design, construction and
completion of the Public Improvements, regardless of whether or not reflected in the Construction
Documents. The Public Improvements must be built in a manner that is consistent with the
applicable City requirements and development regulations. The Developer will complete
construction of the Public Improvements, including correction of deficiencies and other punch -list
items, by December 31, 2021, subject to Force Majeure events and other schedule extensions as
Developer may be entitled to under this Agreement.
The Parties agree that the General Contractor will serve as the general contractor for the
Public Improvements. The Developer shall, or shall cause the General Contractor to, request and
receive bids on the Public Improvements in one or more packages, the number and form of which
shall be subject to the reasonable approval of the Authorized City Representative. The Developer
agrees that with respect to each bid package, the Developer shall, or shall cause the General
Contractor to, request and receive no less than three (3) responsible bids, except as may otherwise
be approved in writing by the Authorized City Representative. The Developer shall award, or shall
ensure that the General Contractor awards, the subcontract for each bid package only after
receiving the approval of the Authorized City Representative, which approval shall not be
reasonably withheld. The Developer will enter into all construction contracts in its own name and
not in the name of the City. The Developer will provide to the City drafts of all construction
contracts to which the Developer is a party at least seven (7) days prior to execution thereof in
order to allow the City to review and comment on the same. All such contracts shall include the
completed and executed contract addendum in the form attached hereto as EXHIBIT B, and no
Written Requisitions shall be paid with respect to any such construction contract until the
Developer has provided to the City a copy fully executed contract, including the completed and
executed contract addendum.
The Developer will supervise, perform and direct the Work utilizing qualified personnel,
and in accordance with the standards of care normally exercised by construction organizations
performing similar work.
The Developer agrees that it will obtain or provide any needed temporary construction
easements for the Public Improvements.
Section 4.3. Completion of the Public Improvements. The Public Improvements will
be deemed completed upon fulfillment of the following conditions:
(a) Receipt of written notice (the "Completion Certificate") from the Authorized
Developer Representative that the Public Improvements are complete and ready for final
acceptance by the City, which notice must (i) generally describe all property acquired or
installed as part of the Public Improvements; (ii) state the Cost of the Work, and (iii) state and
constitute the Developer's representation that the construction of the Public Improvements
have been completed substantially in accordance with the Construction Documents, all costs
then due and payable in connection therewith have been paid, there are no attested account
claims under Revised Code Section 1311.25 et seq. ("Attested Account Claims"), and all
obligations, costs and expenses in connection with the Public Improvements have been paid
or discharged.
(b) Receipt from the Engineer of a final Certificate of Completion (the
"Engineer's Completion Certificate") stating that to the best of the Engineer's knowledge,
information and belief, and on the basis of the Engineer's on-site visits and inspections, that
the Public Improvements have been satisfactorily completed in accordance with the terms and
conditions of the Construction Documents, including all punch list items, that the construction
of the Public Improvements have been accomplished in a manner that conforms to all then
applicable governmental laws, rules and regulations; and that the Public Improvements have
been approved by the relevant public authorities.
Section 4.4. Acceptance of the Public Improvements. The City has no obligation to
accept the Public Improvements until:
(a) the Public Improvements are satisfactorily completed in accordance with the Construction
Documents, as evidenced by the Engineer's Completion Certificate and properly dedicated as public
rights-of-way and easements to the City;
(b) the City receives the Completion Certificate, the Engineer's Completion Certificate,
copies of the approval letters issued by relevant public authorities as referenced in Section 4.3 herein,
and all documents and instruments to be delivered to the City pursuant to the Construction Documents;
(c) the City has received evidence reasonably satisfactory to it that all liens on the Public
Improvements, including, but not limited to, tax liens then due and payable, the lien of any mortgage,
and any Attested Account Claims, have been released, or, with respect to Attested Account Claims,
security therefor has been provided pursuant to Section 5.8; and
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(d) the Developer has provided the City "as constructed record drawings" consisting of
reproducible record drawings showing significant changes in the Public Improvements made during
construction and containing such annotations as may be necessary for someone unfamiliar with the
Public Improvements to understand the changes that were made to the original Construction
Documents.
The above conditions do not alleviate the Developer from City inspections of the Public
Improvements during construction. A schedule shall be provided and inspection of the Work shall
be coordinated with the City at least seventy-two (72) hours in advance for key installations such as,
but not limited to, sanitary, storm sewer and granite curb. Key installations shall be established within
two (2) weeks of from the date of submittal of the schedule.
The City agrees to accept the Public Improvements and the rights-of-way allocable thereto
upon satisfaction of the conditions listed in (a) though (d) of this Section. The City acceptance of the
Public Improvements does not relieve the Developer of its responsibility for defects in material or
workmanship as set forth in Section 5. 10, nor any future obligations that may be imposed on the
Developer in connection with the development of property abutting or near the Public Improvements.
Section 4.5. Extensions of Time. If the Developer or the City is delayed in the
commencement or progress of its obligations hereunder by a breach by the other Party of its
obligations hereunder, or by Force Majeure, and other schedule extensions as Developer may be
entitled to under this Agreement or other agreements between the parties, then the time for
performance under this Agreement by the Party so delayed will be extended for such time as is
commercially reasonable under the circumstances.
Section 4.6. Chances in the Work. After the execution of this Agreement, and without
invalidating this Agreement, the Authorized Developer Representative, the Authorized City
Representative and the Engineer by written agreement (a "Change Order") may agree to changes in
the Work. Changes in the Work will be performed under applicable provisions of this Agreement
and the Construction Documents, unless otherwise provided in the Change Order.
A Change Order must be in the form attached as EXHIBIT C, be prepared by the Engineer
and be signed by the Authorized City Representative, the Authorized Developer Representative
and the Engineer, stating their agreement upon (a) the change in the Work, (b) any adjustment of
the Cost of the Work, and (c) any extension of the time for performance under this Agreement.
Approval of each Change Order is subject to the City's standard review and approval process for
contract change orders.
Section 4.7. Chance Directives. The City, without invalidating the Agreement, may order
changes in the Work consisting of additions, deletions or other revisions, including proposed
adjustments to the Developer's time for performance, through a written directive signed by the City
and issued to the Developer ("Change Directive"). In the absence of an agreed-upon method,
adjustments in the Cost of the Work and contract time for performance resulting from a Change
Directive shall be determined by the Developer's cost of labor, material, equipment, and reasonable
overhead, unless the Parties agree on another method for determining the cost or credit. Pending final
determination of the total cost of a Change Directive, the Developer may request payment for Work
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completed pursuant to the Change Directive. The City will make an interim determination of the
amount of payment due for purposes of certifying a Written Requisition. When the City and
Developer agree on adjustments to the Cost of the Work and contract time arising from a Change
Directive, the Engineer will prepare a Change Order. The Developer shall proceed diligently with the
performance of the changes in the Work following receipt of and as set forth in the Change Directive
pending Developer's receipt of a fully executed Change Order.
END OF ARTICLE 1V)
ARTICLE V
FURTHER PROVISIONS RELATING TO THE DESIGN AND
CONSTRUCTION OF THE PUBLIC INFRASTRUCTURE IMPROVEMENTS
Section 5.1. Construction Documents. The City has caused to be prepared the working
drawings, plans and specifications that are necessary to be prepared in connection with the Work
(collectively, the `Drawings and Specifications") as well as the other Construction Documents. The
Drawings and Specifications and the Construction Documents shall be instruments of service through
which the Work to be executed is described.
Section 5.2. Prevailing Wage. The City designates its Contract & Procurement
Coordinator as the prevailing wage coordinator for the Public Improvements (the "Prevailing Wage
Coordinator"). The Developer acknowledges and agrees that the Public Improvements are subject to
the prevailing wage requirements of Chapter 4115 of the Ohio Revised Code and all wages paid to
laborers and mechanics employed on the Public Improvements must be paid at not less than the
prevailing rates of wages of laborers and mechanics for the classes of work called for by the Public
Improvements in Franklin County, Ohio, which wages must be determined in accordance with the
requirements of that Chapter 4115. The Developer must comply, and the Developer must require
compliance by all contractors and must require all contractors to require compliance by all
subcontractors working on the Public Improvements, with all applicable requirements of that Chapter
4115, including any necessary posting requirements. The Developer (and all contractors and
subcontractors thereof) must cooperate with the Prevailing Wage Coordinator and respond to all
reasonable requests by the Prevailing Wage Coordinator when the Prevailing Wage Coordinator is
determining compliance by the Developer (and all contractors and subcontractors thereof) with the
applicable requirements of that Chapter 4115.
The Prevailing Wage Coordinator will notify the Developer of the prevailing wage rates for
the Public Improvements. The Prevailing Wage Coordinator will notify the Developer of any change
in prevailing wage rates within seven (7) working days of receiving notice of such change from the
Director of the Ohio Department of Commerce. The Developer must immediately upon such
notification (a) ensure that all contractors and subcontractors receive notification of any change in
prevailing wage rates as required by that Chapter 4115; (b) make the necessary adjustment in the
prevailing wage rates and pay any wage increase as required by that Chapter 4115; and (c) ensure
that all contractors and subcontractors make the same necessary adjustments.
The Developer must, upon beginning performance of this Agreement, notify the Prevailing
Wage Coordinator of the commencement of Work, supply to the Prevailing Wage Coordinator the
schedule of the dates during the life of this Agreement on which the Developer (or any contractors
or subcontractor thereof) is required to pay wages to employees. The Developer (and each
contractor or subcontractor thereof) must also deliver to the Prevailing Wage Coordinator a
certified copy of its payroll relating to laborers performing the Work within two (2) weeks after
the initial pay date, and supplemental reports for each month thereafter and in connection with any
Written Requisition exhibiting for each such employee paid any wages, the employee's name,
current address, social security number, number of hours worked during each day of the pay
periods covered and the total for each week, the employee's hourly rate of pay, the employee's job
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classification, fringe payments and deductions from the employee's wages; provided, however,
that the Developer must submit such payroll reports weekly if construction of the Public
Improvements is contemplated to last less than four (4) calendar months. The certification of each
payroll must be executed by the Developer (or contractor, subcontractor, or duly appointed agent
thereof, if applicable) and recite that the payroll is correct and complete and that the wage rates
shown are not less than those required by this Agreement and Chapter 4115 of the Ohio Revised
Code.
The Developer must provide to the Prevailing Wage Coordinator a list of names, addresses
and telephone numbers for any contractors or subcontractors performing any Work on the Public
Improvements within a reasonable amount of time after they become available, and the name and
address of the bonding/surety company and the statutory agent (if applicable) for those contractors
or subcontractors. The Developer may not contract with any contractor or subcontractor listed
with the Ohio Secretary of State for violations of Chapter 4115 of the Ohio Revised Code pursuant
to Section 4115.133 of the Ohio Revised Code.
In connection with any Written Requisition, the Developer (and any contractor or
subcontractor thereof) must submit to the Prevailing Wage Coordinator the affidavit required by
Section 4115.07 of the Ohio Revised Code for the Work to which that Written Requisition relates.
Section 5.3. Traffic Control Requirements. The Developer is responsible for ensuring
the provision, through contractors or otherwise, of all traffic control devices, flaggers and police
officers required to properly and safely maintain traffic during the construction of the Public
Improvements. Without limiting the generality of the foregoing, the Developer shall use its best
efforts to maintain traffic flow on existing streets during construction of the Public Improvements and
minimize the time period during which such streets are closed. All traffic control devices must be
furnished, erected, maintained and removed in accordance with the Ohio Department of
Transportation's "Ohio Manual of Uniform Traffic Control Devices" related to construction
operations. The Developer must also submit to City for review and approval by City a plan for
construction ingress and egress and maintain construction traffic in accordance with that plan.
Section 5.4. Equal Opportunitv Clause. The Developer must, in all solicitations or
advertisements for employees placed by or on behalf of the Developer, state that the Developer is an
equal opportunity employer. The Developer will require all contractors and will require all
contractors' subcontractors to include in each contract a summary of this equal opportunity clause.
Section 5.5. Insurance Requirements. The Developer must furnish proof to the City at
the time of commencing construction of the Public Improvements of comprehensive general
liability insurance naming the City and its authorized agents as an additional insured. The
minimum limits of liability for the required insurance policies may not be less than the following
unless a greater amount is required by law:
(a) Commercial General Liability ("CGL"): Bodily injury (including death)
and property damage with a combined single limit of $1,000,000 each occurrence, with a
$2,000,000 aggregate; $100,000 for damage to rented premises (each occurrence); and
$1,000,000 for personal and advertising injury. CGL must include (i) premises -operations,
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(ii) explosion and collapse hazard, (iii) underground hazard, (iv) independent contractors'
protective, (v) broad form property damage, including completed operations, (vi)
contractual liability, (vii) products and completed operations, with $2,000,000 aggregate
and to be maintained for a minimum period of one (1) year after acceptance of the Public
Improvements pursuant to Section 2.4, (viii) personal injury with employment exclusion
deleted, and (ix) stopgap liability for $100,000 limit. The general aggregate must be
endorsed to provide that it applies to the Work only.
