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07-09 OrdinanceRECORD OF ORDINANCES Ordinance No 0~-09 Passed , 20 AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ECONOMIC DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND OHIO PROTON THERAPY, LLC TO INDUCE OHIO PROTON THERAPY, LLC TO FACILITATE THE DEVELOPMENT OF A PROTON CANCER TREATMENT FACILITY TOGETHER WITH RELATED SUPPORT AND OTHER FACILITIES IN THE CITY OF DUBLIN. WHEREAS, consistent with its Economic Development Strategy approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy approved by Dublin City Council Resolution No. 30-04 adopted July 6, 2004, the City desires to encourage commercial development and provide for the creation of employment opportunities within Dublin; and WHEREAS, Ohio Proton Therapy, LLC ("OP7") is desirous of locating a proton cancer treatment facility together with related support and other facilities within the City (collectively, the "Proto~z Thej~apy Campus"); and WHEREAS, this Council has determined to offer certain economic development incentives, the terms of which are set forth in a substantially final form of Economic Development Agreement presently on file in the office of the Clerk of Council, to induce OPT to develop the Proton Therapy Campus, and thereby create additional jobs and employment opportunities and to improve the economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, this Council finds that it is in the best interest of the City to provide those economic development incentives to induce OPT to develop the Proton Therapy Campus and to provide for the execution and delivery of that Economic Development Agreement with OPT; NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, Franklin, Union and Delaware Counties, Ohio, 2 of the elected members concumng, that: / Section 1. The Economic Development Agreement by and between the City and OPT, in the form presently on file with the Clerk of Council, providing for, among other things, the provision of incentives to OPT in consideration for OPT's agreement to develop the Proton Therapy Campus, is hereby approved and authorized with changes therein not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager and Director of Finance. The City Manager and Director of Finance, for and in the name of this City, are hereby authorized to execute that Economic Development Agreement, provided further that the approval of changes thereto by those officials, and their character as not being substantially adverse to the City, shall be evidenced conclusively by their execution thereof. This Council further authorizes the City Manager and the Director of Finance, for and in the name of the City, to execute any amendments to the Economic Development Agreement, which arnendinents are not inconsistent with this Ordinance and not substantially adverse to this City. Section 2. This Council further hereby authorizes and directs the City Manager, the Director of Finance, the Director of Law, the Clerk of Council, or other appropriate officers of the City to prepare and sign all agreements and instruments and to take any other actions as maybe appropriate to implement this Ordinance. Section 3. This Council finds and determines that all formal actions of this Council and any of its committees concerning and relating to the passage of this Ordinance were taken in open meetings of this Council or committees, and that all deliberations of this RECORD OF ORDINANCES Ordiizance No. 07-09 Page 2 Passed , ~0 Council and any of its committees that resulted in those formal actions were in meetings open to the public, all in compliance with the law including Section 121.22 of the Revised Code. Section 4. This Ordinance shall be in full force and effect on the earliest date permitted by law. Mayor -Presiding Officer Attest: Clerk of Council Passed: Qi'~ , 2009 Effective: , oZ , 2009 Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614-410-4400 • Pax: 614-410-4490 f,IT1' OF DUBLIN 'CO: Dublin City Council Members FROM: Terry Poegler, City Manager / ('lf DATE: February 26, 2009 Memo INITIATED BY: Dana L. McDaniel, Deputy City Manager/Director of Economic Development RE: Ordinance 07-09 -Ohio Proton Therapy -Additional Materials Summary Per City Council's request al its February 7 7°i meeting, staff is providing Mr. Slane's letter dated February 5. 2009 regv~ding collaboration with the Consortium; the Taratec Corporation Study; and information regarding marketing efforts of the COIC. Taratec Cm•pm•ation Study. Attached is the Taratec Corporation Study. This study was authorized by the State of Ohio Department of Development for the propose of assessing the proposal by Mr. Slane involving Siemens' Cecluiology with a focus on carbon particle therapy. Dana McDaniel attended the out brief of the shtdy at the invitation of the State of Ohio and at that time was given a copy of the report. The focus of the study was on a facility combining both carbon particle therapy and proton therapy. The State of Ohio commissioned this study because it was considering providing a loan for the project at that time. The reconnnendation from Taratec Corporation was positive n~ favor of a loan for the combination proton/ca~~bon therapy facility. As City Council laiows, the project before Council is a different model than studied by Taratec. However, ]cey aspects of the study remain very relevant, specifically the following sections of the report: ,Positive Factors: 1. Technology, 2. Equipment (proton), 3. Patient Recruitment, 4. Patient Outcomes, 6. Battelle Participation Risks or Concen~s: 3. Pricing, 4. Cash Flow, 6. Competition, 8. Possible Delays, 9. Project Management, 10. Collateral Development Staff views the Taratec Corporation study as a valuable assessment of the current project even though its current focus is not on carbon therapy, but proton therapy, as it helps to validate the market demand/saturation, validity of the technology (proton), financial feasibility and va]ue to patients. Please keep in mind that there are references to certain parties who are no longer invo]ved in the current project under consideration. Marketiu~ for the COIL. The following is an outline of marketing initiatives undcrtalcen to promote the technology park, now known as Innovation Par]< in the Central Ohio hmovation Corridor (COIC). NationaUInternational Advertising Campaign Memo to Council re Ordinance 07-09 -Ohio Proton Therapy -Additional Materials February 26, 2009 Page 2 of 4 Beginning with the May 2008 issue of Site Selection magazine, Economic Development's advertisements incorporated the text, "Premier sites available at The Central Ohio Innovation Center -Dublin's 1,300-acre next-generation tech park." As part of Economic De<~elopment's asset-based company attraction strategy, this ad mentioned that Cardinal Health is headquartered in Dublin, and was targeted toward attraction of bio and high-tech related industries. This messaging has been incorporated in ads in the following publications*: TechColumbus Annual Report, Business First, Oct. 5, 2007 Area Development magazine, Nov. 2007 Global Corporate Xpansion, Spring 2008 Site Selection, March 2008 Site Selection, May 2008 Memorial Tournament magazine, May-June 2008 Columbus CEO magazine, Economic Development Guide, June 2008 Site Selection, July 2008 Global Corporate Xpansion, Fall 2008 (back cover -included with this memo) TechColumbus Annual Report, Business First, Oct. 3, 2008 Business Xpansion.Iournal, Nov./Dec. 2008 CoreNet Global's The Leader, Nov./Dec. 2008 Site Selection, Nov./Dec. 2008 Site Selection, Jan./Feb. 2009 (attached) Site Selection, March/Apri12009 Business Xpansion Journal, n•Iarch 2009 Business Xpansion Journal, Apri12009 *In addition to subscribers of these periodicals, the advertisements are also viewed by attendees at various trade shows where the magazines are distributed. For example, the May 2008 issue of Site Selection also was distributed at the following conferences: Bio 2008, in San Diego (22, 000+ attendees); Bio Forum, in Tokyo (20, 000+ attendees); Brownfields 2008 Conference, in Detroit (5, 000+ attendees); NAFTZ (National Association of Foreign Trade Zones), in Palm Beach (500+ attendees); Cityscape China, in Shanghai (30, 000+ attendees); MIPIM Horizons (World Property Market), in Cannes, France (5, 000+ attendees); World Forum for Direct Investment, in London (500+ attendees); and FDI (Foreign Direct Investment) in America, in Zacatecas, Mexico (400+ attendees). Other ads have been tailored to appeal to readers of special reports in targeted publications. For example, Global Corporate Xpansion's Summer 2008 issue focused on workforce training. The City of Dublin ad listed statistics on its highly trained and educated workforce, mentioned that the region is a pipeline to more than 100,000 students and noted that nearly 1 million workers in the Columbus region bring an unrivaled Midwestern work ethic to their jobs each and every day. This ad was featured in the following publication: Global Corporate Xpansion, Summer 2008 Ads promoting the City of Dublin Economic Development department's willingness to assist companies have appeared in the following regional publications: Memo to Council re Ordinance 07-09 -Ohio Proton Therapy -Additional Materials February 26, 2009 Page 3 of 4 Dublin Chamber of Commerce Directory, 2008-2009 and 2009-2010 Union County Chamber of Commerce Directory, 2009 Web site advertising has appeared on the following sites*: www.EcoDevDu~ectory.com (2008 and 2009) www.BXJOnline.com (2008) www.ExpansionSolutionsl~•Zagazine.com (2008) www.SiteNet.com (2008-2010) ~vww.Biatec;h-re~ister.com (2008-2009) *Through web site tracking reports, Economic Development is able to determine visitors who enter www.DublinEconDev.com from other sites and can determine advertising renewals based on the number of referrals from those sites. NationaUInternational Editorial Coverage: Global Corporate Xpansion, Summer 2008, (McDaniel and Consultant David Baldwin quoted in story on workforce training initiatives.) CoreNet Global's The Leader, Jan./Feb. 2009, (McDaniel quoted on Dublin's role as a technology and entrepreneurial hub.) This issue will receive additional distribution at the '09 Global Summit in Macau, China.. CoreNet Global's The Leader, March/April 2009, (McDaniel quoted on bioseienee activity in Dublin. ) Business Xpansion Journal, April 2009, (Dublin featured in one-page bioseience profile.) The Strorninator.com, Nov. 2008, (McDaniel featured in Web site article on creating and nurturing next-generation technology businesses. Story was the result of a tech reporters' visit in November coordinated with the Columbus Chamber and TechColumbus.) IndUS Business Journal, Dec. 1., 2008, (McDaniel featured in story regarding teelmology businesses in Dublin. Story was the result of a tech reporters' visit in November coordinated with the Columbus Chamber and TechColumbus.l Sponsorships BioOhio Annual Conference, Dublin, October 21-22, 2008 Sponsorship included a booth and an ad in the program. Two flyers were prepared as handouts in addition to the Economic Development brochure. Flyers focused on the tech park and the Dublin Entrepreneurial Center. (Flyers attached.) Mid-America Economic Development Council Competitiveness Conference, Chicago, December 7-9, 2008 Sponsorship included a booth and a chance to attend asponsors-only dinner with nine site selectors. A four-page brochure highlighting Innovation Park and the DEC was created for the conference. In addition, staff was able to begin relationship-building with the nine site selectors and has had fallow-up correspondence. All site selectors have been invited to be guests at the 1\•Zemorial Memo to Council re Ordinance 07-09 -Ohio Proton Therapy -Additional Materials February 26, 2009 Page 4 of 4 Tournament. In addition, the City of Dublin was recognized with asecond-place award for the Web site, www.DublinEconDev.com. (Brochure attached.) Additional Site Selector Engagement Economic Development staff will be traveling to Dallas in early March with representatives from the Columbus Chamber and the Mid-Ohio Development Exchange (1\•IODE) on a "corporate calling" mission. Over the two-day visit, staff will meet with eight to 10 international corporate site selection firms to discuss the potential for future corporate expansion projects being placed in the Central Ohia region. Staff will have the opportunity to directly speak to these professionals about Dublin's amenities and assets, particularly the COIC and Innovation Park. Economic Development has met with representatives from Enterprise Ireland to discuss opportunities for companies from Ireland locating in Dublin, Ohio. The dialogue is continuing with information on various sectors being exchanged and another meeting planned far the spring. Recommendation: Far information only. Ohio Particle Therapy Project Taratec Corporation Columbus, Ohio January 4, 2008 7arcatec Coy poration has signed anon-disclosure agreement with Siemens. However, Siemens has not yet provided the pro-forma information for this project. Therefore, it should be understood that the analysis below was done without this information and is subject to modification after it is received. Recommendation Carbon particle therapy should be considered an emerging technology with great potential to treat difficult forms of cancer. While there are a number of a number of technical and business risks associated with this project, we have not identified any insurmountable hurdles. If the loan from the State of Ohio is secured with favorable positions on the land and facility, we recommend that ODOD proceed with the project commitment. Positive Factors 1. Technology The technology has been applied to many types of cancers with promising results. It performed well in situations where the tumor was considered inoperable because of its location close to critical organs. Carbon ions have demonstrated excellent targetability with 1.5 to 3 times (estimated) the effectiveness of X-rays and protons in destroying tumor DNA thus preventing replication (Etoile Final Report p. 24). Carbon irradiation has not shown signs of immediate or delayed toxicity. It has shown remarkable effectiveness on 16 different types of tumors (Etoile tables on pp. 34-39). In Darn~stadt, Germany, carbon particle therapy produced 3-year local control of 81 % for chordomas, 100% for chondrosarcomas, and 62% for adenoid cystic carcinomas (D. Schulz-Ertner et als., Results of Carbon Ion Radiotherapy in 152 Patients, Int. J. Radiation Oncology Bio. Phys., Vol. 58, No. 2, pp. 631--640, 2004). In Japan, 30 patients with unresectable (inoperable) sacral chordomas were treated with carbon ion radiotherapy and an overall 5-year local control rate of 96% was obtained (R. Imai et als., Carbon Ion Radiotherapy for Unresectable Sacral chordomas, Clinical Cancer Research, Vol. 10, 5741 5746, Sept. 2004). The vision is that eventually this type of irradiation could be used in a multi- modality treatment plan that is specific to a particular individual's tumor. .-- ~` ' ranteC'Gorpontion CONFIDENTIAL Page 1 of G 2. Equipment Accelerator technology is a mature technology, and numerous accelerators have been built and operated in the U.S. and around the world. A leading U.S. center for accelerator technology is Brookhaven National Laboratory, which is operated by Battelle for the US Department of Energy (DOE). The application of accelerators for medical treatment has been demonstrated in five U.S. proton facilities and elsewhere around the world. Carbon particle therapy began in 1994 at the Heavy Ion Medical Accelerator in Chiba, Japan. Nearly 4000 patients have received treatment there. This facility uses equipment from Mitsubishi, Hitachi, Sumitomo, and Toshiba (H. Tsujii, 13-Year Experiences of Carbon Ion Therapy at NIRS, a presentation at PTCOG 46, May 20-23, 2007). The technology has received government approval, and Japan has built a second carbon facility at Gunma University, and is planning a carbon and proton facility at Harima (S. Yamada, New Carbon Therapy Project at Gunma University Heavy Ion Medical Center, a presentation at PTCOG 46, May 20-23, 2007). The Dublin facility will use equipment from Siemens, the only manufacturer currently offering a complete turnkey system. The carbon particle technology equipment installed in the Heidelberg facility is identical to that proposed for the Dublin facility. The Heidelberg facility is nearly commissioned for patient operations and is expected to start treating patients during 1 Q08. This means that there will be some operational history on identical equipment before the Dublin groundbreaking. 3. Patient Recniitment According to the 2004 Etoile study, the potential patient recruitment for carbon ion treatment would be 3,500 to 6,000 cases per year in France (p. 42), which had a population of 60 million people at that time. This estimate was based on a sample size of 17.3% of cases during 1 day and was extrapolated to an entire year and to the total French patient population. If the need for carbon ion treatment were projected to the U.S. and followed a pattern similar to the Etoile study, 2,300-4,000 patients could be expected annually out of a population of 40 million. A second article projected that at least between 2,000 and 3,000 patients would require carbon particle irradiation after very strict clinical selection out of a population of 50 million inhabitants (T. Auberger, J. Debus, J. P. Gerard, R. Orecchia, R. Potter, J. Remillieux, U. Ringborg, A. Wambersie, Radiother Oncol. 2004 Dec; suppl 2: i-ii PMID: 15971300). It is unclear if either or both of these projections take into account patient decisions to pursue another course of treatment. The carbon particle therapy facility proposed for Dublin would have the capability to treat 2,500 patients annually. Based upon these demographic projections, Taratec estimates that the U.S. would have sufficient cases to support up to six strategically located facilities of the size that is being considered for Dublin. This estimate is based on :?. ~'~Tantec'Cvrpont~o" CONFIDENTIAL Page 2 of 6 the incidence of the types of tumors for which clinical studies have already shown that carbon irradiation is useful (cited previously). Each facility would require a population of approximately 50 million inhabitants to produce the needed caseload. It is unclear if a further correction for patient decision regarding treatment pathway is also required. For example, some patients with a tumor amenable to carbon particle treatment may opt for an alternative therapy rather than travel more than 100 miles. As additional research is completed and the list of applicable tumors grows, the population needed to support each facility is likely to decrease in size. In addition, since the planned facility can deliver both carbon and proton therapy, Siemens and the Clinic have provided market data which indicates that the region encompassed within a 300-mile radius of Dublin (corresponding to a population of 50 million people) could also support two additional proton therapy facilities before becoming saturated (Risk Analysis-Slane Particle Therapy Institute). Though Taratec has no data to support the premise, it has been stated by Siemens that the Clinic would also anticipate use of the facility to treat a portion of its international patients. 4. Patient Outcomes In the literature, there is very little long-term data available on the outcomes of carbon particle therapy. The Etoile study, which involved more than 60 organ specialists, surgeons, medical oncologists and radiotherapists in France, estimated that for every 1,000 patients treated by carbon particle therapy, 250--500 more lives could be saved and for most other patients a significant improvement in their condition and their quality of life would result compared with the best alternative treatments (Etoile Summary and p. 97). 5. Costs While the cost of treatment via carbon irradiation will be significant (approximately $50,000), the improvement in local control of the tumor holds promise for reducing the total cost of cancer treatment for the patient. It shouid allow many patients to avoid the costs of local and in particular metastatic relapses, which would be treated mainly with chemotherapy. It may also produce a direct cost savings relative to IMRT or proton irradiation since fewer treatments will be required to destroy the tumor (Etoile p. 60). 6. Battelle Participation The participation of Battelle in the management of the research consortium would ensure technical credibility and objectivity. The Battelle relationship is at an early stage. The parties have yet to execute a Memorandum of Understanding or aNon-Disclosure Agreement. Issues such as Battelle's role, payment terms, and liability remain to be resolved (Telephone interview with Barbara L. Kunr, President, Health and Life Sciences Global Business, Battelle Memorial Institute, 1/3/08). While Battelle's participation is ~,:~ ~'~ -' Tans tee Cvrpontion _ CONFIDENTIAL Page 3 of b desirable and will add to the quality of the project, it will not be a showstopper if Battelle declines to participate. Risks or Concerns FDA Approval It appears that the Slane PTS facility will pursue the 510(k) pre-market notification process with FDA using proton therapy as its predicate device. Since there are no FDA- approved devices that deliver carbon ion therapy, FDA is likely to require evidence from the literature and in-vivo animal test data to demonstrate that irradiation with carbon ions has comparable performance and safety. Gathering this information for proton facilities and obtaining FDA approval has required 2-3 years after the facility shell is completed. If the agency requires clinical data, considerably more time maybe required. However, Siemens could proceed with initial FDA application for proton irradiation and defer seeking clearance for carbon therapy to a subsequent application (Letter dated December 18, 2007 from Jonathan S. Kahan, Hogan & Hanson, to Dan Slane, Slane Particle Therapy). 2. Clinical Studies Approximately 4,000 patients have been treated with carbon irradiation. The technology has shown value in treating large, hypoxic (low oxygen level), deep-seated tumors and tumors located in close proximity to critical organs (B. Jones, The case for particle therapy, The British Journal of Radiology, 79 pp. 2431, 2006). High rates of local control have been reported. The clinical studies of carbon irradiation have not progressed to the point of comparing outcomes with alternative treatment modalities- specifically, proton and photon irradiation (A. Smith, Particle Therapy in Transition: Challenges and Promises, a presentation at PTCOG 46, May 2023, 2007). At this point in time, robust evidence of carbon particle therapy's benefits in efficacy and toxicity does not exist, but the initial results look promising. 3. Pricing Medicare and third party insurers are reputed to reimburse up to $SOK for proton therapy treatments. Carbon is expected to require fewer fractions since the beam is more effective at tumor DNA destruction. The Slane business plan is built on the same pricing as proton, but it is projected that carbon could sustain a 10% price premium in the future. A delay in Medicare/Medicaid or third party reimbursement could affect the economics of this project. 