(b) Automobile liability, covering all owned, non -owned, and hired vehicles used
in connection with the Work: Bodily injury (including death) and property damage with a
combined single limit of $1,000,000 per person and $1,000,000 each occurrence.
(c) Such policies must be supplemented by an umbrella policy, also written on an
occurrence basis, to provide additional protection to provide coverage in the total amount of
$5,000,000 for each occurrence and $5,000,000 aggregate. The Developer's insurance is
primary to any insurance maintained by the City.
(d) The Developer must obtain an additional named insurance endorsement for
the CGL and automobile liability coverage with the following named insureds for covered
claims arising out of the performance of the Work under the Construction Documents:
(i) the City of Dublin;
(ii) Dublin City Council members, executive officers, and employees;
(iii) the Engineer and its employees; and
(iv) the Developer, to the extent that any construction activities are being
staged or undertaken on real property owned by the Developer.
(e) Insurance policies must be written on an occurrence basis only.
(f) Products and completed operations coverage will commence with the
certification of the acceptance of the Public Improvements pursuant to Section 4.4 and will
extend for not less than two (2) years beyond that date.
(g) The Developer must require all contractors and subcontractors to provide
workers' compensation, CGL, and automobile liability insurance with the same minimum
limits specified herein, unless the City agrees to a lesser amount.
(h) If the Work includes environmentally sensitive, hazardous types of
activities (such as demolition, exterior insulation finish systems, asbestos abatement,
storage -tank removal, or similar activities), or involves hazardous materials, the Developer
shall maintain a pollution liability policy with (1) a per -claim limit of not less than
$1,000,000 and (2) an annual -aggregate limit of not less than $1,000,000, covering the acts,
errors and/or omissions of the Developer for damages (including from mold) sustained by
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the City by reason of the Developer's performance of the Work. The policy shall have an
effective date, which is on or before the date on which the Developer first started to perform
any Work-related services. Upon submission of the associated certificate of insurance and
at each policy renewal, the Developer shall advise the City in writing of any actual or
alleged claims which may erode the policy's limits.
(i) If the Work includes professional design services, Professional liability
insurance from the Developer's design professional and any other consultant and
subcontractor that are providing professional design services without design -build
exclusions with limits not less than $1,000,000 per claim and $2,000,000 annual aggregate.
The professional liability policy shall have an effective date which is on or before the date
on which the Developer first started to provide any Work-related services. Upon
submission of the associated certificate of insurance and at each policy renewal, the
Developer shall advise the City in writing of any actual or alleged claims which may erode
the professional liability policy's limits. The Developer's design professional and any
consultants and subcontractor that are providing professional design services shall maintain
such coverage as required by this Subsection for no less than five (5) years after the earlier
of the termination this Agreement or final completion of all Work.
0) the Developer shall purchase and maintain, in a company or companies
lawfully authorized to do business in the jurisdiction in which the Work is located, property
insurance on an "all-risk" or equivalent policy form, including builder's risk, in the amount
of the initial Cost of the Work, plus the value of subsequent modifications and cost of
materials supplied and installed by others, comprising total value for the entire Work at the
site on areplacement cost basis without optional deductibles. Such property insurance shall
be maintained, unless otherwise agreed in writing by all persons and entities who are
beneficiaries of such insurance, until final disbursement has been made as provided in
Section 6.3 or until no person or entity other than the City has an insurable interest in the
property required by this Section to be covered, whichever is later. This insurance shall
include interests of the City, the Developer and subcontractors of any tier. The Developer
shall provide a copy of a certificate of insurance, upon request, to the City evidencing such
coverage before an exposure to loss may occur. Each policy shall contain a provision that
the policy will not be canceled or allowed to expire, and that its limits will not be reduced,
until at least thirty (30) days' prior written notice has been given to the Developer and City.
Each policy of insurance and respective certificate of insurance must expressly provide that
no less than ten (10) days prior written notice be given to City in the event of cancellation, non-
renewal, expiration or material alteration of the coverage contained in such policy.
Section 5.6. Citv Income Tax Withholdings. The Developer will withhold and pay, will
require all contractors to withhold and pay, and will require all contractors to require all subcontractors
to withhold and pay, all City income taxes due or payable with respect to wages, salaries,
commissions and any other income subject to the provisions of Chapter 35 of the Dublin City Code.
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Section 5.7. Compliance with Occupational Health and Safety Act of 1970. The
Developer and all contractors and subcontractors are solely responsible for their respective
compliance with the Occupational Safety and Health Act of 1970 under this Agreement.
Section 5.8. Provision of Securitv for Attested Account Claims. To the extent any
subcontractor, material supplier or laborer asserts and Attested Account Claim against the Public
Improvements, the City shall proceed as is required by Revised Code Section 1311.25 et seq. which
may include detaining funds that are due and payable to Developer until a sufficient amount has been
detained to cover the Attested Account Claim until such time that the Attested Account Claim is
released or discharged. Prior to authorizing any contractor to commence work on the Public
Improvements, the Developer shall request a "Notice of Commencement" for the Public
Improvements from the City, who shall provide a copy to the Developer and make it available as
required under Revised Code Section 1311.252. The Developer shall provide a copy of the Notice of
Commencement to its subcontractors and any known lower tier subcontractors, and the Developer
shall further require its subcontractors to provide a copy of the notice to any of the lower tier
subcontractors. The Developer shall also post a copy of the Notice of Commencement in a
conspicuous location at the project site.
Section 5.9. Security for Performance. The Developer will furnish prior to
commencement of construction of the Public Improvements a performance and payment bond from
the general contractor for the Public Improvements in an amount not less than the Cost of the Work
that names the City as obligee in the form provided by Section 153.57 of the Ohio Revised Code. In
the event of an increase in the Cost of the Work as a result of a Change Directive or Change Order,
the Developer shall proportionately increase the amount of its bond. If notice of any change affecting
this Agreement is required by a provision of the bond, giving the notice shall be the Developer's
responsibility.
Any bond must be executed by sureties that are licensed to conduct business in the State as
evidenced by a Certificate of Compliance issued by the Ohio Department of Insurance. All bonds
signed by an agent must be accompanied by a power of attorney of the agent signing for the surety.
If the surety of any bond so furnished by a contractor declares bankruptcy, become insolvent or its
right to do business is terminated in Ohio, the Developer, within five (5) days thereafter, will substitute
another bond and surety or cause the contractor to substitute another bond and surety, both of which
is acceptable to the City and the Developer. The Developer must provide to the City prior to
commencement of any Work by any contractor a copy the security for performance provided by the
Developer or contractor pursuant to this Section.
Section 5.10. Further Developer Guaranties Relating to the Public Improvements. The
Developer guarantees that it will cause to be exercised in the performance of the Work the standard
of care normally exercised by well-qualified engineering and construction organizations engaged in
performing comparable services in central Ohio. The Developer further warrants that the Work and
any materials and equipment incorporated into the Work will be free from defects, including defects
in the workmanship or materials (without regard to the standard of care exercised in its performance)
for a period of one (1) year (two (2) years for storm sewer improvements dedicated to the City) after
written conditional acceptance of the Work by City. The guarantee provided in this Section is in
addition to, and not in limitation of, any other guarantee, warranty or remedy provided by law, a
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manufacturer or the Construction Documents. The Developer shall require in all construction
contracts for the Public Improvements to provide that the City is a beneficiary of any guarantees
provided by the Contractor and entitled to enforce those guarantees.
If defective Work becomes apparent within the warranty or guarantee period, the City will
promptly notify the Developer in writing and provide a copy of said notice to the Engineer. Within
ten (10) days of receipt of said notice, the Developer will visit the site of the Work in the company
of one or more representatives of the City to determine the extent of the defective work. The
Developer will, within a reasonable time frame, repair or replace (or cause to be repaired or
replaced) the defective Work, including all adjacent Work damaged as a result of such defective
Work or as a result of remedying the defective Work. If the defective Work is considered by the
City to be an emergency, the City may require the Developer to visit the site of the Work within
one day of receipt of said notice. The Developer is fully responsible for the cost of temporary
materials, facilities, utilities or equipment required during the repair or replacement of the
defective Work.
If the Developer does not repair or replace defective Work within a reasonable time frame,
the City may repair or replace such defective Work and charge the cost thereof to the Developer
or the Developer's surety. Work that is repaired or replaced by the Developer is subject to
inspection and acceptance by the Engineer and City and must be guaranteed by the Developer for
one (1) year from the date of acceptance of the corrective work by the City.
Section 5.11. Developer Representations as to Personal Propertv Taxes; Sales Taxes.
The Developer represents that at the time of the execution of this Agreement, it is not charged with
any delinquent personal property taxes on the general tax list of personal property of the County.
Further, the Developer will require all contractors to execute an affidavit in the form set forth on
EXHIBIT E, a copy of which certificate must be delivered to the Authorized City Representative prior
to the commencement of any work by that contractor or subcontractor. The Parties intend that
building and construction materials incorporated into the Public Improvements be exempt from state
and local sales taxes. The City will cooperate with the Developer to provide sales tax exemption
certificates to contractors in order to exempt those materials.
Section 5.12. Indemnity. (a) The Developer releases the City and each officer, official
and employee thereof (collectively, the "Indemnified Parries" and each an "Indemnified Party")
from, agrees that the Indemnified Parties are not liable for, and indemnifies each Indemnified Party
against, all liabilities, obligations, damages, costs and expenses (including without limitation,
reasonable attorneys' fees) asserted against, imposed upon or incurred by an Indemnified Party
(collectively, the "Liabilities" and each a "Liability"), other than any Excluded Liability as
hereinafter defined, arising out of, in connection with or resulting from the execution and delivery
of this Agreement, the consummation of the transactions provided for herein and contemplated
hereby, liens of subcontractors and suppliers of any tier, and all activities undertaken by the
Developer or the City pursuant to this Agreement in furtherance of the development of the Public
Improvements. The Developer shall require in all construction contracts for the Public Improvements
to provide that the City is a beneficiary of any indemnitees provided by the Contractor and entitled to
enforce those indemnitees.
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"Excluded Liability" means each Liability to the extent it is attributable to (i) the gross
negligence or willful misconduct of any Indemnified Party, or (ii) the failure of the City to comply
with any of its obligations under this Agreement. Excluded Liabilities include, without limitation,
any Liabilities settled without the Developer's consent and any Liability to the extent that the
Developer's ability to defend that Liability is prejudiced materially by the failure of an Indemnified
Party to give timely written notice to the Developer of the assertion of that Liability.
(b) Upon notice of the assertion of any Liability, the Indemnified Party must give
prompt written notice of the same to the Developer.
(c) Upon receipt of written notice of the assertion of a Liability, the Developer has the
duty to assume, and must assume, the defense thereof, with full power and authority to litigate,
compromise or settle the same in its sole discretion; provided that the Indemnified Party has the
right to approve any obligations imposed upon it by compromise or settlement of any Liability or
in which it otherwise has a material interest.
(d) At its own expense, an Indemnified Party may employ separate counsel and
participate in the defense of any Liability; provided, however, if it is ethically inappropriate for
one firm to represent the interests of the Developer and the Indemnified Party, the Developer must
pay the reasonable legal expenses of the Indemnified Party in connection with its retention of
separate counsel. The Developer is not liable for any settlement of any Liability effected without
its written consent, but if settled with the written consent of the Developer, or if there is a final
judgment for the plaintiff in an action, the Developer agrees to indemnify and hold harmless the
Indemnified Party except only to the extent of any Excluded Liability.
(e) This Section survives the termination of this Agreement.
(END OF ARTICLE V)
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ARTICLE VI
PAYMENT OF COST OF THE WORK
Section 6.1. Deposit of Monies in the Proiect Fund. The City has established or will
establish prior to commencement of the Work, the Project Fund for the payment of the Cost of the
Work. The City covenants and agrees to deposit monies into the Project Fund in an amount equal to
$1,600,000. The Developer covenants and agrees to deposit monies into the Project Fund in an
amount equal to remaining Cost ofthe Work as set forth in the final Construction Documents prior to
commencement of construction of the Public Improvements (the "Developer's Deposit"). The
Developer acknowledges and agrees that this and any additional deposit into the Project Fund is a
non-refundable transfer and title vests to all such amounts in the City immediately upon the making
of those deposits, and that the Developer has no right, title or interest in the Project Fund other
than amounts in the Project Fund needed to pay approved Written Requisitions hereunder or
amounts to be paid to the Developer pursuant to Section 6.3 following final completion of the
Work and acceptable by the City. Promptly following the execution and delivery of any Change
Order, the Developer agrees to deposit additional monies into the Project Fund as may be required to
pay the additional Cost ofthe Work caused by the Change Order, or in the event of a Change Directive
(or final Change Order resulting from a Change Directive) that causes the total Cost of the Work (as
adjusted by any Change Orders previously or thereafter approved) to exceed the amount deposited
into the Project Fund, the City agrees to deposit into the Project Fund additional monies as based on
the City's interim determination under Section 4.7 and pending the execution of a Change Order, in
each case when and as necessary to fund disbursements pursuant to the schedules set forth in the
Construction Documents. Following commencement of construction of the Public Improvements
and promptly upon a determination by the Developer or the City that the projected remaining Cost of
the Work will exceed the amount remaining in the Project Fund, the Developer shall deposit such
additional amounts into the Project Fund as are necessary in order to increase the amount in the Project
Fund to an amount equal to the projected total remaining Cost ofthe Work. Notwithstanding anything
to the contrary contained herein, any additional deposit required from the Developer hereunder shall
be equal only to the amount of the excess Cost of Work, if any, that would exist after reallocating any
unallocated contingency funds in the projected total remaining Cost of Work to costs associated with
such Change Order (other than a Change Order resulting from a Change Directive).