4. Cash Flow The Slane facility has the potential to meet its financial objectives IF it can attain the needed level of patient throughput of 2,500 patients per year. This level of patient throughput has not been demonstrated at any carbon treatment facility to date, although :~i' `1 Tantec Corporation CONFIDENTIAL Page 4 of 6 computer simulations indicate that it is feasible. With 4 treatment rooms, this level of patient throughput will require operating the facility at a very high level of efficiency. The business plan calls for efficiency increases during the first and second years, with full efficiency being reached in the third year. Anything that delays the attainment of full patient throughput will increase the need for additional cash reserves to cover the shortfall. Although planning for the scale-up period has been included in the Business Plan, any unexpected contingencies such as a delay in FDA approval, a delay in reimbursement approval, or inefficiencies in operating the facility will necessitate larger cash reserves. 5. Technology Obsolescence The agreement between Slane and Siemens includes a 2-year warranty plus an 8-year operation and maintenance agreement. During this period, Siemens agrees to include all equipment and software upgrades that will include the use of additional nucleides and all software reprogramming. Keeping the equipment state-of--the-art will be critical for a facility that is one of the earliest adopters of the technology (Conversation with Tracy Robertson, Siemens on December 28, 2007). 6. Competition There are at least two other U.S. institutions pursing carbon particle treatment facilities- the Mayo Clinic in MN and the Touro Clinic in CA (A. Pollack, Zapping cancer, but at a huge cost, The New York Times, Vol. CLVII, No. 54,170, 12/26/07, pp. Al and A22; S. Rohrs, Touro facility will employ particle beam, Times Herald, l 1/29/07; Touro University, Advanced particle beam treatment center planned at Touro University's new west coast facility, Press Release, 7/5/07). Both institutions have spoken with Siemens, and the Mayo Clinic is also in discussions with a Siemens competitor, Ion Beam Applications (IBA). The competition is coming, but the timetable is unknown. The intent is for the Dublin facility to be clinically operational by 1Q12, making it potentially the first operational carbon facility in the U.S. If another center becomes operational first, this will not be detrimental to the success of the Dublin facility. The demographics show that the Dublin facility could meet its patient objectives even with the presence of known or anticipated competitors. 7. Cleveland Clinic It is planned that the Cleveland Clinic will be the operator of the facility and will be responsible for patient care. Slane and the Clinic are currently in negotiation regarding the terms of this management contract. Siemens has advised us that the terms of the agreement have been negotiated and agreed upon, but the agreement remains to be executed by the Clinic. This delay has required Siemens to extend the due date of the initial payment (approximately $4 million) by Slane to Siemens for engineering services from 12/15/07 to 1/31/08. Failure of the Clinic to participate has the potential to be a showstopper for this project. ~~ ~_; Tantec'CorNOmt~on CONFIDENTIAL Page 5 of 6 8. Possible Delays Extended delays in the Dublin project due to financing, construction, or commissioning of the facility may result in one of the competitive carbon facilities leapfrogging this project. Siemens and Slane anticipate that the loan from the State will be available to them before the end of this State's fiscal year and will be used as part of the 20% down payment For the equipment that is due to Siemens. Thus the State's loan will be a portion of the highest risk funding for this project. Siemens will order the accelerator upon receipt of the down payment. The accelerator is a 16-month build and the facility is an 18-month build, both of which are scheduled to proceed simultaneously. Subsequently, there will be a 1-year equipment installation period followed by a 1-year facility commissioning. Early delays will impact the overall schedule. 9. Project Management Excellent project management is key to the successful completion and commissioning of the particle therapy center. This is not an off-the-shelf medical device that is purchased and deployed. It involves a very specialized building with radiation shielding, controlled environment, and robotic placement system that will produce an aesthetically pleasing patient experience. 10. Collateral Development Some thought has been given to using the synchrotron for applications beyond clinical treatment. This dual research path was tried earlier at Lawrence Berkley Laboratory in the Bevalac program that ceased operation in 1993. Many scientific communities wished access to the Belavac, and unfortunately the experimental requirements of these communities were often incompatible. One-third of Bevalac time was to be dedicated to biomedical research. The therapy program required access to the beam several hours per day for four o-• five days per week to deliver fractionated treatments. Most other programs required long blocks of dedicated time, and could not tolerate intemiptions for patient treatments that required complete reconfiguration ofthe accelerator complex. In spite of valiant efforts by different sets of researchers, the end result was a compromise on many of the goals of each program. The clinical program had to limit the number of patients treated while the nuclear physics programs were limited to less than the desired blocks of time for their larger experiments. Given the clinical goals and financial objectives of the Dublin facility, great care must be exercised in the type of work that is scheduled during the nights and weekends. The conference paper by Professor Alonso describes some of the difficulties which can arise in this situation (.IR Alonso, JR Castro, Light Ion Therapy in the US; From the Bevalac to '??, Session VI AEA XVIth Health Econometrics Congress, Ajaccio, France, Oct. 9-11, 2002). ~~', r-inte~'corpor,tion CONFIDENTIAL Pa ~e 6 of 6 v Bring your ideas to the Dublin Entrepreneurial Center Part of Innovation Park in the Central Ohio Innovation Corridor CITY OF DUBLIN,. C ~~ At the Dublin Entrepreneurial Center, viable concepts become tomorrow's industry-leading businesses. Located in the heart of Innovation Park -Dublin's 1,300-acre next-generation tech park - the DEC offers: Onsite resources targeted to meet the needs of innovative start-up companiE A creative atmosphere encouraging iG..~ .,..~....y and collaborative problem-solving Access to industry-specific experts offering unique solutions Close proximity to awide-ranging variety of industry clusters Opportunities for shared-services and cost-sharing Onsite resources: TechColumbus Small Business Development Center Entrepreneurs University training and workforce programs Dublin Entrepreneurial Center Dublin Deputy City Manager/Director of Economic Development Dana McDaniel 614-410-4618 e-mail: dmcdaniel@dublin.oh.us \Y /// Locate your business in the Central Ohio Innovation Corridor in Dublin, Ohio where you will find access to: • Advanced energy program grants •Dual-sourced power and circuitry • Green incentives •A highly educated workforce • Broadband optical fiber and Wi-Fi • Technology deployment funding • Private investment • Highway frontage The Central Ohio Innovation Corridor is home to Ashland Inc., Cardinal Health, Interstate Gas Supply (IGS) and OCLC, with Battelle, The Ohio State University and Honda Manufacturing all located nearby. • ~' o~ R'T ~)~ ~2009~ ~r f ~ 7~r~% ~ I N N O V A T I O N P A R K J Locate your business Innovation Park -Dublin's 1,300-acre next-generation tech park - at the gateway to the in Innovation Park Central Ohio Innovation Corridor now has sites available adjacent to the U.S. 33 and S.R. in the Central Ohio 161 interchange. The City of Dublin is funding $52 million in interchange improvements Innovation Corridor for convenient access to this premier development. In the Central Ohio Innovation Corridor, you'll also find: CITY OF DUBLIN A highly educated workforce Broadband optical fiber and Wi-Fi Technology deployment funding The Central Ohio Innovation Corridor is home to Cardinal Health, Ashland Inc., Wendy's/Arby's Group and OCLC, with Battelle, The Ohio State University and Honda Manufacturing all located nearby. Dublin Deputy City Manager/Director of Economic Development Dana McDaniel 614-410-4618 e-mail: dmcdanielC~dublin.oh.us www.uupllntconuev.com Customized incentive packages Private investment Highway frontage The Central Ohio Innovation Corridor is home to: Ashland Inc. Cardinal Health Nationwide Insurance Enterprise C-C LC Wendy's/Arby's Group In addition: Battelle The Ohio State University Abercrombie t~ Fitch Honda Manufacturing NetJets and Scotts are all located nearby. Dublin Deputy City Manager/Director of Economic Development Dana McDaniel 614-410-4618 e-mail: dmcdaniel@dublin.oh.us CITY OF DUBI.IlVa ~ a r , .~ ~ ~ Y I Y I IL L +`lJ' Y li Y~ ~ ~ , Y,, v Y T i Innovation Park co~c CENTRAL OHIO INNOVATION CORRIDOR Locate your business in Innovation Park in the Central Ohio Innovation Corridor Ir~~ : ~~atooQ~ 'rr~a,E~ -Dublin's 1,300-acre next-generation tech park - at the gateway to the Central Ohio Innovation Corridor -now has sites available adjacent to the US 33 and SR 161 interchange. In Dublin, you'll find aspeed-to-build environment as evidenced by the establishment of an Innovation Park zoning district. The development standards for the district streamline zoning and permit reviews. The City also has been proactive in acquiring key land for development. In the Central Ohio Innovation Corridor, you'll find: Customized incentive packages, which may include city-owned land, fiber andlor grants State of Ohio job-ready approved sites Redundant power and circuitry Green incentives A highly educated workforce Broadband optical fiber and Wi-Fi Technology deployment funding Private investment Highway frontage Onsite resources: TechColumbus University training and workforce programs Entrepreneurial college Edison Centers Platform labs Small Business Development Center Entrepreneurs Ohio's larg¢ OhioHealth company- Cardinal H~ ?ened the ~. ors to Dublin is expandin ~ - ~7thodist its Dublin ospita!-the headquarter ~ ~ rst nonprofit with a 250,v~~ ~spital to be square-foot uuiltin Centro! addition. Ohio in the last 10 years - in 1008. Dublin Entrepreneurial Center Bring your ideas At the Dublin Entrepreneurial Center, viable concepts become tomorrow's to the Dublin industry-leading businesses. Located in the heart of Innovation Park, the Entrepreneurial Center 40,000-square-foot DEC offers: Onsite resources targeted to meet the needs of innovative Part of Innovation Park start-up companies in the Central Ohio A creative atmosphere encouraging idea-sharing and collaborative Innovation Corridor ~ problem-solving Access to industry-specific experts offering unique solutions Close proximity to awide-ranging variety of industry clusters . Opportunities for shared-services and cost-sharing !GS is The City of seeking TEED ,_,.