Section 6.2. Disbursements from the Proiect Fund.
(a) General. The City agrees to authorize disbursement of amounts in the Project Fund,
in accordance with the Construction Documents based on Written Requisitions executed by the
Authorized Developer Representative substantially in the form set forth on EXHIBIT F. No amounts
shall be disbursed from the Project Fund with respect to any construction contract until the Developer
provides to the City a fully executed copy of that contract, including the completed and executed
contract addendum in the form attached as E%HIBrr B, as well as proof of the insurance required
under Section 5.5, the notice of commencement required under Section 5.8, the bond required under
Section 5.9 and the affidavit required under section 5.11. The parties agree that Written Requisitions
and payments to the Developer shall be subject to the retainage requirements of five percent (5%) of
the amount requested in a Written Requisition. To the extent consistent with the customary payment
process ofthe City with respect to payment applications from contractors on City public improvement
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contracts, each Written Requisition must be accompanied by conditional lien waivers and releases
from all subcontractors and suppliers to be paid from the payment resulting from the Written
Requisition, and unconditional lien waivers and releases from all subcontractors and suppliers for
which The Developer was required to provide a conditional lien waiver in connection with a prior
Written Requisition. The period covered by each Written Requisition must be at least one (1) calendar
month, ending on the last day of the month. The Developer will deliver payment requests to the City
no more often than once each calendar month during the course of construction of the Public
Improvements. The City may object to a Written Requisition by giving written notice of and specific
reasons for the objection(s) and of the amounts subject to the objection(s) within ten (10) business
days of receipt. Following receipt of any objection by the City, Developer may provide additional
information on a supplemental Written Requisition form (such being a "Supplemental Requisition")
in order to substantiate any objected amounts. The City may object to a Supplemental Requisition by
giving written notice of and specific reasons for the objection(s) and of the amounts subject to the
objection(s) within five (5) business days of receipt. Objections maybe made because of a good faith
belief that there is amaterial defect in Work orthe percentage of completion of the Work in question
in the Written Requisition is materially overstated. A Written Requisition is not payable until the
objection is resolved; provided, however, that the City may only withhold from disbursement any
expenses specifically objected to in any given Written Requisition, and all other amounts from such
Written Requisition shall be disbursed pursuant to Section 6.2(b) below. If an objection is not made
by the City in the time periods described herein, the City shall fully fund the amounts requested in the
applicable Written Requisition or Supplemental Requisition, subject to the retainage requirements
described above and the disbursement procedures described in Section 6.2(b) below.
(b) Disbursements. Unless the City objects to any such Written Requisition and until such
time as all amounts in the Project Fund have been fully disbursed to the Developer in the form of
reimbursements, the City will within thirty (30) days following receipt of the Written Requisition
(forty-five (45) days in case of the final Written Requisition) pay to the Developer the amounts
reflected in any Written Requisition to be paid from the Project Fund. To the extent that the Developer
has not theretofore paid the applicable subcontractor(s) and/or supplier(s) the amount requested in
such Written Requisition, the Developer will promptly pay to the applicable subcontractor(s) and/or
suppliers) the amounts payable to such subcontractor(s) and/or supplier(s).
All disbursements requested pursuant to this Section are subject to the prior approval of the
Engineer and the Director of Finance. All disbursements pursuant to this Section will be made solely
from the money deposited into the Project Fund and such monies will be the sole source ofmonies
available from the City for payment of the Costs of the Work.
(c) City Payments Limited to Amount in Project Fund. The Developer covenants and
agrees that it will be responsible for the Cost of the Work that is not paid from amounts deposited in
the Project Fund, and the Developer will not be entitled to any further reimbursement therefor from
the City and the City shall have no obligation to reimburse the Developer for that unreimbursed Cost
of the Work from any other City monies.
(d) Other Related Provisions. Upon request of the Authorized City Representative or the
Engineer, the Developer will furnish invoices or other documentation in connection with each Written
Requisition. Any Written Requisition under this Section 6.2 may be in the form of a communication
-20-
by telegram, e-mail, or facsimile transmission, but if in such form, it must be promptly confirmed by
a Written Requisition executed by an Authorized Developer Representative and approved by the
Authorized City Representative that is delivered to the Developer by telegram, e-mail, or facsimile
transmission.
In paying any Written Requisition under this Section 6.2, The City is entitled to rely as to the
completeness and accuracy of all statements in such Written Requisition upon the approval of such
Written Requisition by an Authorized Developer Representative, execution thereof, and
communication thereof by telegram, e-mail, or facsimile transmission, to be conclusive evidence of
such approval, and the Developer will indemnify and save harmless the City from any liability
incurred in connection with any Written Requisition so executed or communicated by an Authorized
Developer Representative.
So long as any Event of Default by the Developer continues, the Developer may not submit
or cause to be submitted to the City any Written Requisition pursuant to this Section 6.2 and has
no claim upon any money in the Project Fund.
Section 6.3. Final Disbursement. Upon final completion of the Work and acceptance
by the City, the Developer will submit to City a final Written Requisition for payment of all
remaining sums. Retainage shall be disbursed to the Developer along with the final disbursement.
Payment of the final payment is subject to the provisions of this Article VI. The Developer will
deliver to City copies of conditional final lien waivers executed by all subcontractors, suppliers or
lien claimants along with the final Written Requisition together with the final payroll report and
prevailing wage affidavit required by Section 5.2. Any amount in the Project Fund that is not
needed to pay the final Written Requisition shall be retained by the City.
Section 6.4. Developer Reimbursement. The City agrees to reimburse the Developer
for the Developer's Deposit required pursuant to Section 6.1. The amount of the reimbursement
will be equal to the Developer's Deposit, plus interest thereon at the rate of 5.0% per year, accruing
from the date of the deposit (the "Reimbursement Amount"). The first payment of the
Reimbursement Amount shall occur within 30 days of acceptance of the Public Improvements as
provided in Section 4.4 from any unspent amount of the Developer's Deposit. hi addition, the
City shall make annual payments equal to the lesser of $229,000 and the remaining Reimbursement
Amount on each December 1, commencing December 1, 2021, until the Reimbursement Amount
is paid in full. The City may, at its option, repay all or a portion of the Reimbursement Amount
or prepay all or a portion of any annual installment at any time without penalty.
Section 6.5. No Citv Pledge or Debt. The City's obligation to make payments to the
Developer pursuant to this Agreement is not an obligation or pledge of any money raised by
taxation and does not represent or constitute a debt or pledge of the faith and credit of the City.
All payments to be made by the City hereunder are subject to appropriation of sufficient funds by
City Council to make such payments. Except for the payments from the Project Fund and pursuant
to Section 6.4 and in the aggregate amount described in this Agreement and for the reimbursements
of Cost of the Work, the Developer will receive no other money from the City in connection with
the construction of the Public Improvements.
-21-
Section 6.6. Minimum Service Pavments.
The Developer will reasonably cooperate with the City in the creation of a tax increment
financing area encompassing the Property. The Property will be subject to a minimum service
payment obligation (the "Minimum Service Payment Obligation"), which constitutes a minimum
service payment obligation under Ohio Revised Code Section 5709.91.
Commencing for calendar year 2023 and continuing until calendar year 2052, the
Minimum Service Payment Obligation for the Property for each calendar year will be an amount
equal to (i) for calendar year 2023, $3 million, for calendar year 2024, $7 million and for calendar
year 2025 and thereafter, $10.4 million (which represents the Developer's guaranteed minimum
market value for the Property) multiplied by 35% and further multiplied by the then current
applicable effective non -school real property tax rate for the Property, less (ii) the sum of the
service payments in lieu of taxes (the "Service Payments") anticipated to be received by the City
in that calendar year under the TIF Ordinance and in respect of the Property; provided that the
Minimum Service Payment Obligation shall not equal less than zero dollars. The foregoing
Minimum Service Payment Obligation shall no longer apply at such time as the appraised value
of the Property, as determined from time -to -time by the Franklin County, Ohio Auditor, equals
130% (i.e., $13.52 million) or more of the value used to calculate the Minimum Service Payment
Obligation (i.e., $10.4 million) as detailed above for a period of four (4) consecutive tax years.
It is intended and agreed, and it will be so provided by the Developer or other owner of the
Property in a declaration relating to the Property (which shall be substantially in the form attached
hereto as EXHIBIT G and is referred to herein as the "Declaration") recorded by the Developer or
such other owner, within 30 days following the first date when (i) this Agreement has become
effective, (ii) the legislation approving the tax increment financing has been passed by Dublin City
Council and becomes legally effective, and (iii) the declarant is the owner of the applicable portion
of the Property, that the covenants provided in that Declaration are covenants running with the
land. The covenants set forth in the Declaration are hereby incorporated into this Agreement by
this reference. No disbursement from the Project Fund will be made until a Declaration is recorded
as a covenant running with the land with respect to the Property, with priority over any other liens
or encumbrances to which the Property is subj ect other than those in favor of or approved in writing
by the City.
(END OF ARTICLE VI)
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ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1. General. Except as otherwise provided in this Agreement, in the event of
any default in or breach of this Agreement, or any of its terms or conditions, by either Party, such
Party will, upon written notice from the other, proceed promptly to cure or remedy such default or
breach, and, in any event, within thirty (30) days after receipt of such notice. In the event such
default or breach is of such nature that it cannot be cured or remedied within that 30 day period,
then the Party will upon written notice from the other commence its actions to cure or remedy the
breach within the 30 day period, and proceed diligently thereafter to cure or remedy the breach.
In case such action is not taken or not diligently pursued, or the default or breach is not cured or
remedied within a reasonable time, the following remedies may be pursued: (a) the aggrieved Party
may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy
such default or breach, including, but not limited to, proceedings to compel specific performance
by the Party in default or breach of its obligations; (b) the aggrieved Party may terminate this
Agreement; and (c) in addition, if the default or breach is a failure of the Developer to achieve
completion of the Work by the date set forth in Section 4.2 herein, as adjusted by Change Order
or Change Directive, City may perform the Developer's obligations under this Agreement and pay
the costs thereof from any lawfully available monies, including amounts on deposit in the Project
Fund. The Developer and its surety are responsible for any amount necessary to perform those
obligations in excess of the amounts on deposit in the Project Fund.
Section 7.2. Other Rights and Remedies; No Waiver by Delay. The Parties each have
the right to institute such actions or proceedings as it may deem desirable for effectuating the
purposes of, and its remedies under, this Agreement; provided, that any delay by either Party in
instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under
this Agreement does not operate as a waiver of such rights or to deprive it of or limit such right in
any way (it being the intent of this provision that neither Party should be constrained, so as to avoid
the risk of being deprived of or limited in the exercise of the remedy provided in this Agreement
because of concepts of waiver, laches, or otherwise, to exercise such remedy at atime when it may
still hope otherwise to resolve the problems created by the default involved); nor does any waiver
in fact made by either Party with respect to any specific default by the other Party under this
Agreement be considered or treated as a waiver of the rights of such Party with respect to any other
defaults by the other Party to this Agreement or with respect to the particular default except to the
extent specifically waived in writing.
Section 7.3. Force Maieure. Notwithstanding anything contained in Sections 7.1 and
7.2 to the contrary and except as otherwise provided herein, no Party will be considered in default
in its obligations to be performed hereunder, if delay in the performance of such obligations is due
to an event of Force Majeure beyond its control and without its fault or negligence; it being the
purpose and intent of this paragraph that in the event of the occurrence of any such enforced delay,
the time or times for performance of such obligations will be extended for the period of the
enforced delay; provided, however, that the Party seeking the benefit of the provisions of this
Section must, within fourteen (14) days after the beginning of such enforced delay, notify the other
Party in writing thereof and of the cause thereof and of the duration thereof or, if a continuing
-23-
delay and cause, the estimated duration thereof, and if the delay is continuing on the date of
notification, within thirty (30) days after the end of the delay, notify the other Party in writing of
the duration of the delay.