~ Dublin is certification ~~ s ~, funding $52 for its new ; : = million in US 100,000- ~ `- ~~ ~ 4 ~ ~„- 33/SR ]bl square-Foot ~ _ `- `;~ s~ ~ interchange headquarters ~j improvements now under for convenient construction access to in Dublin. innovation Park. The Central Ohio Innovation Center Creative ideas have no limits in Dublin, Ohio. That's why: • More than 53 biotech and pharmaceutical companies call Dublin home. • We're the address for 539 high tech companies. • In 2008, Ohio was ranked the top state in total Alternative Energy Projects by Site Selection magazine. Shouldn't it be your address, too? Premier sites available at The Central Ohio Innovation Center -Dublin's 1,300-acre next-generation tech park. IN,. ~.. SMl1RT r'-r~, ~. ~,,,~;, ~~,,, r r ~zooa~ ,, ~' -/ ~ i i1 ~~r ~ ,~ ~ ~ r ~' ! ~ t l r ;~~ /r Interim City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614-410-4400 • Fax: 614-410-4490 CITY OF Dli GLIN To: Members of Dublin City Council Memo From: Marsha I. Grigsby, Interim City Manager/Director of Finance "?~~~ 3- Dana L. McDaniel, Deputy City Manager/Director of Economic Development Paul A. Hammersmith, P.E., Director ofEngineer/City Engineer Stephen J. Smith, Director of Law Date: February 12, 2009 Subject: Ordinance No. 07-09, An Ordinance Authorizing the Execution of an Economic Development Agreement with Ohio Proton Therapy, LLC to Facilitate the Development of a Proton Cancer Treatment Facility. Background In early 2005, City Council authorized the acquisition of two (2) parcels of land south of SR 161/Post Road and west of US 33/ SR 161. The parcels were acquired because of their importance in preserving the City's economic development opportunities of the area near the US 33/SR 161/Post Road interchange and the larger Central Ohio Innovation Center (COIC) planning area. Prior to the acquisition of these pazcels, the City had worked with O'Brien/Adkins Associates (OBA), a firm most known for their master planning of the Research Triangle Park in North Carolina, on the development of a master plan for the COIL. OBA identified the two (2) parcels acquired by the City as critical to the development of the COIL. As City Council will recall, in November 2005, the City entered into an Economic Development Agreement (EDA) with UMC Partners (UMC), an Ohio nonprofit corporation that had been established to facilitate business opportunities for science and research coming out of The Ohio State University (OSU) and the OSU Medical Center, for the purpose of facilitating the development of a Health and Innovation Park. The primary component was to have been the construction of a Particle Therapy Center. This facility was to be used for the purpose ofdelivering ahigh-energy particle beam (carbon ions) for the treatment of cancer. This form of treatment was not, and is currently not, approved by the Food and Drug Administration (FDA) and the cost to construct the facility was estimated to be $300 million. Due to the cost of the facility and the lack of FDA approval, it was determined in late 2006 that the project would not move forward and the EDA between the City and UMC was terminated. In 2007, the land the City dedicated to UMC for the project in accordance with the EDA was transferred back to the City. Current Proposed Project The City has been in discussions with Daniel M. Slane, Chairman, Ohio Proton Therapy, LLC (OPT), on a project to locate and develop a proton therapy facility on the land that had been acquired by the City in 2005. Memorandum re Ordinance 07-09 -Ohio Proton Therapy, LLC February 12, 2009 Page 2 of 5 Proton therapy is a form of concise radiation treatment and is FDA approved. It allows the proton's dose of radiation to be controlled to the exact shape, depth and release energy needed within the body to treat tumors and other disease, thereby minimizing the effect of radiation on surrounding tissue. The ability to target treatable tumors precisely and in three dimensions makes proton therapy a superior form of radiation treatment. Additionally, proton therapy is an ideal treatment for tumors around critical structures such as the brain, heart optic nerve or spinal cord. Unfortunately, over 600,000 people in the United States alone are diagnosed annually with tumors that can be treated by radiation. Of this number, it is estimated that 150,000 people could benefit from proton therapy treatment. It is further estimated that 70 of these centers could be supported in the US. Only five centers currently exist and three more are anticipated to be operational in the next three years. Ordinance No. 07-09 and the attached EDA, provide certain economic incentives from the City to OPT to facilitate the development of a proton therapy facility and related proton therapy campus resulting in the creation of jobs and the promotion of medical and technological development in Dublin. OPT commits to use its best efforts to cause the construction of the Proton Therapy Facility no later than December 31, 2010. The Proton Therapy Facility shall be used for the purpose of delivering a high-energy proton beam for the treatment of cancer and must include proton therapy and may also include carbon therapy for the treatment of cancer. The Proton Therapy Facility is estimated to be an approximate 100,000 square foot facility with a building and equipment value of approximately $180 million. It is estimated that 100 new jobs will be created with an estimated payroll of approximately $20 million. The follo~~~ing provides a summation of the proposed economic incentives from the City to OPT: Land The land currently owned by the City and identified in Exhibit A-1 to the EDA will be conveyed to OPT based on the following provisions and restrictions: The Property Deeds will consist of an area identified as the Proton Therapy Site (approximately 29.8 acres) and an area identified as the Additional Development Sites (approximately 61.8 acres). The sites are depicted on Exhibit A-3. At the property closing, Dublin will execute the Property Deeds and place them into Escrow. The title to the land is not transferred. Simultaneously, OPT ~~~ill execute Reconveyance Deeds and place the Reconveyance Deeds into Escrow. The Escrow Agent will hold the Property Deeds and the Reconveyance Deeds until certain requirements are fulfilled by OPT. OPT must complete the following by December 31, 2009 or the Property Deeds will be returned to Dublin and the Economic Development Agreement terminates: (a) closed on a loan in an amount sufficient to (i) complete construction of the Proton Therapy Facility, (ii) fund the purchase of the Conforma 3000TH, and (iii) fund working capital, all to the satisfaction of Dublin in its reasonable Memorandum re Ordinance 07-09 -Ohio Proton Therapy, LLC February 12, 2009 Page 3 of 5 discretion, (b) entered into a definitive Technology Purchase Agreement with Optivus Proton Therapy for the purchase of the Conforma 3000TH and made the initial payment of $12,800,000, and (c) finalized the Operations Agreement for the Proton Therapy Facility with American Cancer Treatment System, Inc. A critical component in OPT obtaining financing is the identification of a site. The site needs to be supported by adequate infrastructure, community facilities and amenities and appropriate zoning. If the foregoing requirements are fulfilled, then the Escrow Agent releases the Property Deeds to OPT. The Escrow Agent continues to hold the Reconveyance Deeds in Escrow. By December 31, 2010, OPT must apply and receive a foundation permit for the construction of the Proton Therapy Facility and must have commenced construction of the Proton Therapy Facility. If this requirement is not satisfied then the Escrow Agent delivers the Reconveyance Deeds to Dublin which vests the title to all of the Property back to Dublin and the Economic Development Agreement terminates. OPT is not permitted to mortgage, lien or in any way encumber the Property prior to the Escrow Release Date without the prior written approval of Dublin, which approval may be unreasonably withheld. OPT is requu•ed to complete the construction and commence operations no later than December 31, 2017. If construction is not completed, then any portion of the 61.8 acre tract which has not been developed shall revert to Dublin. The time periods described above may be extended by Dublin in its discretion. The EDA also recognizes the City may attract businesses to locate their facilities and operations on the Additional Development Site. The EDA provides the opportunity for the City to refer these businesses to OPT. OPT has committed to work with the City if the City has a potential user that has a desire to locate on this site. If negotiations between OPT and the business are not successful, the City may repurchase land for $1, plus a proportionate share of any infrastructure and other development costs incurred by OPT for the purpose of conveying the land to the business, if it is determined to be an appropriate City incentive. Construction of Public Improvements As City Council is aware, the City has included the construction of the US33/SR161/Post Road interchange improvement project (the interchange) in its Capital Improvements Program (CIP) since the 2006-2010 update, approved in September 2005. The EDA provides for the City's commitment to make its best efforts to complete the interchange and the related improvement included in the CIP (relocation of Industrial Parkway and the widening of SR161) and the necessary internal roadway (relocation of Eiterman Road) on or before the date a certificate of occupancy is issued for the Proton Therapy Facility. The funding for these improvements has been programmed in the CIP. The City anticipates issuing long-term debt for a significant portion ofthe project costs. The debt will be retired using income tax revenues allocated for the retirement of debt and approximately 45% of the property tax revenues the Memorandum re Ordinance 07-09 -Ohio Proton Therapy, LLC February 12, 2009 Page 4 of 5 City receives from its "inside millage." The City has been awarded a Job Ready Sites grant in the amount of $2.7 million for the widening of SR161 and the interchange. We continue to look for other grant/funding opportunities to assist in funding the improvements. Requests have been submitted for Federal Stimulus Package funding. The EDA also provides that the City and OPT agree that a tax increment financing (TIF) district will be established and that OPT and/or any future property owners agree to pay service payments based on the private improvements made. It is currently estimated that the service payments generated from a non-school TIF for the Proton Therapy Facility would be approximately $315,000 per year. Those service payments will be utilized to fund a portion of the costs associated with the City's public improvements identified in the EDA. As additional private development occurs, service payments will be generated and used to make annual debt service obligations. Income Tax Performance Incentive Payments The EDA provides for an income tax performance incentive. This incentive tool is frequently used by the City. This incentive is based entirely on the local income tax revenues, withholdings and net- profits, generated by the Proton Therapy Facility. The incentive payment to OPT will be 50% of the income tax revenues, up to a cap of $250,000 per year. The maximum payment amount will be $2.5 million. Fiber Use Agreement The City will extend broadband fiber as part of the construction of the public improvements. Dublin will provide to OPT two fibers in its Dublink fiber optic network. Water Tower Property The City currently owns land where the Post Road water tower is located, see Exhibit F. After the Public Improvements are completed (Phase I, Phase II and Future Phases), OPT may request the transfer of the Water Tower Property to OPT. If the water tower is still located on the site, the City shall retain an easement to permit the continued use and operation of the water tower. Sum~nary It is important to restate that the City's incentive of land is conditioned on OPT meeting the requirements outlined. If financing for the Proton Therapy Facility is not obtained by December 31, 2009, or a later date agreed to by the parties, the EDA terminates. The title to the land is not transferred until such time as the expressed requirements are met. Further, if construction of the Proton Therapy Facility has not been initiated by December 31, 2010, or a later date agreed to by the parties, the land is reconveyed to the City and the EDA terminates. In the current economic environment, the staff believes this is a good opportunity to create jobs and promote medical and technological development in Dublin and the region. The City's risk is limited based on the release requirements for the land. If the initial requirements are not met, the title to the land does not transfer and the EDA is terminated. Recognizing that securing appropriate financing in Memorandum re Ordinance 07-09 -Ohio Proton Therapy, LLC February 12, 2009 Page 5 of 5 the current econornic market will be difficult, the terms of the EDA intentionally and specifically focused on OPT's requirement to obtain the appropriate financing. As stated above, a critical component in OPT obtaining financing is the identification of a site for the facility. Recommendation It is recommended that City Council consider this legislation at its February 17, 2009 and March 2, 2009 City Council meetings, with approval on March 2, 2009. RECORD OF ORDINANCES Ordirzance No. 07-09 Passed . ~0 AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ECONOMIC DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND OHIO PROTON THERAPY, LLC TO INDUCE OHIO PROTON THERAPY, LLC TO FACILITATE THE DEVELOPMENT OF A PROTON CANCER TREATMENT FACILITY TOGETHER WITH RELATED SUPPORT AND OTHER FACILITIES IN THE CITY OF DUBLIN. WHEREAS, consistent with its Economic Development Strategy approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy approved by Dublin City Council Resolution No. 30-04 adopted July 6, 2004, the City desires to encourage commercial development and provide for the creation of employment opportunities within Dublin; and WHEREAS, Ohio Proton Therapy, LLC ("OPT") is desirous of locating a proton cancer treatment facility together with related support and other facilities within the City (collectively, the "Proto~~. Therapy Campus"); and WHEREAS, this Council has determined to offer certain economic development incentives, the terms of which are set forth in a substantially final form of Economic Development Agreement presently on file in the office of the Clerk of Council, to induce OPT to develop the Proton Therapy Campus, and thereby create additional jobs and employment opportunities and to improve the economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, this Council finds that it is in the best interest of the City to provide those economic development incentives to induce OPT to develop the Proton Therapy Campus and to provide for the execution and delivery of that Economic Development Agreement with OPT; NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, Franklin, Union and Delaware Counties, Ohio, of the elected members concurring, that: Section 1. The Economic Development Agreement by and between the City and OPT, in the form presently on file with the Clerk of Council, providing for, among other things, the provision of incentives to OPT in consideration for OPT's agreement to develop the Proton Therapy Campus, is hereby approved and authorized with changes therein not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager and Director of Finance. The City Manager and Director of Finance, for and in the name of this City, are hereby authorized to execute that Economic Development Agreement, provided further that the approval of changes thereto by those officials, and their character as not being substantially adverse to the City, shall be evidenced conclusively by their execution thereof. This Council further authorizes the City Manager and the Director of Finance, for and in the name of the City, to execute any amendments to the Economic Development Agreement, which amendments are not inconsistent with this Ordinance and not substantially adverse to this City. Section 2. This Council further hereby authorizes and directs the City Manager, the Director of Finance, the Director of Law, the Clerk of Council, or other appropriate officers of the City to prepare and sign all agreements and instruments and to take any other actions as maybe appropriate to implement this Ordinance. Section 3. This Council finds and determines that all formal actions of this Council and any of its committees concerning and relating to the passage of this Ordinance were taken in open meetings of this Council or committees, and that all deliberations of this RECORD OF ORDINANCES 07-09 Page 2 Ordinance No. Passed . 20 Council and any of its committees that resulted in those formal actions were in meetings open to the public, all in compliance with the law including Section 121.22 of the Revised Code. Section 4. This Ordinance shall be in full force and effect on the earliest date pern--itted by law. Signed: Mayor -Presiding Officer Attest: Clerk of Council Passed: , 2009 Effective: , 2009 * * * * City Draft of Febrrcaryl2, 2009 -For Discression Ptcrposes Only * ~' ECONOMIC DEVELOPMENT AGREEMENT by and between CITY OF DUBLIN, OHIO and OHIO PROTON THERAPY, LLC relating to OHIO PROTON THERAPY CAMPUS dated MARCH ,2009 {H1444289.3 } * * * City Draft of Febrrtary 12, 2009 -For Discussion Purposes Only ECONOMIC DEVELOPMENT AGREEMENT THIS ECONOMIC DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into this day of March, 2009 (the "Effective Date"), by and between the CITY of DUBLIN, OHIO ("Dublin"), a municipal corporation duly organized and validly existing under the Constitution and the laws of the State of Ohio (the "State") and its Charter, whose address is 5200 Emerald Parkway, Dublin, Ohio 43017, and OHIO PROTON THERAPY, LLC ("OPT" and collectively with Dublin, the "Parties"), an Ohio limited liability company, whose address is 261 West Johnstown Road, Cohitnbus, Ohio 43230, under the circumstances summarized in the following recitals (the capitalized terms not defused in the recitals are being used therein as defined in Article I hereof). RECITALS: WHEREAS, consistent with its Economic Development Strategy (the "Strategy") approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy approved by Dublin City Council Resourtion No. 30-04 adopted on July 6, 2004, Dublin desires to encourage commercial development and provide for the creation of employment opportunities within Dublin; and WHEREAS, Dublin is the owner of three parcels of real property located in Dublin (with those parcels individually referred to as "Dublin Parcel One", "Dublin Parcel Two" and the "Eiterman Roacl Parcel", which Parcels are collectively referred to herein as the "Property" and are generally depicted on EXIBIT A-1 attached hereto and incorporated herein by reference); and WHEREAS, the Property is located in an area heretofore designated by Dublin as the "Central Ohio Innovation Center" (which area is generally depicted on EXHIBIT A-2 attached hereto and incorporated herein by reference); and {H1444289.3 } ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' WHEREAS, OPT was created for the purpose of, among others, facilitating the development of a proton cancer treatment facility (the "Proton Therapy Fertility") together with related support and other facilities and OPT is desirous of locating the Proton Therapy Campus on the Property; and WHEREAS, the City has determined that it would be in the best interests of the City to facilitate the location of the Proton Therapy Campus on the Property and within the Central Ohio Innovation Center and to convey the Property to OPT (for use in the manner depicted on EXHIBIT A-3 attached hereto and incorporated herein by reference, which includes (i) a zone consisting of approximately 29.8 acres which is described herein as the "Proton Therapy Facility Site" and (ii) a second zone consisting of approximately 61.8 acres and referred to herein as the "Additional Development Site"); and WHEREAS, the Parties each acknowledge that the development of the Proton Therapy Campus will create jobs and employment opportunities and stimulate medical and technological development within Dublin; and WHEREAS, OPT contemplates that the Proton Therapy Facility may be owned and operated by an organization that is atax-exempt organization for purposes of Section 501(c)(3) of the Internal Revenue Code (a "Non-Profit Corporation") or that OPT may enter into a contract with aNon-Profit Corporation to manage the Proton Therapy Facility; and WHEREAS, Dublin has, in consideration of OPT's agreement to develop the Proton Therapy Facility, determined to provide certain economic incentives to OPT to facilitate the development of the Proton Therapy Campus; and WHEREAS, Dublin, by passage of Ordinance No. on March 2, 2009 (the "Authorizing Legislation"), has determined that it is necessary and appropriate and in the best {H1444289.3 } -2- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' interests of Dublin to provide certain economic incentives to OPT for the purpose of creating jobs and employment opportunities and to improve the economic welfare of the people of the State of Ohio and Dublin as authorized in Article VIII, Section 13 ofthe Ohio Constitution; and WHEREAS, the Parties have deterniined to enter into this Agreement to provide the incentives to induce OPT to proceed with the development of the Proton Therapy Facility thereby creating jobs and promoting medical and technological development within Dublin; Now, THEREFORE, in consideration of the premises and covenants contained herein, and to induce OPT to proceed with the Proton Therapy Facility, the Parties hereto agree and obligate themselves as follows: ARTICLE I Section 1.1 Use of Defined Terms. In addition to the words and terms defined elsewhere in this Agreement or by reference to another document, the words and terms set forth in Section 1.2 shall have the meanings set forth in Section 1.2 unless the context or use clearly indicates another meaning or intent. Section 1.2 Defiiutions. As used herein: "Additional Development Site" has the meaning defined in the preambles of this Agreement. "Agreement" means this Economic Development Agreement by and between Dublin and OPT and dated as of the Effective Date. "Bona Fide Purchaser" means any purchaser of a portion of the Property that is approved by Dublin pursuant to Section 4.5 of this Agreement. {H1444289.3 } -3- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' "Central Ohio Innovation Center" means the area u1 Dublin generally depicted on EXHIBIT A-2 attached hereto and incorporated herein by reference. "City Manager" means the City Manager of Dublin. "Director of Law" means the Director of Law of Dublin. "Dublin" means the City of Dublin, Ohio. "Effective Date" means the date as defined in the preambles of this Agreement. "Escrow Agent" means Benchmark Title Agency which shall serve as the escrow agent for Dublin and OPT in connection with the Property Closing. "Escrow" means an escrow to be executed among the Parties and the Escrow Agent in a form reasonably acceptable to the Parties and, among other things, will provide for the (a) conveyance of the Property to OPT upon satisfaction of the Initial Escrow Release