(END OF ARTICLE VII)
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ARTICLE VIII
CONTINGENCIES; DISPUTE RESOLUTION PROVISIONS
AS TO AMENDMENTS AND CLAIMS
Section 8.1 Notice and Filing of Requests. Any request by the City or the Developer
for amendment of the terms of this Agreement, including without limitation, for additional funds
or time for performance must be made in writing and given prior to completion of the Public
Improvements. The City is under no obligation to provide additional funds except in the case of a
Change Directive that causes the total Cost of the Work (as adjusted by any Change Orders
previously or thereafter approved) to exceed the amount deposited into the Project Fund.
Section 8.2. Request Information. In every written request given pursuant to
Section 8.1, the Party giving notice must provide the nature and amount of the request;
identification of persons, entities and events responsible for or related to the request; and
identification of the activities on the applicable schedule affected by the request.
Section 8.3. Meeting. Within ten (10) days of receipt of the request given pursuant to
Section 8. 1, the Parties will schedule a meeting in an effort to resolve the request and endeavor to
reach a decision on the request promptly thereafter or reach a decision on the request without a
meeting, unless a mutual agreement is made to extend such time limit. The meeting will be
attended by persons expressly and fully authorized, subject to any necessary City Council
approvals, to resolve the request on behalf of the City and the Developer.
Section 8.4. Mediation. If no mutually acceptance decision is reached within thirty (30)
days of the date of the meeting held pursuant to Section 8.3, the Parties may submit the matter to
mediation, upon written agreement between them, or exercise any other remedy permitted to them
at law or in equity.
Section 8.5. Performance. The City and the Developer will proceed with their
respective performance of this Agreement during any dispute resolution process, unless otherwise
agreed by them in writing.
(END OF ARTICLE VIII)
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ARTICLE IX
MISCELLANEOUS
Section 9.1. Assignment. This Agreement may not be assigned without the prior written
consent of the non -assigning party; provided that the Developer may make one or more collateral
assignments of all or a portion of its rights and obligations under this Agreement to one or more
lenders or portion thereof providing financing for the Public Improvements, as long as the assignment
provides that the Developer remains liable for all its obligations under this Agreement. The City will
cooperate with any reasonable assignment request by a lender and the City Manager is authorized to
execute and deliver reasonable and customary instruments requested by any such lender to evidence
the City's acknowledgment or consent to that assignment and the lender's collateral interest in this
Agreement.
Section 9.2. Binding Effect. The provisions of this Agreement shall be binding upon
the successors and/or assigns of the Parties.
Section 9.3. Captions. The captions and headings in this Agreement are for
convenience only and in no way define, limit or describe the scope or intent of any provisions or
sections of this Agreement.
Section 9.4. Day for Performance. Wherever herein there is a day or time period
established for performance and such day or the expiration of such time period is a Saturday,
Sunday or legal holiday, then such time for performance shall be automatically extended to the
next business day.
Section 9.5. Entire Agreement. This Agreement constitutes the entire Agreement
between the Parties on the subject matter hereof and supersedes all prior negotiations, agreements
and understandings, both written and oral, between the Parties with respect to such subject matter.
This Agreement may not be amended, waived or discharged except in an instrument in writing
executed by the Parties.
Section 9.6. Executed Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to constitute an original, but all of which together
shall constitute but one and the same instrument. It shall not be necessary in proving this
Agreement to produce or account for more than one of those counterparts. Counterparts and
signatures transmitted or stored by facsimile or electronic means (such as e-mailed .pdfs) are
deemed to be original counterparts or signatures for all purposes.
Section 9.7. Extent of Covenants; No Personal Liability. All covenants, obligations
and agreements of the Parties contained in this Agreement shall be effective to the extent
authorized and permitted by applicable law. No such covenant, obligation or agreement shall be
deemed to be a covenant, obligation or agreement of any present or future member, officer, agent
or employee of the City other than in his or her official capacity, and neither the members of the
legislative body of the City nor any City official shall be liable personally under this Agreement
-26-
or be subject to any personal liability or accountability by reason of the execution thereof or by
reason of the covenants, obligations or agreements of the City contained in this Agreement.
Section 9.8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio without regard to its principles of conflicts of laws.
All claims, counterclaims, disputes and other matters in question between the City, its agents and
employees, and the Developer, its employees and agents, arising out of or relating to this
Agreement or its breach will be decided in a court of competent jurisdiction within Franklin
County, Ohio.
Section 9.9. Notices. Except as otherwise specifically set forth in this Agreement, all
notices, demands, requests, consents or approvals given, required or permitted to be given
hereunder shall be in writing and shall be deemed sufficiently given if actually received or if hand -
delivered or sent by recognized, overnight delivery service or by certified mail, postage prepaid
and return receipt requested, addressed to the other Party at the address set forth in this Agreement
or any addendum to or counterpart of this Agreement, or to such other address as the recipient
shall have previously notified the sender of in writing, and shall be deemed received upon actual
receipt, unless sent by certified mail, in which event such notice shall be deemed to have been
received when the return receipt is signed or refused. For purposes of this Agreement, notices
shall be addressed to:
(i) the City at: City of Dublin, Ohio
5200 Emerald Parkway
Dublin, Ohio 43017
Attention: City Manager
(ii) the Developer at: The Daimler Group, Inc.
1533 Lake Shore Drive
Columbus, Ohio 43204
Attention: Paul G. Ghidotti
The Parties, by notice given hereunder, may designate any further or different addresses to
which subsequent notices, certificates, requests or other communications shall be sent.
Section 9.10. No Waiver. No right or remedy herein conferred upon or reserved to any
Party is intended to be exclusive of any other right or remedy, and each and every right or remedy
shall be cumulative and in addition to any other right or remedy given hereunder, or now or
hereafter legally existing upon the occurrence of any event of default hereunder. The failure of
any Party to insist at any time upon the strict observance or performance of any of the provisions
of this Agreement or to exercise any right or remedy as provided in this Agreement shall not impair
any such right or remedy or be construed as a waiver or relinquishment thereof. Every right and
remedy given by this Agreement to the Parties hereto may be exercised from time to time and as
often as may be deemed expedient by the parties hereto, as the case may be.
Section 9.11. Ohio Laws. Any reference to a section or provision of the Constitution of
the State, or to a section, provision or chapter of the Ohio Revised Code shall include such section,
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provision or chapter as modified, revised, supplemented or superseded from time to time; provided,
that no amendment, modification, revision, supplement or superseding section, provision or
chapter shall be applicable solely by reason of this paragraph if it constitutes in any way an
impairment of the rights or obligations of the Parties under this Agreement.
Section 9.12. Recitals and Exhibits. The Parties acknowledge and agree that the facts
and circumstances as described in the Recitals and Exhibits hereto are an integral part of this
Agreement and as such are incorporated herein by reference.
Section 9.13. Severability. If any provision of this Agreement, or any covenant,
obligation or agreement contained herein is determined by a court to be invalid or unenforceable,
that determination shall not affect any other provision, covenant, obligation or agreement, each of
which shall be construed and enforced as if the invalid or unenforceable portion were not contained
herein. That invalidity or unenforceability shall not affect any valid and enforceable application
thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective,
operative, made, entered into or taken in the manner and to the full extent permitted by law.
Section 9.14. Survival of Representations and Warranties. All representations and
warranties of the Parties in this Agreement shall survive the execution and delivery of this
Agreement.
END OF ARTICLE IX - SIGNATURE PAGES TO FOLLOW)
_28_
IN WITNESS WHEREOF, the Parties have caused this Infrastructure Agreement (The Corners
at Rings and Frantz Road) to be executed in their respective names by their duly authorized
representatives, all as of the date first written above.
Approved as to Form:
Jennifer Readler, Director of Law
CITY OF DUBLIN, OHIO
Lo
Dana L. McDaniel, City Manager
THE DAIMLER GROUP, INC.
Paul G. Ghidotti
Executive Vice President
FISCAL OFFICER'S CERTIFICATE
The undersigned, Interim Director of Finance of the City of Dublin, Ohio under the foregoing
Agreement, certifies hereby that the moneys required to meet the obligations of the City during the
year 2019 under the foregoing Agreement have been appropriated lawfully for that purpose, and are
in the Treasury of the City or in the process of collection to the credit of an appropriate fund, free
from any previous encumbrances. This Certificate is given in compliance with Sections 5705.41 and
5705.44, Ohio Revised Code.
Dated: 12019
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Matthew Stiffler
Interim Director of Finance
City of Dublin, Ohio
EXHIBIT A
DEPICTION AND DESCRIPTION OF PUBLIC IMPROVEMENTS
[attached]
A-1
EXHIBIT B
FORM OF CONTRACT ADDENDUM
1. Contractor acknowledges and agrees that The Daimler Group, Inc. (the "Developer") is an
independent contractor, and not an agent, of the City of Dublin (the "City") employed to
provide construction services for the Project (as defined below) pursuant to an Infrastructure
Agreement (The Corners at Rings and Frantz Road) by and between the Developer and the
City (the "Infrastructure Agreement').
2. Contractor acknowledges and agrees that the obligations of the City to pay costs under this
contract are limited to funds on deposit in the Project Fund held by the City for the Project in
the amount set forth below (such fund, the "Project Fund"), and that the City is not obligated
to use any money or assets other than the Project Fund to pay any amount due under this
contract. Without limiting the foregoing, it is expressly understood and agreed that neither
the Developer, the Contractor, nor any other person has any right or claim to any payment
from, or any claim on any revenues or assets of, the City other than amounts held in the
Project Fund to pay any obligations under this contract, and this contract does not constitute
a general debt or a pledge of the general credit of the City, nor gives rise to any pecuniary
liability of the City except from, and all such obligations are payable solely and exclusively
from, the Project Fund as further described above.
3. Contractor acknowledges that all liens for labor and materials provided under this contract are
subject to the requirements of Ohio Revised Code Section 1311.25 et seq. The Contractor
acknowledges receipt of the Notice of Commencement for the Project. Contractor will provide,
and will require all subcontractors to provide, conditional lien waivers for all labor and
materials when submitting requests for payment under this contract.
4. The Contractor will provide a surety bond naming the City and Developer as payees prior to
commencement of work under this contract. The surety bond must be in the form provided by
Ohio Revised Code Section 153.57 and must cover all costs of work and materials provided
under this contract throughout the term of this contract and the guaranty period described in
paragraph 5. The surety bond must be issued by a surety company authorized by the Ohio
Department of Insurance to transact business in the State of Ohio with an A.M. Best Company
Policyholders Rating of "A-" or better and has or exceeds the Best Financial Size Category
Class of Class VI at the time the bond is underwritten. The bond must also be supported by a
power of attorney for the agent signing the surety.
5. Contractor warrants to the city that: (a) all work under this contract will be performed with the
standard of care normally exercised by nationally recognized organizations engaged in
performing comparable services; (b) all materials incorporated into that work are of good
quality and new unless otherwise required or permitted by the plans and specifications for the
Project approved by the City; (c) all such materials and work are of good and workmanlike
quality, free of defects not inherent in the quality required or permitted; (d) all such materials
and work will perform all functions for which they are intended; (e) all such materials and
work conform to the requirements of the plans and specifications for the Project as approved
C
by the City and this contract in all material respects; (f) all such materials and work will be
free from defects (without regard to the standard of care exercised in the performance of the
work) for a period of one year after final completion of all work required by this contract.
Contractor will, at its sole cost and expense, (g) promptly correct all of the work not in material
conformance with the contract and the plans and specifications for the work to be performed
under this contract, (ii) correct any defects in materials and workmanship (without regard to
the standard of care exercised in the performance of the work) that appear within a period of
one (1) year (two (2) years for storm sewer improvements dedicated to the City) after written
conditional acceptance of the work performed under this contract by the City; and (iii) replace,
repair or restore any parts of the work or any of the materials placed therein that are injured or
damaged as a consequence of corrective action taken pursuant hereto. Contractor will remove,
in a manner that at all times complies with all applicable laws, including environmental laws,
from the Proj ect all portions of the Contractor's work that are defective or nonconforming and
that have not been corrected under this paragraph unless removal is waived by the City in
writing. If Contractor fails to make or cause to be made corrections required by this paragraph,
the City may do so at the sole expense of Contractor and Contractor will pay or reimburse all
such amounts on demand with interest at the rate of ten percent per annum from the date of
demand. The warranties provided in this paragraph are in addition to, and do not limit, any
other guarantee, warranty or remedy provided by law, a manufacturer, this contract, each of
which other guarantee, warranty or remedy may be enforced by the City as a third party
beneficiary of this contract. Contractor further hereby assigns any guarantees or warranties
provided to it by any of its subcontractors to the City.
6. The Contractor will indemnify, defend and hold harmless the City and its officials, agents and
employees from and against any and all suits, claims damages, losses and expenses, including
reasonable attorneys' fees, arising or allegedly arising out of, or resulting from the Contractor's
or its agents, subcontractors, employees or representatives performance of its obligations under
this contract or any work performed by it or its subcontractors. With respect to the work
performed under this contract, and solely to the extent necessary to effect such indemnity, the
Contractor hereby expressly and specifically waives the constitutional and statutory immunity
from suit and causes of action provided to employers in Section 35, Article II of the Ohio
Constitution and Section 4123.74 ofthe Ohio Revised Code, as well as any other similar immunity
provided for or by any statute, law or constitutional provision of the State of Ohio and of any other
applicable state. The Contractor will promptly reimburse the City and its officers, agents and
employees for any cost, expense or reasonable attorneys' fees incurred on account of any such
suit or claim incurred or in enforcing the terms of this contract against the Contractor.