Requirements provided that such requiY•ements are satisfied by the Latest Financing Completion Date, and (b} reconveyance of the Property to Dublin if OPT shall fail to satisfy the respective Escrow Release Requirements by the Latest Permitted Commencement Date. "Escrow Release Date" means (a) in the case of the Property Deed, the date on which the Initial Escrow Release Requirements have been satisfied, and (b) in the case of the Reconveyance Deed the date on which the Escrow Release Requirements have been satisfied. "Escrow Release Requirements " means, collectively, OPT shall have (a) closed on a loan in an amount sufficient to (i) complete construction of the Proton Therapy Facility, (ii) fund the purchase of the Conforma 3000TH, and (iii) fund working capital, all to the satisfaction of Dublin in its reasonable discretion, (b) entered into a definitive Technology Purchase Agreement with Optivus Proton Therapy for the purchase of the Conforma 3000TH and made the initial payment of $12,800,000, (c) finalized the Operations Agreement for the Proton Therapy Facility with {H1444289.3 } -4- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' American Cancer Treatment System, Inc. (clauses (a), (b) and (c) being collectively referred to as the "Initial Escrow Release Requirements") and (d) applied to Dublin and received a foundation permit for the construction of the Proton Therapy Facility and commencement of construction of the Proton Therapy Facility. "Latest Financing Completion Date" means December 31, 2449, and being the date by which OPT must satisfy the Initial Escrow Release Requirements, or such later date as may be approved by the Parties. "Latest Permitted Commencement Date" means December 31, 2414, and being the date by which OPT must satisfy the Escrow Release Requirements, or such later date as may be approved by the Parties. "Maximum Payment Amount" shall mean Two Million Five Hundred Thousand Dollars ($2,504,444). "Non-Tax Revenues" means any revenues collected by Dublin and derived from sources other than taxation. "Non-Profit Organization" has the meaning defined in the preambles of this Agreement. "Notice Address" means: as to Dublin: City of Dublin, Ohio 5244 Emerald Parkway Dublin, Ohio 43417 Attention: City Manager copy to: Stephen J. Smith, Esq. Schottenstein Zox & Dunn Co., LPA 254 West Street Columbus, Ohio 43215 as to OPT: Ohio Proton Therapy, LLC 2bl West Johnstown Road Columbus, Ohio 43244 Attention: Mr. Dan Slane {H1444289.3 } -5- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' copy to: Ben Hale, Jr., Esq. Smith & Hale LLC 37 W. Broad Street, Suite 725 Columbus, Ohio 43215 "OPT" means Ohio Proton Therapy, LLC, an Ohio limited liability company. "Property Closing" means the conveyance of the Property Deed to the Escrow Agent by Dublin and the payment of the Property Purchase Price by OPT. If the Eiterman Road Parcel is required to be conveyed subsequent to the conveyance of Dublin Parcel One and Dublin Parcel Two as described in Section 4.1, "Property Closing" shall separately apply to the conveyance of the Eiterman Road Parcel. "Property Closing Dcrte" means the date on which the Property Closing occurs. If the Eiterman Road Parcel is required to be conveyed subsequent to the conveyance of Dublin Parcel One and Dublin Parcel Two as described in Section 4.1, "Property Closing Dcrte" shall separately apply to the conveyance of the Eiterman Road Parcel. "Property Deed" means, collectively, one or more good, sufficient and recordable general warranty deeds for each of the parcels comprising the Property, each in a form reasonably satisfactory to the Director of Law and OPT and pursuant to which the Property may be conveyed to OPT. "Property Purchase Price" means Ten Dollars ($10.00). "Property Survey" has the meaning defined in Section 4.2(e). "Praperty Title Cornpcrny" means Benchmark Title Agency. "Property Title Insrarcxnce Policy" means an owner's policy of title insurance relating to the Property and issued by the Property Title Company. {H1444289.3 } -6- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' "Proton Therapy Carr~pus" means that area identified as such on EXHIBIT A-3 (which is attached hereto and incorporated herein by reference) and intended to be developed as an integrated medical and research campus which shall consist of, but not necessarily be limited to, the Proton Therapy Facility and supporting facilities which may include research and development facilities, office buildings, hotels, restaurants, and related employee and patient support facilities, as well as any permitted and conditional uses set forth in the COIL Zoning classification and such other facilities as may be mutually agreeable to the Parties and permitted pursuant to a rezoning of a relevant portion of the Property. "Pt~oton Therapy Facility" means a facility to be constructed on the Proton Therapy Facility Site. The Proton Therapy Facility shall be used for the purpose of delivering a high- energy Proton beam for the treatment of cancer and must include proton therapy and may also include carbon therapy and such other means oftreating cancer. "Proton Therapy Facility Site" has the meaning defined in the preambles of this Agreement. "Public Irnprovetnents" means, collectively, (a) the Phase I Public Improvements (as described and depicted in EXHIBIT B attached hereto and incorporated herein by reference and which are referred to herein as the "Phase I Public Itnprovernents"), (b) the Phase II Public Improvements (as described and depicted in EXHIBIT B and which are referred to herein as the "Phase II Public It~nprovet~nents"), (c) the Future Phase Public Improvements (as described and depicted in EXHIBIT B and which are referred to herein as the "Future Phase Public Itnprovenzents") (d) the installation of broadband fiber and wireless local area network improvements which Dublin, with input from OPT, may in Dublin's sole discretion, determine are necessary for the development of the Proton Therapy Campus, and (e) such other {H1444289.3 } _/_ ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' improvements, including but not limited to, curbs and gutters, public utilities which include water mains, sanitary sewer, and storm sewer (including the filling of floodplains and retention and detention improvements constructed in connection with the Public Improvements), burial of utility lines, street lighting, sidewalks, bikeways, and landscaping, traffic signalization, and including design and other related costs, any right-of--way acquisition, erosion and sediment control measures, grading and other related work, survey work, soil engineering and construction staking, and in each case, all other costs and improvements necessary and appurtenant thereto which Dublin, with input from OPT, may in Dublin's sole discretion, determine are necessary for the development ofthe Proton Therapy Campus. "Reconveyance Deed" means, collectively, one or more good, sufficient and recordable general warranty deeds for each of the parcels comprising the Property, each in a form reasonably satisfactory to the Du•ector of Law and OPT and pursuant to which the Property may be reconveyed to Dublin. "State" means the State of Ohio. "TIF Statute" means Sections 5709.40 through 5749.43 of the Ohio Revised Code and those sections as each maybe amended from time to time. Section 1.3 Interpretation. Any reference in this Agreement to Dublin or OPT or to any officers of Dublin or OPT includes those entities or officials succeeding to their functions, duties or responsibilities pursuant to or by operation of law or lawfully performing their functions. Any reference to a section or provision of the Constitution of the State, or to a section, provision or chapter of the Ohio Revised Code shall include such section, provision or chapter as modified, revised, supplemented or superseded from time to time; provided, that no amendment, {H1444289.3 } -~- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' modification, revision, supplement or superseding section, provision or chapter shall be applicable solely by reason of this paragraph if it constitutes in any way an impairment of the rights or obligations of the Parties under this Agreement. Unless the context indicates otherwise, words importing the singular number include the plural number, and vice versa; the terms "hereof', "hereby", "herein", "hereto", "hereunder" and similar terms refer to this Agreement; and the term "hereafter" means after, and the term "heretofore" means before, the date of this Agreement. Words of any gender include the correlative words of the other gender, unless the sense indicates otherwise. References to articles, sections, subsections, clauses, exhibits or appendices in this Agreement, unless otherwise indicated, are references to articles, sections, subsections, clauses, exhibits or appendices of this Agreement. Section 1.4 Captions and Headings. The captions and headings in this Agreement are solely for convenience of reference and in no way define, limit or describe the scope of the intent of any article, section, subsection, clause, exhibit or appendix of this Agreement. (END OF ARTICLE n {H1444289.3 } -9- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' ARTICLE II GENERAL AGREEMENT AND TERM Section 2.1 General Agreement Among Parties. For the reasons set forth in the Recitals hereto, which Recitals are incorporated herein by reference as a statement of the public purposes of this Agreement and the intended arrangements among the Parties, the Parties shall cooperate to facilitate the construction of the Proton Therapy Campus and the Public Improvements. Section 2.2 Term of Agreement. This Agreement shall become effective as of the Effective Date and shall continue until the Parties have satisfied their respective obligations as set forth in this Agreement, unless sooner terminated in accordance with the provisions set forth herein. Section 2.3 Recordation of Agreement. A Memorandum of Agreement, in the form attached hereto and incorporated herein by reference as EXHIBIT C, shall be filed with the Recorder of Franklin County, Ohio and the Recorder of Union County, Ohio for recordation in the official records of Franklin County, Ohio and Union County, Ohio as soon as practicable following the Effective Date for the purpose of providing notice of the existence of this Agreement and its applicability to the Property. OPT shall pay any costs associated with the recording of this Agreement. OPT shall, promptly following such recordation, provide, without charge, photocopies of the recorded and date-stamped Memorandum of Agreement to Dublin. (END OF ARTICLE II) {H1444289.3 } -10- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' ARTICLE III REPRESENTATIONS AND COVENANTS OF THE PARTIES Section 3.1 Representations and Covenants of Dublin. Dublin represents and covenants that: (a) It is a municipal corporation duly organized and validly existing under the Constitution and applicable laws of the State and its Charter. (b) It is not in violation of or in conflict with any provisions of the laws of the State or of the Llnited States of America applicable to Dublin which would impau• its ability to carry out its obligations contained in this Agreement. (c) It is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. To the knowledge of Dublin, that execution, delivery and performance do not and will not violate or conflict with any provision of law applicable to Dublin, including its Charter, and do not and will not conflict with or result in a default under any agreement or instrument to which Dublin is a party or by