7. Contractor represents and warrants to the City that it is and will remain in compliance and,
upon request, will provide to the City appropriate statements or affidavits stating that it is in
compliance with all legal requirements for contracting with Ohio political subdivisions
including, without limitation, all requirements imposed by State of Ohio campaign financing
laws contained in Chapter 3517, Ohio Revised Code, any provisions of Sections 2921.42, Ohio
Revised Code (unlawful interest in public project), that may be applicable to it, and that it is
not aware of any finding for recovery issued against it by the Auditor of the State of Ohio that
is "unresolved" under Ohio Revised Code Section 9.24. Contractor shall submit the personal
property tax affidavit required by Ohio Revised Code Section 5719.042 and no payments shall
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be made under this contract until the Contractor has paid any such delinquent taxes and any
penalties and interest thereon.
8. Contractor acknowledges that the Developer may be entitled to an Ohio sales and use tax
exemption pursuant to Ohio Revised Code Section 5739.02(B) for building and construction
materials or services provided under this contract and Contractor will not pay any such Ohio
sales or use tax to the extent that exemption is applicable, but only if the Contractor has been
provided an appropriate certification (or copy thereof) signed by the City evidencing the
availability of that exemption. Contractor will, and will require all subcontractors and vendors
to, retain copies of all records required under Ohio Revised Code Section 5739.03 in
connection with the sales or use tax exemption for at least five years after completion of the
work under this contract and will provide those records to the Tax Commissioner of the State
of Ohio upon request.
9. Contractor will comply, and to cause compliance by its subcontractors, with the requirements
of Ohio Revised Code Chapter 4115 for the payment of prevailing wages for the work
performed pursuant to this contract. Contractor must ensure that all laborers and mechanics
employed by Contractor (or by any of its subcontractors) in the performance of such work are
paid at the prevailing rates of wages of laborers and mechanics for the class of work called for
with respect to that work, which wages must be determined in accordance with the
requirements of Ohio Revised Code Chapter 4115; provided that in the case of any work
performed by Contractor's or any of its subcontractor's regular bargaining unit employees who
are covered under a collective bargaining agreement that was in existence prior to the date of
this contract, the rate of pay provided under the applicable collective bargaining agreement
may be paid to such employees. Contractor further acknowledges and agrees that performance
of such work is the construction of a "public improvement" within the meaning of Ohio
Revised Code Section 4115.03, and that as a result, Contractor must, and must cause all of its
subcontractors performing any portion of such work to, comply with all applicable
requirements of Ohio Revised Code Sections 4115.03 to 4115.16 and other applicable laws
related thereto. Upon request from time to time by either the City, Contractor must promptly
deliver to the City satisfactory evidence that Contractor and all of its subcontractors have
complied with the foregoing requirements. The prevailing wage coordinator will be the City's
Contract & Procurement Coordinator. Contractor represents and warrants that neither it nor any
of its subcontractors has been or will be included on any list described in Ohio Revised Code
Section 4115.133.
10. Notwithstanding any other provision of this contract to the contrary, the City: (a) is not
obligated to indemnify any party pursuant to the terms of this contract; and (b) retains all rights
of set-off, counterclaim, recoupment and other similar remedies. All payments by the City for
work performed under this contract are expressly conditioned on Contractor's compliance with
the requirements of this contract and performance of its obligations under this contract
(including this addendum) in all material respects.
11. The Contractor hereby represents and warrants that it practices and will continue to practice
nondiscriminatory hiring in its operations and in all solicitations or advertisements for
employees placed by it or on its behalf and will require all subcontractors to do the same. As
C
used in this Section, the term "nondiscriminatory hiring" means that no individual may be
denied employment solely on the basis of race, religion, sex, disability, color, national origin,
or ancestry or any other classification that is now or may become a classification protected by
Federal law or the laws of the State of Ohio.
12. Contractor will withhold and pay, will require all of its subcontractors to withhold and pay, all
City income taxes due or payable with respect to wages, salaries, commissions and any other
income subject to the provisions of Chapter 35 of the Dublin City Code.
13. Contractor and its subcontractors are solely responsible for their respective compliance with
the Occupational Safety and Health Act of 1970.
14. All representations and warranties under this addendum and contract are made to the City and
the Developer. Any material inaccuracy of any representation at the time it was made and any
material failure to fulfill any warranty or obligation hereunder is a breach of this contract by
Contractor.
15. The Contractor acknowledges and agrees that upon the occurrence and continuation of an
Event of Default by the Developer under the Infrastructure Agreement, the City may exercise
any rights of the Developer under this contract and the Contractor will accept such exercise of
rights in lieu of exercise of those rights by the Developer.
16. The obligations of the Contractor under this addendum survive the termination of this contract.
17. In case of conflict between the terms of this addendum and the remainder of this contract, the
terms of this addendum prevail.
Accepted and Agreed by:
Name & Title:
Name of Contract:
Name of Project:
Amount in Project Fund: $_
as Contractor
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EXHIBIT C
FORM OF CHANGE ORDER
[attached]
C-1
Cityof Dublin
CHANGE ORDER/DIRECTIVE NUMBER
Project Name'. Frantz/RlnasRoad Date:
Project Number:
Contractor Name: The Daimler rmun. Inc.
Subcontractor Name:
Type of Change (Once
The following changes are made to the Contract Documents:
Ref
IVo.
Item
No.
Description
Qty
Uni
t
Unit
Price
Extended
Price
Explanation
$ M
City Funding'.
ELM
Ref No
Explanation
Ref No
Explanation
14
Total
of Npcossity
Ref No
Explanation
ELM
Current Cost of the Walk adjusted by previous Change Orders/Directives
$000
The Cast of the Work will be ❑Increased 0 decreased 0 no change
due to this Change Order/Directive b
Ref No
Explanation
$ M
City Funding'.
ELM
Ref No
Explanation
Ref No
Explanation
Chance to Contract Price:
Original Cost of the Work'.
ELM
Current Cost of the Walk adjusted by previous Change Orders/Directives
$000
The Cast of the Work will be ❑Increased 0 decreased 0 no change
due to this Change Order/Directive b
$00 00
New Cost of the Walk (Including this Change Order/Directive)'.
$ M
City Funding'.
ELM
C1
Change to Contract Completion Date:
Due to this change the Contract Completion Date:
❑Is increased by Calendar Days
❑Is decreased by Calendar Days
❑Is Not Changed
Original Contract Completion Date:
Current Contract Completion date as adjusted by previous Change
Orders/Directives:
New Contract Completion Date as adjusted by this Change
Order/Directive:
The Contractor and Subcontractor hereby agrees to the contract changes set forth in this Change
Order/Directive and releases the City of Dublin from any further obligation for compensation for any
known or suspected substantive direct and indirect costs incurred except as mutually agreed and
described in the Explanation of Necessity.
THE DAIMLER GROUP, INC.
By:
Signature Date
Print Name:
Title:
C-2
CITY OF DUBLIN, OHIO
By:
Dana L. McDaniel Date
City Manager
By:
Paul A. Hammersmith, P.E. Date
Director of Engineering
By:
Megan D. O'Callaghan, P.E. Date
Director of Public Works
By:
Matthew Stiffler Date
Interim Director of Finance
EXHIBIT D
APPROVED PUBLIC IMPROVEMENTS BUDGET
[attached]
D-1
EXHIBIT E
PERSONAL PROPERTY TAX AFFIDAVIT
(O.R.C.§ 5719.042)
State of Ohio
County of ss:
(Name)
of
being first duly sworn, deposes and says that he/she is the
(Title) (Name and Address of Contractor)
"Contractor") and as its duly authorized representative, states that effective this
, 201 , the Contractor:
_ (the
day of
O is charged with delinquent personal property taxes on the general list of personal
property as set forth below:
Countv Amount (include total amount penalties and interest thereon)
County $
County $
County $
O is not charged with delinquent personal property taxes on the general list of
personal property in any Ohio county.
(Affiant)
Sworn to and subscribed before me by the above-named affiant this day of
1201 .
(Notary Public)
My commission expires
E-1
201
EXHIBIT F
WRITTEN REQUISITION
No.
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, Ohio 43017
Attention: Director of Finance
Subject: Certificate and Request for Disbursement of Funds from the Project Fund
In accordance with the provisions of Section 6.2 of the Infrastructure Agreement, dated
, 2019 (the "Agreement') by and between the City and The Daimler Group, Inc. (the
"Developer"), you are hereby requested to disburse from the Project Fund described above, and
the amount of $ as more fully set forth on the attached Project Payment Request
attached hereto to be paid pursuant to this Written Requisition to the Developer at
. All capitalized terms not otherwise defined in this Written Requisition
have the meanings assigned to them in the Agreement.
The undersigned Authorized Developer Representative does hereby certify in compliance
with Section 6.2 of the Agreement that each of the following are true and correct:
(i) I have read the Agreement and definitions relating thereto and have reviewed
appropriate records and documents of the Developer relating to the matters covered by this Written
Requisition.
(ii) The amount and nature of the portion of the Cost of the Work that has been
completed and requested to be paid, subject to retainage as set forth in Section 6.2 of the
Agreement, are shown on Schedule A attached hereto.
(iii) The disbursement herein requested is for an obligation properly incurred, is aproper
charge against the Project Fund as a Cost of the Work, has not been the basis of any previous
withdrawal from the Project Fund and was made in accordance with the Construction Documents.
(iv) The Public Improvements have not been materially injured or damaged by fire or
other casualty in a manner which, if not repaired or replaced, would materially impair the ability
of the Developer to meet its obligations under the Agreement.
(v) The Developer is in material compliance with all provisions and requirements of
the Agreement, including, but not limited to, all prevailing wage requirements. All prevailing
wage reports related to Work for which reimbursement is requested hereunder are attached to this
Written Requisition.
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(vi) No uncured Event of Default or breach of the Agreement on the part of the
Developer presently exists, and no event which but for the lapse of time or the giving of notice or
both would be an Event of Default or breach of the Agreement on the part of the Developer has
occurred and is continuing.
(vii) Attached hereto as Schedule B are conditional lien waivers from any materialmen,
contractors and subcontractors who have provided services or materials to the Public
Improvements as required by Section 6.2 of the Agreement, and the Developer further
acknowledges its obligation to require, or require provision of, certain security pursuant to Section
5.8 of the Agreement in the event any mechanic's liens are filed in connection with the Public
Improvements.
(viii) The Public Improvements are being and have been installed substantially in
accordance with the Construction Documents for the Public Improvements and all materials for
which payment is requested have been delivered to and remain at the location where they are to be
installed or are securely stored at an offsite location approved by the City.
(ix) The payment requested hereby does not include any amount which is entitled to be
retained under any holdbacks or retainages provided for in any agreement, and such amounts that
are entitled to be retained are reflected in Schedule A attached hereto.
(x) The Developer has asserted its entitlement to all available manufacturer's
warranties to date upon acquisition of possession of or title to such improvements or any part
thereof which warranties have vested in the Developer and must be wholly transferable to the City.
(xi) All money of the Project Fund heretofore disbursed has been spent in accordance
with the Written Requisition applicable thereto.
(xii) Attached hereto as Schedule C are unconditional lien waivers for any outstanding
conditional lien waivers provided in conjunction with previous Written Requisitions.
EXECUTED this day of 1201
Authorized Developer Representative
F-2
EXHIBIT G
FORM OF DECLARATION
TAX INCREMENT FINANCING DECLARATION OF COVENANTS
This TAX INCREMENT FINANCING DECLARATION OF COVENANTS (this
"Declaration") is made by [NAME OF OWNER], an [Ohio] limited liability company having its
address at (the "Declarant.
WITNESSETH:
WHEREAS, the Declarant has acquired certain parcels of real property located in the City of
Dublin, Ohio (the "City, a description of which real property is attached hereto as ATTACHMENT A
(with each parcel as now or hereafter configured, a "Parcel', and collectively, the "Parcels"),
having acquired such fee simple title by instrument No. recorded in the Official
Records of the Office of the Recorder of Franklin County, Ohio (the "County Recorder"), as O.R.
, Page ; and
WHEREAS, the Declarant contemplates making or having made private improvements to the
Parcels; and
WHEREAS, the City, by its Ordinance No. -19 (the "TIF Ordinance") has declared that
one hundred percent (100%) of the increase in the assessed value of each Parcel subsequent to the
effective date of the TIF Ordinance (such increase hereinafter referred to as the "Improvement' as
further defined in Ohio Revised Code Section 5709.40 is a public purpose and is exempt from taxation
(such exemption referred to herein as the "TIF Exemption") for a period commencing with the first
tax year that begins after the effective date of the TIF Ordinance and in which an Improvement first
appears on the tax list and duplicate of real and public utility property for such Parcel and ending on
the earlier of (a) thirty (30) years after such commencement or (b) the date on which the City can no
longer require service payments in lieu of taxes, all in accordance with the requirements of Ohio
Revised Code Sections 5709.40, 5709.42 and 5709.43 (collectively, the "TIF Statutes") and the TIF
Ordinance; and
WHEREAS, it is necessary to construct or cause to be constructed certain public infrastructure
improvements (the `Public Improvements") specified in the TIF Ordinance, which Declarant agrees
will directly benefit the Parcels; and
WHEREAS, the TIF Ordinance provides that the owner of the Parcel make service payments
in lieu of taxes with respect to any Improvement on that Parcel (the "Service Payments") which
Service Payments will be used to make payments to the Dublin City School District and Tolles Career
and Technical Center and to pay costs of the Public Improvements, all pursuant to and in accordance
with the TIF Statutes and the TIF Ordinance; and
WHEREAS, the Declarant and the City entered into an Infrastructure Agreement dated as of
2019 (the Agreement'), a copy of which may be obtained from the office of the City
Manager of the City at 5200 Emerald Parkway, Dublin, Ohio 43017; and
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WHEREAS, the Agreement creates an obligation that the owners of the Parcels make
minimum service payments with respect to those Parcels (the `Minimum Service Payments"); and
WHEREAS, this Declaration is being made and filed of record pursuant to Section 5 of
that Agreement.
NOW, THEREFORE, the Declarant, for itself and its successors and assigns to or of each
Parcel (collectively, the "Owners" and individually, each an "Owner"), hereby declares that the
forgoing recitals are incorporated into this Declaration by this reference and that the Parcels and any
improvements thereon will be held, developed, encumbered, leased, occupied, improved, built upon,
used and conveyed subject to the terms and provisions of this Declaration:
Section 1. Minimum Service Payments. In addition to the obligation to make Service
Payments pursuant to the TIF Statutes and the TIF Ordinance, the Owners agree to a minimum
service payment obligation (the `Minimum Service Payment Obligation") for each Parcel owned
by such respective Owner, all pursuant to and in accordance with the requirements of the TIF
Statutes, the TIF Ordinance and this Declaration. The Owners agree that the Minimum Service
Payment Obligation constitutes a minimum service payment obligation under Ohio Revised Code
Section 5709.91 and shall be supported by a lien on the Parcels pursuant to Ohio Revised Code
Sections 5709.91 and 323.11. Commencing for calendar year 2023 and continuing until calendar
year 2052 the Minimum Service Payment Obligation for all Parcels for each calendar year will be
an amount equal to (i) for calendar year 2023, $3 million, for calendar year 2024, $7 million and
for calendar year 2025 and thereafter, $10.4 million (which represents the guaranteed minimum
market value for the Parcels) multiplied by 35% and further multiplied by the then current
applicable effective non -school real property tax rate forthe Parcels, less (ii) the sum of the Service
Payments anticipated to be received by the City in that calendar year under the TIF Ordinance
from the Parcels; provided thatthe Minimum Service Payment Obligation shall not equal less than
zero dollars. The foregoing Minimum Service Payment Obligation shall no longer apply at such
time as the appraised value of all Parcels, as determined from time -to -time by the Franklin County,
Ohio Auditor, equals 130% (i.e., $13.52 million) or more of the value used to calculate the
Minimum Service Payment Obligation (i.e., $10.4 million) as detailed above for a period of four
(4) consecutive tax years.
Each Parcel's share of the Minimum Service Payment Obligation in any calendar year will
be equal to that Parcel's assessed value divided by the assessed value of all Parcels, each as
recorded on the tax list and duplicate of Franklin County for the preceding calendar year and then
multiplied by the Minimum Service Payment Obligation. If a Minimum Service Payment
Obligation exists with respect to a Parcel in any calendar year, the City will prepare and send an
invoice for the amount of the Minimum Service Payment Obligation for that Parcel (such amount,
the `Minimum Service Payments") to the Owner for that Parcel at its registered address for tax
bills. The Owner must pay the Minimum Service Payments invoiced to the City pursuant to
payment instructions set forth in the invoice in immediately available funds within 30 days of its
delivery. The City may assess a 10% administrative fee and interest accruing at an annual rate of
10% on any Minimum Service Payments not paid within 35 days of the delivery of the invoice.
The City may certify delinquent Minimum Service Payments, fees and interest to the Franklin
County Auditor for collection on real property tax bills. Any late payments of amount so certified
will bear penalties and interest at the then current rate established under Ohio Revised Code
G-2
Sections 323.121 and 5703.47 or any successor provisions thereto, as the same may be amended
from time to time.
In the event that the Parcel is subject to an action that would foreclose the lien created by
this Declaration (such as a property tax foreclosure action), and provided that the Parcel is still
subject to the Minimum Service Obligation at the time that such foreclosure becomes effective,
the City may declare immediately due and payable all Minimum Service Payments projected to be
due in the then current year or any future year (until the TIF Exemption terminates) based on the
then current value of the Parcel (as determined by the Franklin County Auditor) and then current
real property tax rates applicable to the Parcel.
Section 2. Preservation of Exemption. Notwithstanding anything to the contrary set
forth in this Agreement, neither City nor any Owner, nor their respective successors, assigns or
transferees, shall take any action that may endanger or compromise the status of or cause the
revocation of the TIF Exemption.
Section 3. Failure to Make Pavments. Should any Owner of any Parcel fail to make
any payment required hereunder, such Owner shall pay, in addition to the payments it is required
to pay hereunder, such amount as is required to reimburse the City for any and all reasonably and
actually incurred costs, expenses and amounts (including reasonable attorneys' fees) required by
the City to enforce the provisions of the Agreement and this Declaration against that Owner.
Section 4. Exemption Applications. Each Owner further agrees to cooperate in the
preparation, execution and filing of all necessary applications to obtain from time to time the TIF
Exemption and to enable the City to collect Service Payments with respect to each Parcel it owns.
The Owners authorize the City to file any applications necessary to obtain from time to time the TIF
Exemption for each Parcel it owns.
Section 5. Provision of Information. The Owners agree to cooperate in all reasonable
ways with, and provide necessary and reasonable information to, the designated tax incentive
review council to enable that tax incentive review council to review and determine annually the
compliance of each Owner with the terms of this Declaration during the term of the TIF Exemption
for the Parcel. The Owners further agree to cooperate in all reasonable ways with, and provide
necessary and reasonable information to the City to enable the City to submit the status report
required by Ohio Revised Code Sections 5709.40(1) or 5709.41(E), as applicable, to the Director
of the Ohio Development Services Agency on or before March 31 of each year.
Section 6. Covenants to Run With the Land. The Owners agree that each of their
covenants contained in this Declaration are covenants running with the land and that they will, in
any event and without regard to technical classification or designation, legal or otherwise, be
binding to the fullest extent permitted by law and equity, for the benefit and in favor of, and
enforceable by, the City against each Parcel, as applicable, any improvements thereon and the
owner of the Parcel, without regard to whether the City has at any time been, remains or is an
owner of any land or interest therein to, or in favor of, which these covenants relate. Each Owner
agrees to include the covenants contained herein (by instrument number reference to this
Declaration) in any subsequent deed conveying that Owner's Parcel. The City has the right in the
event of any breach of any covenant herein contained to exercise all of the rights and remedies and
G-3
to maintain all actions or suits at law or in equity or in other proper proceedings to which it may
be entitled to cure that breach.
The Owners further agree that all covenants herein, whether or not these covenants are
included by any owner of a Parcel in any deed to that owner's successors and assigns, are binding
upon each subsequent owner and are enforceable by the City, and that any future owner of that Parcel,
or any successors or assigns of an Owner, will be treated as a Declarant, with respect to that Parcel
for all purposes of this Declaration.
The Owners further agree that their covenants herein will remain in effect so long as the
Minimum Service Payments can be collected unless otherwise modified or released in writing by
the City in a written instrument filed in the Official Records of the County Recorder. At any time
when this Declaration is no longer in effect, the City agrees to cooperate with any reasonable request
by the Owners) to execute (for recording by such Owner(s)) an instrument to evidence this fact.
Each Owner further agrees that, unless otherwise agreed by the City in a written and
recorded amendment to this Declaration, the covenants herein have priority over any other lien or
encumbrance on any Parcel it owns and any improvements thereon, except for encumbrances,
easements and restrictions applying to such Parcels and of record at the time that this Declaration
is recorded, except that, each Owner will cause any and all holders of mortgages or other liens
existing on each Parcel it owns as of the time of recording of this Declaration to subordinate such
mortgage or lien to those covenants running with the land. The Declarant acknowledges that the
provisions of Ohio Revised Code Section 5709.91, which specify that the Service Payments and
the Minimum Service Payments will be treated in the same manner as taxes for all purposes of the
lien described in Ohio Revised Code Section 323.11 including, but not limited to, the priority of
the lien and the collection of Service Payments and Minimum Service Payments applies to the
Parcels and any improvements thereon.
At the City's option and at its request, each Owner hereby agrees to provide such title
evidence with respect to the Parcel it owns, at no cost to the City, as is necessary to demonstrate
to the City's satisfaction that the covenants running with the land provided in this Declaration are
prior and superior to any other liens, encumbrances or other title exceptions, except for Permitted
Encumbrances.
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed and
effective as of .2019.
[OWNER]
By:
Printed:
Title:
G-4
STATE OF OHIO )
) ss
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this day of 12019,
by
behalf of said company.
of [Owner] an [Ohio] limited liability company, on
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal
on the date and year aforesaid.
This instrument is prepared by:
Notary Public
Greg Daniels
Squire Patton Boggs (US) LLP
41 S. High Street, Suite 2000
Columbus, Ohio 43215
G-5
Draft 11/12/19
REAL ESTATE TRANSFER AND DEVELOPMENT AGREEMENT
This REAL ESTATE TRANSFER AND DEVELOPMENT AGREEMENT (the "Transfer
Agreement" or Agreement") is made and entered into as of this day of
2019 (the "Effective Date"), by and between the City OF DUBLIN, OHIO (the "City"), a municipal
corporation duly organized and validly existing under the Constitution and laws of the State of
Ohio and its Charter, and THE DAIMLER GROUP, INC. ("Developer" and together with the City,
the "Parties"), an Ohio corporation.
RECITALS:
WHEREAS, City Council adopted the Dublin Corporate Area Plan in September of 2018 to
provide for a comprehensive development strategy for the Dublin Corporate Area, which consists
of approximately 1,000 acres of legacy office parks within the Metro Office, Blazer Research, and
Emerald Corporate business districts and the Frantz Road; and
WHEREAS, in furtherance of the Dublin Corporate Area Plan, the City issued a Request for
Qualifications for participation in a public-private partnership for the development of mixed-use
commercial office and retail space with public park and open space improvements to be located
west of Frantz Road, north of Rings Road, and south of Blazer Parkway (the "Transfer
Properties"), more particularly described in EXHIBIT A hereto and identified as consisting of
Subareas B1, B2 and 133; and
WHEREAS, the Developer responded to the City's Request for Qualifications and was
selected by the City to collaborate with City on the development the Transfer Properties and
associated infrastructure: and
WHEREAS, the City has determined that it would be in the best interests of the City to
contract with the Developer to provide for the construction and installation of certain Public
Improvements as further depicted and described in the form of Infrastructure Agreement attached
hereto as EXHIBIT B, inter alia, in the manner described herein; and
WHEREAS, City Council passed Ordinance No. -19 on 2019,
authorizing the execution and delivery of this Agreement; and
Now, THEREFORE, in consideration of the promises and covenants contained herein, and
to induce the Developer to proceed with the design and construction of the commercial
development and the Public Improvements, the Parties agree as follows:
(END OF RECITALS)
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree to the foregoing Recitals and as
follows:
ARTICLE I
TRANSFER OF REAL PROPERTY
Section 1.1 Agreement. On the terms and conditions set forth below, the City hereby
agrees to transfer to the Developer and the Developer hereby agrees to accept the transfer from
the City the Transfer Properties.
(End of Article I)
ARTICLE II
CONSIDERATION FOR EXCHANGE
Section 2.1 Consideration Transfer Properties. In exchange for the Transfer
Properties, Developer agrees to (i) construct the commercial improvements included in the
Preliminary Development Plan for Subarea 1, as modified by the Final Development Plan, (ii)
design, construct, finance a portion of and install the Public Improvements in the manner described
in the "Infrastructure Agreement' attached hereto as EXHIBIT B and (iii) on behalf of itself and any
future owner of Subarea Bl, maintain the maintain the public improvements located at the comer of
Frantz and Rings Road, and Frantz and Blazer Parkway. The foregoing maintenance agreement
shall be set forth in the Plat (defined below) or other instrument acceptable to the City and the
Developer and shall be a covenant running with land for Subarea 131 in favor of the City.