which it is bound. (d) This Agreement to which it is a party has, by proper action, been duly authorized, executed and delivered by Dublin and all steps necessary to be taken by Dublin have been taken to constitute this Agreement, and the covenants and agreements of Dublin contemplated herein are valid and binding obligations of Dublin, enforceable in accordance with their terms. (e} There is no litigation pending or to its knowledge threatened against or by Dublin wherein an unfavorable ruling or decision would materially adversely affect Dublin's ability, to carry out its obligations under this Agreement. (f) It will do all things in its power in order to maintain its existence or assure the assumption of its obligations under this Agreement by any successor public body. {H1444289.3 } -11- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' (g) The Authorizing Legislation has been duly passed and shall be in full force and effect on the earliest date permitted by law. Section 3.2 Representations and Covenants of OPT. OPT represents and covenants that: (a) It is a limited liability company duly organized and validly existing under the applicable laws of the State. (b) It is not in violation of or in conflict with any provisions of the laws of the State or of the United States of America applicable to OPT 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. The execution, delivery and performance do not and will not violate or conflict with any provision of law applicable to OPT, and do not and will not conflict with or result in a default under any agreement or instrument to which OPT 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 OPT and all steps necessary to be taken by OPT have been taken to constitute this Agreement, and the covenants and agreements of OPT contemplated herein are valid and binding obligations of OPT, enforceable in accordance with their terms. (e) There is no litigation pending or to its knowledge threatened agauist or by OPT wherein an unfavorable ruling or decision would materially adversely atTect OPT'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. {H1444289.3 } -12- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' (g) At the time this Agreement is executed, OPT does not owe any delinquent real or tangible personal property taxes to any taxing authority of the State of Ohio, and does not owe delinquent taxes for which OPT is liable under Chapter 5733, 5735, 5739, 5741, 5743, 5747, or 5753 of the Revised Code, or, if such delinquent taxes are owed, OPT currently is paying the delinquent taxes pursuant to an undertaking enforceable by the State of Ohio or an agent or instrumentality thereof, has filed a petition in bankruptcy under 11 U.S.C. A. 101, et seq., or such a petition has been filed against OPT. For the purposes of this certification, delinquent taxes are taxes that remain unpaid on the latest day prescribed for payment without penalty under the chapter of the Ohio Revised Code governing payment of those taxes. (h) It does not owe: (i) any delinquent taxes to the State of Ohio or a political subdivision of the State; (ii) any moneys to the State or a state agency for the administration or enforcement of any environmental laws of the State; and (iii) any other moneys to the State, a state agency or a political subdivision of the State that are past due, whether the amounts owed are being contested in a court of law or not. (i) It has made no false statements to Dublin in the process of obtaining approval of the incentives described in this Agreement. If any representative of OPT has knowingly made a. false statement to Dublin to obtain the incentives described in this Agreement, OPT shall be required to immediately return all benefits received under this Agreement pursuant Ohio Revised Code Section 9.66(C)(2) and shall be ineligible for any future economic development assistance from the State, any State agency or a political subdivision pursuant to Ohio Revised Code Section 9.66(C)(1). OPT acknowledges that any person who provides a false statement to secure economic development assistance may be guilty of falsification, a misdemeanor of the tu•st {H1444289.3 } -13- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' degree, pursuant to Ohio Revised Code Section 2921.13(D)(1), which is punishable by a fine of not more than $1,000 and/or a term of imprisonment of not more than six months. (Elva of ARTTCi,E III) {H1444289.3 } -14- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' ARTICLE IV CONVEYANCE OF PROPERTY Section 4.1 General. Dublin agrees to sell and OPT agrees to purchase the Property in accordance with this Article IV. The Parties agree and acknowledge that the Eiterman Road Parcel presently consists of a public right-of--way for Eiterman Road. Dublin agrees, prior to the date on which a certificate of occupancy is issued for the Proton Therapy Facility, to construct, or cause the construction of, an alternate route for Eiterman Road and to vacate, or cause the vacation of, and/or extinguish all utility and other easements applicable to the Eiterman Road Parcel in order that such Parcel may be conveyed to OPT. The Parties agree that if the Eiterman Road Parcel is conveyed subsequent to the conveyance of Dublin Parcel One and Dublin Parcel Two, then the Property Purchase Price will be paid at the time ofthe conveyance of Dublin Parcel One and Dublin Parcel Two. LJnless otherwise agreed by the Parties in writing, the Property Closing Date shall occur promptly following the Effective Date, but in no case more than thirty (34) days following the Effective Date. With respect to the conveyance of the Eiterman Road Parcel, the Property Closing Date shall be the earliest date practicable following both (i) the vacation or extinguishment of the related public right-of--way and (ii) the extinguishment of all utility or other easements applicable to that right-of--way, as described in this Section 4.1. Section 4.2 Conveyance of the Property. (a) Form of Property Deeds. Dublin ~~~ill convey fee simple title to the Property to OPT by the Property Deed. The conveyance and title for the Property shall, in addition to the conditions subsequent provided for in Sections 4.5, 6.6 and 8.3 of this Agreement and all other conditions, covenants, and restrictions set forth or referred to elsewhere in this Agreement, be subject to: {H1444289.3 } -15 ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' (i) Easements and rights-of--way of record for public utility service, and such additional easements or rights-of--way as are necessary for public utility service, or for other public infrastructure improvements for the benefit of the Proton Therapy Campus, including but not limited to easements or rights-of--way as may be required to install a sanitary sewer line (as generally depicted in EXHIBIT B) and to temporarily realign Eiterman Road, except those that are currently applicable to the Eiterman Road Parcel. At Dublin's option, such easements or rights-of--way (if any) which must be created after the date of this Agreement for the benefit of the Proton Therapy Campus or any other projects to be constructed upon the Property may be created either by reservation in the Property Deed to OPT, or by OPT's execution and delivery of easements or such other instruments to Dublin in a form satisfactory to the Director of Law and at no cost to Dublin, provided, however, that in either event any easements or rights-of--way that must be created after the date of this Agreement must be acceptable to OPT, which acceptance shall not be unreasonably withheld, conditioned or delayed; (ii) The covenants contained herein which are by the terms of this Agreement required to be covenants running with the land; (iii) Unpaid taxes and assessments, not delinquent; (iv) Zoning ordinances; (v) Aright of reversion which will automatically operate to revest title in favor of and be enforceable by Dublin if OPT shall not have satisfied the Escrow Release Requirements by the Latest Permitted Commencement Date; and (vi) Such additional title exceptions as will not materially and adversely affect the construction of the Proton Therapy Campus or the use of the Property. {H1444289.3 } -16- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' (b) Apportionment of Current Taxes. The portion of the real estate taxes, if any, for the tax year in which the Property Closing occurs, on the Property shall be apportioned between Dublin and OPT as of the Property Closing Date on a calendar year basis. Within thirty (30) days after Dublin pays real estate taxes on the Property, OPT shall directly reimburse Dublin for real estate taxes for the period on or after the Property Closing and prior to recording of the Property Deed. Real estate taxes for the tax years previous to the tax year in which the Property Closing occurs, if any, will be paid by Dublin. Prior to or after the Property Closuig, Dublin may, at its expense, seek a reduction of the assessed valuation of the Property, and OPT shall reasonably cooperate with Dublin in such efforts, including joining in any complaint against assessed valuation to be filed by Dublin. Dublin shall be entitled to any refund for real estate taxes paid by Dublin (whether by direct payment or as a result of proration at the Property Closing) for any time period prior to the applicable Property Closing Date. If any such refund is paid directly to OPT or credited to OPT on subsequent tax bills, then OPT shall promptly pay such amounts to Dublin. (c) Recordation of Deed. OPT shall pay all costs for recording each Property Deed. (d} Title Insurance. Simultaneously with the delivery of each Property Deed to the Escrow Agent, if requested by OPT, Dublin shall provide, at the expense of OPT, the Property Title Insurance Policy providing for title insurance in an agreed upon amount, insuring in OPT good title in fee simple, free and clear of all liens, encumbrances, restrictions, reservations, easements and conditions of record, except those created or permitted by this Agreement (including those referred to in this Section 4.2 and Sections 4.5, 6.6 and 8.3). If such Property Title Insurance Policy is not available to be delivered to OPT at the time of the Property Closing, Dublin shall provide simultaneously with the delivery of the Property Deed and at OPT's {H1444289.3 } -17- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' expense the Property Title Company's commitment (the "Property Title Committ~nent") for the Property Title Insurance Policy, and which Property Title Insurance Policy shall be delivered to OPT promptly after the Property Closing. (e) Survey. Dublin will, at its expense, cause to be performed with respect to the Property an ALTA survey (the "Property Survey") which shall be provided to OPT on or before the date that is five (5) days following the Effective Date. OPT's failure to provide Dublin «-~ith any written objections thereto prior to the Property Closing Date shall constitute its approval of the Property Survey. Dublin shall investigate, address, and remove any objections to the Property Survey within a reasonable time and a revised Property Survey shall be provided to OPT prior to the Closing Date. The Property Survey required hereunder shall be certified to OPT, the Property Title Company, and to Dublin. (f) Property Closing and Escrow Agent. (i) The conveyance of the Property shall be closed in Escrow with the Escrow Agent. This Agreement, together with the Escrow Agent's usual conditions of acceptance, shall serve as Escrow instructions for such Property Closing; provided, however, that in the event of any conflict