(End of Article II)
ARTICLE III
Section 3.1 Contingent Agreement. This Agreement shall be completely contingent
upon the Parties satisfaction or the waiver, if possible, of the contingency(ies) set forth in Section
3.2 below (the "Contingencies"), by 2020 (the "Contingency Period"). The date
upon which all Contingencies are either satisfied or waived, pursuant to Section 3.3 or otherwise,
shall be referred to as the "Contingency Date".
Section 3.02 Contingencies. The Contingencies are as follows:
(a) Dublin City Council approving of the Infrastructure Agreement, this Transfer
Agreement and the plat relating to the Transfer Properties (the "Plat');
(b) The Developer shall have determined, in its sole judgment, that the development
of the Transfer Properties in accordance with the Preliminary Development Plan
and any Final Development Plan is economically and physically feasible;
(c) Approval by the Developer and the City of the final Drawings and Specifications,
2
as defined in the Infrastructure Agreement, the budget, contractor and
subcontractor bids for the Public Improvement;
(d) The Developer's deposit into the "Project Fund" the agreed upon dollar amount
for the Public Improvement as shown in the approved budget and delivery of
Performance and Payment bond from the general contractor as outlined and
required in the Infrastructure Agreement; and
(e) Closing which includes the City transferring the Transfer Properties once the Plat
is recorded and the Developer executing the necessary easements that are
currently contemplated by the Preliminary Development Plan, any Final
Development Plan and the Plat (shall occur within thirty (30) days from the
satisfaction or waiver of all Contingencies by the City and Developer).
The Parties agree that the Developer will request and receive bids for the Public Improvements
in one or more packages, the number and form of which shall be subject to the reasonable
approval of the City Manager. The Developer agrees that with respect to each bid package, the
Developer shall request and receive no less than three (3) responsible bids, except as may
otherwise be approved in writing by the City Manager. The Developer shall award the contract
for each bid package subject to the reasonable approval of the Manager.
Section 3.3 Notice of Satisfaction or Waiver. The Contingencies above shall be
deemed to have been satisfied or waived, unless on or before the expiration of the Contingency
Period, one Party gives to the other Party notice of the Party's failure to satisfy the
Contingencies. Upon delivery of such notice, this Agreement shall terminate and thereafter both
Parties shall be fully released from all further liability and obligations hereunder.
(End of Article III)
ARTICLE IV
SUBMISSION MATERIALS
Section 4.1 The Citv's Cooperation. The City shall, within five (5) day after the
Effective Date, submit to the Developer the following information and/or materials not already
provided by the City, to the extent the same is available, for use by the Developer in preparation
for the transfers of the Transfer Properties.
(a) Surveys, site plans, topographical studies, plat maps, property descriptions and all
engineering drawings for the utilities and public services servicing the Transfer
Properties;
(b) Soils reports for the Transfer Properties;
(c) Environmental studies of the Transfer Properties; and
(d) Copies of the title insurance policies if any issued upon the City's acquisition of
the Transfer Properties or portions thereof.
3
All materials provided to the Developer pursuant to this Article IV shall be deemed
conditional. If this transaction is not closed in accordance with the terms hereof, such materials
shall be returned to the City upon demand. The City hereby agree to cooperate with the
Developer in all respects during the term of this Agreement, including the City joining in the
execution of any and all reasonable applications, instruments, licenses and documents
contemplated pursuant hereto.
(End of Article IV)
ARTICLE V
NO CITY REPRESENTATIONS: DEVELOPER DUE DILIGENCE
Section 5.1 No Warranties or Representations. It is understood and agreed that the
City is not making and has not at any time made any warranties or representations of any kind or
character, express or implied, with respect to the Transfer Properties, including, but not limited
to, any warranties or representations as to habitability, merchantability or fitness for a particular
purpose.
Section 5.2 Sale "AS IS". The Developer acknowledges and agrees that upon the
Closing, the City shall sell and convey to the Developer and the Developer shall accept the
Transfer Properties "AS IS, WHERE IS, WITH ALL FAULTS". The Developer has not relied
and will not rely on, and the City is not liable for or bound by, any express or implied warranties,
guaranties, statements, representations or information pertaining to the Transfer Properties or
relating thereto made or furnished by the City, or any agent representing or purporting to
represent the City, to whomever made or given, directly or indirectly, orally or in writing.
Section 5.3 The Developer's Due Diligence. The Developer represents to the City
that the Developer has conducted, or will conduct prior to the Closing, such investigations of the
Transfer Properties, including but not limited to, its environmental condition as the Developer
deems necessary or desirable to satisfy itself as to the condition of the Transfer Properties and
the existence or nonexistence or curative action to be taken with respect to the Transfer
Properties or any hazardous or toxic substance on or discharged from the Transfer Properties.
The Developer will rely solely upon its investigations and not upon any information provided by
or on behalf of the City or any agent or employee of the City with respect thereto. Upon the
Closing, the Developer shall assume the risk that adverse matters arising or existing on or before
the Closing, including but not limited to, defects and adverse environmental conditions, may not
have been revealed by the Developer's investigations.
The provisions of this Section shall survive the Closing or any termination of this
Agreement.
(End of Article V)
ARTICLE VI
EVIDENCE OF TITLE
Section 6.1 Title Commitment. The Developer at its sole cost and expense may
obtain a commitment (a "Title Commitment") from a title insurance company licensed to do
business in the State of Ohio to issue an ALTA Owner's Title Insurance Policy (Form 6/17/06-
4
the "Title Policy"). The Title Commitment will be certified to the Effective Date and will
include copies of all recorded documents evidencing title exceptions raised in Schedule B of the
Title Commitment. On or before the date of Closing, the Title Commitment must show in the
City good and marketable title to the Transfer Properties, free and clear of the standard printed
exceptions contained in Schedule B of said commitment and the Title Policy, and free and clear
of all liens, charges, encumbrances and clouds of title, whatsoever, except the following
(collectively, the "Permitted Encumbrances"):
(a) Those created or assumed by the Developer or provided for in this Agreement or
the Infrastructure Agreement;
(b) Zoning ordinances, legal highways and public rights-of-way which do not
interfere with the Transfer Properties;
(c) Real estate taxes if any which are a lien on the Transfer Properties but which are
not yet due and payable; and
(d) Easements and restrictions of record acceptable to the Developer which do not
interfere with the Transfer Properties.
If the legal description for any one of the Transfer Properties includes more than one
parcel, the title commitment shall state affirmatively that all parcels of land are contiguous. The
title commitment shall fully and completely disclose all easements, negative or affirmative,
rights-of-way, ingress or egress or any other appurtenances to the Transfer Properties, and shall
provide insurance coverage in respect to all of such appurtenant rights. The title commitment
shall include the results of a special tax search and examination for any financing statements
filed of record which may affect the Transfer Properties.
Section 6.2 Endorsement at Closing. At the Closing, the City shall provide the
Developer with endorsements to the title commitment updating the commitment to the respective
date and showing no change in the state of the title to the Transfer Properties (other than
mortgages which shall be released by the City at the Closing). After Closing, a final owner's title
insurance policy shall be issued in the amount requested by the Developer and approved by the
title company.
Section 6.3 Survev. The Developer may, at its expense, obtain current surveys of the
Transfer Properties. The surveys shall include a legal description of the Transfer Properties and
shall be certified by the surveyor to the Developer and the title insurance company. Subject to
the approval of the title insurance company, the legal description set forth on the survey shall be
used in the title insurance commitment and policy and in all documents of transfer contemplated
hereby. The survey shall be sufficient to waive or insure over any and all questions or survey.
Section 6.4 Status of Title; Permitted Encumbrances; Objections. Up and until the
close of business one full week before the closing date, the Developer may provide the City with
written objections to the extent that the Title Commitment reveals matters other than the
Permitted Encumbrances (the "Objections") which constitute a monetary lien or may interfere
with the Developer's use of the Transfer Properties for their intended purpose. The Developer's
failure to make Objections within such time period will constitute a waiver of the Developer's
right to make Objections. The City shall satisfy Objections or the Developer waives the
5
objections at the Closing. In the event the City elect not to cure the Objection(s), the Developer
may terminate this Agreement by giving notice of termination to the City at closing, to all or any
single Transfer Properties. The City shall provide the Developer with evidence, satisfactory to
the Developer, in its sole discretion, that the Objections will be fully cured and/or released on the
date of Closing or that the Title Company will issue satisfactory endorsements to the final Title
Policy insuring against the risks associated with same. In the event the Objections are not cured
or removed, or in the event the City cannot provide satisfactory evidence that the Objections will
be cured on or before the date of Closing or that satisfactory endorsements to the Title Policy
will be issued, the Developer shall make its election, at closing, by written notice to the City, to
either:
(1) Accept title to the Transfer Properties, at which point such uncured Objections
shall be Permitted Encumbrances hereunder; or
(2) Accept title to the some of the Transfer Properties, at which point such acceptance
shall be deem compete execution by the City's duties and obligations herein; or
(3) Terminate this Agreement.
The Developer's failure to make its election at closing shall constitute the Developer's election
to accept title to the Transfer Properties, at which point such uncured Objections shall be
Permitted Encumbrances hereunder.
(End of Article VI)
ARTICLE VII
DEED AND OTHER DOCUMENTS
Section 7.1 Quitclaim Deed. The City shall, at the Closing, convey fee simple title to
the Transfer Properties to the Developer by a duly and validly executed, recordable quitclaim
deed, free and clear of all liens and encumbrances, except those permitted pursuant to the
provisions of Article VI hereof.
Section 7.2 Other Documents. The Developer and the City agree that such other
documents as may be legally necessary or appropriate to carry out the terms of this Agreement
shall be executed and delivered by the appropriate party at Closing. Such documents shall
include, but not be limited to a closing statement, The City's affidavit regarding liens,
unrecorded matters and possession and, if requested, The City's affidavit regarding the
warranties and representations set forth in Article XII hereof.
(End of Article VIII
ARTICLE VIII
POSSESSION AND INSPECTION
Section 8.1 Tests and Eneineerine Studies. For and during the entire period that this
Agreement is in effect, the Developer shall, at its sole cost, have the right through the
Developer's associates, employees and/or contractors and agents to enter upon the Transfer
Properties and cross any adjacent lands of the City for access to the Transfer Properties for the
C
purpose of surveying, inspecting, making contour surveys, temporary excavations (to be refilled
by the Developer as promptly as the same shall have served their purpose), test borings and other
purposes required by the Developer to enable the Developer to ascertain whether it is feasible to
complete the proposed development of the Transfer Properties for the intended purpose(s).
Section 8.2 Indemnitv. The Developer agrees to protect, indemnify, defend and hold
the City and each of its employees, officers, board members and council members harmless from
and against any and all claims, liabilities, losses, costs, expenses (including but not limited to
reasonable attorneys' fees), damages, injuries or death arising out of or resulting from: (a) any
activity of the Developer, its employees, agents or contractors on or about the Transfer
Properties; (b) any damage to the Transfer Properties caused by the Developer, its employees,
agents or contractors; and/or (c) any mechanic's lien being filed against the Transfer Properties
as a result of the action or alleged action of the Developer, its employees, agents or contractors.
The provisions of this Section shall survive the Closing or any termination of this
Agreement.
(End of Article VIII)
ARTICLE IX
CLOSING
Section 9.1 Closing Date. Closing and transferring of the Transfer Properties shall
occur within thirty (30) days from the execution of the Infrastructure Agreement and making of
the Developer's deposit into the Project Fund (the "Closing Date").
Section 9.2 Closing and Possession. The City and the Developer agree that the
transfer of the Transfer Properties shall be closed on the Closing Date and possession shall be
transferred at said time to the Developer (the "Closing"). Said Closing shall be held at a time
and place in Franklin County, Ohio as agreed to by the Parties.
Section 9.3 The Citv Closing Documents. In addition to the deeds described in
Article VI, at the Closing, the City shall deliver to the Developer: (i) all consents, affidavits or
other documents reasonably and customarily required to issue the Title Policy, (ii) such evidence
of authority as the Developer or the title company issuing the Title Policy reasonably may deem
necessary to evidence the authority of the City to enter into this Agreement and to consummate
the transactions contemplated hereby, (iii) an affidavit that the City are not non-resident "aliens",
"foreign corporation", "foreign partnership", "foreign trust", or "foreign estate" within the
meaning of the Internal Revenue Code and Regulations thereunder, (iv) an executed
Infrastructure Agreement substantially in the form attached hereto as EXHIBIT C if not already
provided, and (v) the Developer's execution of necessary utility easements that will remain in the
vacated right of way.
Section 9.4 The Developer's Closing Documents. At the Closing, the Developer
shall deliver to the City: (i) evidence of authority as the City or the title company issuing the
Title Policy reasonably may deem necessary to evidence the authority of the Developer to enter
into this Agreement and to consummate the transactions contemplated hereby, and (ii) an
executed Infrastructure Agreement if not already provided substantially in the form attached
hereto as EXHIBIT C, and (iii) executed utility easements necessary to preserve the easements
7
within the vacated right of way.
(End of Article IX)
ARTICLE X
APPORTIONMENTS AND ADJUSTMENTS
Section 10.1 Adiustments at Closing. On the Closing Date, the Developer and the
City shall apportion, adjust, prorate and pay the following items in the manner hereinafter set
forth:
(a) Real Estate Taxes and Assessments. The City shall pay if any all delinquent real
estate taxes, together with penalties and interest thereon, all assessments which
are a lien against the Transfer Properties as of the Closing Date (both current and
reassessed, whether due or to become due and not yet payable), all real estate
taxes for years prior to closing, real estate taxes for the year of Closing, prorated
through the Closing Date and all agricultural use tax recoupments for years
through the year of Closing. The proration of undetermined taxes shall be based
upon a three hundred sixty-five (365) day year and on the last available tax rate,
giving due regard to applicable exemptions, recently voted millage, change in tax
rate or valuation (as a result of this transaction or otherwise), etc., whether or not
the same have been certified. The agreed upon amount so computed by the
Parties shall be final. The City warrants and represents that all assessments now a
lien are shown on the County Treasurer's records and that to the best of the City's
knowledge, no improvement, site or area, has been installed by any public
authority, the cost of which is to be assessed against the Transfer Properties in the
future. The City further warrants and represents that neither the City nor any of
its agents, employees or representatives have received notice, oral or written, or
have knowledge of any proposed improvement, any part of the cost of which
would or might be assessed against the Transfer Properties. The covenants and
agreements set forth in this Agreement shall not be cancelled by performance
under this Agreement, but shall survive the Closing and the delivery of the deed
of conveyance hereunder.
(b) The City' Expenses. The City shall, at the Closing (unless previously paid), pay
the following:
(i) The cost of all municipal services and public utility charges (if any) due
through the Closing Date; and
(c) Developer's Expenses. The Developer shall, at the Closing (unless previously
paid), pay the following:
(i) The cost of the Title Commitment for the Transfer Properties;
(ii) The recording fees required for recording the quitclaim deed;
(iii) The cost of the survey referred to in Section 5.03;
(iv) The cost of the Title Policy; and
(v) The fee, if any, charged by the title insurance company for closing the
transaction contemplated herein.
(d) Brokers. The City hereby warrants and represents to the Developer that the City
has not engaged or dealt with any broker or agent in regard to this Agreement. The Developer
hereby represents and warrants to the City that the Developer has not engaged or dealt with any
broker or agent in regard to this Transfer Agreement. the Developer agrees to indemnify the
City and hold the City harmless against any liability, loss, cost, damage, claims and expense
(including, but not limited to, attorneys' fees and cost of litigation) which the City may ever
suffer, incur, or be threatened with because of any claim by any broker or agent claiming by,
through or under the Developer, whether or not meritorious, for any such fee or commission.
(End of Article X)
ARTICLE XI
WARRANTIES AND REPRESENTATIONS OF THE CITY AND THE DEVELOPER
11.1 Warranties and Representations of the Citv. In addition to any other
representation or warranty contained in this Agreement, the City hereby represents and warrants
as follows:
(a) To the best of the City' knowledge, neither the City nor any agent, employee or
representative of the City, has received any notice or notices, either orally or in
writing, from any municipal, county, state or any other governmental agency or
body, of any zoning, fire, health, environmental or building violation, or violation
of any laws, ordinances, statutes or regulations relating to pollution or
environmental standards, which have not heretofore been corrected;
(b) To the best of the City' knowledge, the execution, delivery and performance of
this Agreement, and the consummation of the transaction contemplated hereby,
will not result in any breach of, or constitute any default under, or result in the
imposition of any lien or encumbrance against, the Transfer Properties, under any
agreement or other instrument to which the City is a party or by which the City or
the Transfer Properties might be bound;
(c) To the best of the City' knowledge, neither the City, nor any agent, employee or
representative of the City, has received any notice, either orally or in writing, of
any change contemplated in any applicable laws, ordinances or restrictions, or any
judicial or administrative action, or any action by adjacent landowners, which
would prevent, limit or in any manner interfere with the proposed use of the
Transfer Properties;
(d) To the best of the City' knowledge, as of the Closing Date, no other person or
entity other than the City and existing tenants currently owns or has any legal or
equitable interest in the Transfer Properties and no other person or entity other
than the Developer has or will have any right to acquire the Transfer Properties,
or any portion thereof;
9
(e) All taxes payable with respect to the operation, ownership or control of the
Transfer Properties which are allocable to the period ending on the Closing Date,
and all prior periods, shall be or have been paid by the City, and the City shall be
responsible for the timely filing of all returns or other documents required by any
taxing authority claiming jurisdiction with respect to any such taxes;
(f) Through and until the Closing Date, the City shall not enter into any easement,
lease or other contract pertaining to the Transfer Properties, unless otherwise
approved in writing by the Developer;
(g) The City is not a "Foreign Person" as that term is defined in the Foreign
Investment in Property Tax Act.
11.2 Breach of Warranties by the Citv Prior to Closing. If, during the pendency of
this Agreement, the Developer determines that any warranty or representation given by the City
to the Developer under this Agreement shall be untrue, incorrect or misleading, in whole or in
part, the same shall constitute a default by the City hereunder. In such event, the Developer may
give written notice thereof and shall thereafter have such rights and remedies as may be available
to the Developer as provided herein, at law or in equity.
11.3 Warranties and Representations of the Developer. In addition to any other
representation or warranty contained in this Agreement, the Developer hereby represents and
warrants as follows:
N/A
(End of Article XI)
ARTICLE XII
THE CITY'S OPTION TO PURCHASE THE TRANSFER PROPERTIES; PAYMENT
UPON DEVELOPER TRANSFER
12.1 Citv Option to Purchase Transfer Propertv Subarea Bl. The Developer
grants an option for the City to purchase the Transfer Property identified as Subarea 131, if it has
not been developed in accordance with Final Development Plans approved by the City after three
(3) years from the execution of this Agreement by the City (subject to reasonable extensions for
force majeure). The option purchase price shall be one hundred dollars ($100.00) plus
reasonable and documented out of pocket costs incurred by the Developer in connection with the
development of Subarea 131 (with any such costs not specifically allocable to Subarea 131
allocated pro rata based on acreage of Subarea 131 and the acreage of all Transfer Properties).
This provision shall be set forth in the quitclaim deed(s) from the City to the Developer or other
instrument(s) acceptable to the City and the Developer.
12.2 Citv Option to Purchase Transfer Propertv Subarea B2. The Developer
grants an option for the City to purchase the Transfer Property identified as Subarea 132, if it has
not been developed in accordance with Final Development Plans approved by the City after five
(5) years from the execution of this Agreement by the City (subject to reasonable extensions for
force majeure). The option purchase price shall be one hundred dollars ($100.00) plus
10
reasonable and documented out of pocket costs incurred by the Developer in connection with the
development of Subarea B2 (with any such costs not specifically allocable to Subarea B2
allocated pro rata based on acreage of Subarea B2 and the acreage of all Transfer Properties).
This provision shall be set forth in the quitclaim deed(s) from the City to the Developer or other
instrument(s) acceptable to the City and the Developer.
12.3 City Option to Purchase Transfer Property Subarea B3. The Developer
grants an option for the City to purchase the Transfer Property identified as Subarea B3, if it has
not been developed in accordance with Final Development Plans approved by the City after five
(5) years from the execution of this Agreement by the City (subject to reasonable extensions for
force majeure). The option purchase price shall be one hundred dollars ($100.00) plus
reasonable and documented out of pocket costs incurred by the Developer in connection with the
development of Subarea B3 (with any such costs not specifically allocable to Subarea B3
allocated pro rata based on acreage of Subarea B3 and the acreage of all Transfer Properties).
This provision shall be set forth in the quitclaim deed(s) from the City to the Developer or other
instrument(s) acceptable to the City and the Developer.
12.4 Pavment to Citv upon Developer Transfers within 20 Years. If Developer (or
an affiliated holding company or limited liability company owned or controlled by the
Developer) transfers ownership of any portion of the Transfer Properties within 20 years from
the execution of this Agreement by the City, the Developer shall pay the City $84,406.00
multiplied by the number of acres so transferred, plus reasonable and documented out of pocket
costs incurred by the City in connection with the development of the portion of the Transfer
Properties so conveyed (with any such costs not specifically allocable to such portion allocated
pro rata based on acreage of such portion and the acreage of all Transferred Properties), with
such payment made within thirty (30) days of such transfer. This provision shall be included
within the quitclaim deed(s) from the City to the Developer or other instrument(s) acceptable to
the City and the Developer for Subareas 131, B2 and B3. This Section 12.4 shall not apply if the
transfer of said real property is to an affiliated holding company or limited liability company
owned or controlled by the Developer.
(End of Article XIII
ARTICLE XIII
NOTICES
13.1 Notices. Whenever in this Agreement it shall be required or permitted that notice
be given or served by either Party hereto on the other, such notice shall be in writing and shall be
deemed served when either delivered in person to the following designated agents for that
purpose, or deposited in the United States Mail, by certified or registered mail, postage prepaid,
return receipt requested, addressed to the other Party as follows:
If to the Developer: The Daimler Group, Inc.
1533 Lake Shore Drive
Columbus, Ohio 43204
Attention: Paul G. Ghidotti
or such other address as the City may hereinafter designate by written notice to the Developer.
11
Any notice to be served on the City shall be addressed as follows:
If to City: City of Dublin, Ohio
5200 Emerald Parkway
Dublin, Ohio 43017
Attention: City Manager
With copy to: Philip K. Hartmann
Frost Brown Todd LLC
One Columbus, 10 West Broad Street
Columbus, Ohio 43215,
or such other address as the City may hereinafter designate by written notice to the City.
(End of Article XIII)
ARTICLE XIV
GENERAL PROVISIONS
14.1 Governing Law. This Transfer Agreement is being executed and delivered in the
State of Ohio and shall be construed and enforced in accordance with the laws of the State of
Ohio. For all litigation, disputes and controversies which may arise out of or in connection with
this Agreement, the undersigned hereby waive the right to trial by jury and consent to the
jurisdiction of the courts in the State of Ohio.
14.2 Signage Prohibited. All signage (permanent or temporary) on the Transfer
Properties shall be prohibited until redevelopment of the respective Transfer Properties and
approval of a Master Sign Plan.
14.3 Assignment This Transfer Agreement shall be binding upon and inure to the
benefit of the Parties hereto, their respective heirs, legal representatives, successors and assigns.
14.4 Invaliditv. In the event that any provision of this Transfer Agreement shall be
held to be invalid, the same shall not affect in any respect whatsoever the validity of the
remainder of this Agreement.
14.5 Waiver. No waiver of any of the provisions of this Transfer Agreement shall be
deemed, nor shall the same constitute a waiver of any other provision, whether or not similar, nor
shall any such waiver constitute a continuing waiver. No waiver shall be binding, unless
executed, in writing, by the party making the waiver.
14.6 Headings. The section headings contained in this Transfer Agreement are for
convenience only and shall not be considered for any purpose in construing this Transfer
Agreement.
14.7 Memorandum. Upon request of either party hereto, the Developer and the City
shall execute a recordable memorandum of the terms hereof, which memorandum may be placed
12
of record in any public office within the county wherein the Transfer Properties is/are situated.
14.8 Survival. The terms and provisions of this Transfer Agreement shall survive the
delivery of the deed of conveyance hereunder.
14.9 Counterparts. This Transfer Agreement may be executed in one or more
counterparts all of which will be considered one and the same agreement, binding on all Parties,
notwithstanding that all Parties are not signatories to the same counterpart. Counterparts or
signatures transmitted or stored by electronic means (such as e-mailed .pdfs) shall constitute
original counterparts or signatures for all purposes.
(End of Article XIII)
[Signatures appear on the following pages]
13
The City: The Developer:
an Ohio Municipal Corporation an Ohio corporation
STATE OF OHIO
ss.
COUNTY OF FRANKLIN
Its:
BE IT REMEMBERED, that on this day of , 2019, before me, the
subscriber, a Notary Public in and for said state, personally appeared , duly
authorized signatory for The Daimler Group, Inc., and acknowledged the signing thereof to be
his voluntary act for and on behalf of the corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last aforesaid.
STATE OF OHIO
ss.
COUNTY OF FRANKLIN
Notary Public
BE IT REMEMBERED, that on this day of , 2019, before me, the
subscriber, a Notary Public in and for said state, personally appeared Dana L. McDaniel, City
Manager of the City of Dublin, Ohio, an Ohio municipal corporation, and acknowledged the
signing thereof to be his voluntary act and deed for and on behalf of the City of Dublin, Ohio.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last aforesaid.
Notary Public
Approved as to form:
Jennifer D. Readler, Law Director
Exhibit A
Depiction of Transfer Properties: Subareas B1, B2 and B3
[to be inserted]
EXHIBIT B
Form of Infrastructure Agreement
[attached]