between the provisions of this Agreement and the Escrow Agent's usual conditions of acceptance, the provisions of this Agreement shall govern. The Escrow Agent's usual conditions for closing shall be submitted to and approved in writing by the Parties hereto prior to the Property Closing. (ii) Dublin shall deposit each Property Deed with the Escrow Agent. Upon Dublin's deposit of the Property Deed, OPT shall deposit the Property Purchase Price with the Escrow Agent. Upon fulfillment of the Initial Escrow Release Requirements on or before the Latest Financing Completion Date, as evidenced by a written {H1444289.3 } -18- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' acknowledgement signed by Dublin and OPT, the Escrow Agent shall promptly file the Property Deed for recordation in the Deed Records of Franklin County, Ohio or Union County, Ohio, as the case may be and pay to Dublin the Property Purchase Price. In the event that OPT shall fail to fulfill the Initial Escrow Release Requirements on or before the Latest Financing Completion Date, then the Escrow Agent shall, upon the demand by Dublin, return the Property Deeds and Reconveyance Deed to Dublin and this Agreement shall terminate and be of no force and effect. (iii) All documents necessary for the completion of the Property Closing transaction shall be deposited with the Escrow Agent on or before fifteen (15) days before the Property Closing Date. In the event that any conditions precedent to the Property Closing have not been satisfied, or have not been waived in writing, the Property Closing may be extended for an additional period until such conditions have been satisfied, if and to the extent it is mutually agreed to in writing by the Parties hereto. (g) Existing Soil Mounds. The Parties acknowledge that Dublin has temporarily placed soil on certain portions of the Property creating a raised topography in that area (such portions being depicted on EXx~IT D which is attached hereto and incorporated herein by reference and the soil mounds being collectively refert•ed to as the "Soil Mound"). Following the Property Closing Date, Dublin will, at its sole expense, cause removal of the Soil Mound such that the topography of the Soil Mound area is consistent with the immediately surrounding topography. Dublin shall commence action at least five (5) days prior to the first date on which such Soil Mound must be removed so as not to directly interfere with any construction to be performed by OPT on the Property, provided that OPT has provided at least thirty (30) days prior written notice to Dublin of such date. Further, Dublin shall be responsible for any environmental {H1444289.3 } -19- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' contamination in the soil or groundwater at the Property reasonably demonstrated to have been caused by the Soil Mound. The Parties further agree that this Agreement will supersede a certain Storage Easement Agreement dated July 10, 2007, as executed by Dublin and recorded as instrument number 344108 in the Union County Recorder's Office. Section 4.3 Reconveyance Deed to be Held vi Escrow. The Parties agree that simultaneous with the Property Closing, OPT shall also deposit with the Escrow Agent the Reconveyance Deed for the Property pursuant to which the Property may be reconveyed to Dublin. In the event that OPT fails to achieve the Escrow Release Requirements by the Latest Permitted Commencement Date, and provided that any holder of a mortgage authorized by this Agreement has not foreclosed on such Property, Dublin shall have the right to command the Escrow Agent to release the Reconveyance Deed from escrow and for immediate delivery to Dublin upon which delivery the Property Deed shall be deemed void and of no further effect, and any estate conveyed therein by the Property Deed to OPT shall be deemed terminated and revested in Dublin. Section 4.4 Disclanners Related to Conveyance of Property. Except as otherwise specifically stated in Sections 3.1 or 4.2(g) or the warranties set forth in the Property Deed, Dublin hereby specifically disclaims any warY•anty, guaranty or representation, oral or written, past, present or future, of, as to, or concerning (a) the nature and condition of the Property, including, without limitation, the water, soil, environmental and geology, and the suitability thereof and of the Property for any and all activities and uses which OPT may elect to conduct thereon, and the existence of any environmental hazards or conditions thereon or compliance with all applicable laws, rules or regulations; (b) the nature and extent of any right-of--way, lease, possession, lien encumbrance, license, reservation, condition or otherwise unless identified in the {H1444289.3 } -20- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' Property Survey or the Property Title Commitment; and (c) the compliance of the Property or its operation with any laws, ordinances or regulations of any governmental or other body. However, within ten (10) days after the Effective Date, Dublin shall provide OPT with all documentation that it possesses relating to such matters. OPT acknowledges that it will inspect the Property and OPT will rely solely on its own investigation of the Property and not on any information provided or to be provided by Dublin relating to the physical condition of the Property, except as otherwise specified in Sections 3.1 or 4.2(g). In the event that OPT's investigation reveals an objectionable or unacceptable physical condition on the Property, as determined in its sole discretion, then its obligation to purchase the Property and to develop and/or construct the Proton Therapy Facility and Proton Therapy Campus thereon shall be eliminated. OPT further acknowledges that the information provided and to be provided with respect to the Property was obtained from a variety of sources and Dublin has not made any independent investigation or verification of such information; and Dublin does not make any representations as to the accuracy or completeness of such information, except as otherwise specified in Sections 3.1 or 4.2(g). The sale of the Property as provided for herein is made on an "as is," "where is" basis and with all faults, and OPT expressly ackno~~~ledges that, in consideration of the agreements of Dublin herein, except as otherwise specified in Sections 3.1 or 4.2(g) or the Property Deed, Dublin makes no warranty or representation, express or implied, or arising by operation of law, including, but not limited to, any warranty of condition, habitability, merchantability, suitability, tenantability or fitness for a particular purpose, in respect of the Property. {H1444289.3 } -21- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' Section 4.5 Restrictions Relating to Property Prior to Escrow Release Date. (a) Permitted Transfer or Assignment of the Property. OPT represents and agrees for itself, and its successors and assigns, that prior to the Latest Permitted Commencement Date, it will not make or create, or permit to be made or created, any total or partial sale, assignment, conveyance, or lease, or transfer in any other form with respect to this Agreement or the Property, without the prior written approval of Dublin, which approval may be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, OPT may assign certain rights and obligations hereunder to aNon-Profit Corporation provided that OPT has first received written consent to such transfer from Dublin, which written consent will not be unreasonably withheld. None of the restrictions or limitations on encumbrances under this Section 4.5 shall apply (i) to the portion of the Property acquired by a Bona Fide Purchaser, and upon the request of OPT or a Bona Fide Purchaser, Dublin shall release the parcel that is conveyed, or to be con~~eyed, to the Bona Fide Purchaser from the provisions of this Section 4.5 and 8.3, which release shall be in such form as will enable it to be recorded in the Franklin County Recorder's Ofl~ice or the Union County Recorder's Office, as the case may be, or (ii) to the Property following the Escrow Release Date, and Dublin shall release the Property from the provisions of this Section 4.5 and Section 8.3 as soon as practicable following the Escrow Release Date in such form as will enable it to be recorded in the Franklin County Recorder's Office or the Union County Recorder's Office, as the case may be. (b) Lunitation on Encumbrance of Property. Prior to the Escrow Release Date, neither OPT nor aNon-Profit Corporation shall engage in any financing or any other transaction creating any mortgage or other encumbrance or lien upon the Property or any part thereof, {H1444289.3 } -22- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attach to the Property or any part thereof, without the prior written approval of Dublin, which approval may be unreasonably withheld. (Elva of ARTICZE IV) {H1444289.3 } -23- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' ARTICLE V CONSTRUCTION OF THE PROTON THERAPY FACILITY, THE PROTON THERAPY CAA~IPUS AND THE RELATED PUBLIC IMPROVEMENTS Section 5.1 Construction of the Proton Therany Facility and the Proton Therau`~ Ca~nuus. Upon and subject to the terms and conditions of this Agreement and in consideration of Dublin's agreements set forth herein, OPT, together with such other entities as may be required, agrees to finance, acquire, construct, improve, develop and commence operation of the Proton Therapy Facility. OPT shall use its best efforts to cause the construction of the Proton Therapy Facility to be commenced with all reasonable dispatch no later than the Latest Permitted Commencement Date. OPT shall pay, or cause to be paid, all costs incurred in connection with the financing, acquisition, construction, improvement, development and operation of the Proton Therapy Facility. Except as otherwise provided in this Agreement, Dublin shall have no responsibility with respect to the financing, acquisition, construction, improvement, development and operation of the Proton Therapy Facility. OPT further agrees to proceed with all reasonable dispatch to provide for the development of the remainder of the Proton Therapy Campus. In prosecuting the development of the Proton Therapy Campus and in performing its obligations under this Agreement, OPT shall comply with, and cause all of its employees, agents, contractors and consultants to comply with, all applicable federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter inexistence affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, {H1444289.3 } -2~' ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to OPT, at any time in force affecting the Property or any part thereof. Section 5.2 Fowiclation Permit. In recognition that time is of the essence with respect to these matters, Dublin agrees that it will promptly issue to OPT a foundation permit and such other building, occupancy, or similar permits as may be needed for the construction and operation of the Proton Therapy Facility in accordance with and subject to all normal governmental requirements unless otherwise set forth herein. Section 5.3 Zoning and Architecture. (a) The Parties acknowledge that the Proton Therapy Facility and many of the supporting facilities to be found on the Proton Therapy Campus are allowed as permitted or conditional uses under the High-Density POD (HDP) zoning classification that currently applies to the Property. Prior to developing any portion of the Proton Therapy Facility Site, OPT shall submit a development plan application in accordance with Section 153.042(E) ofthe Dublin City Code. Such an application shall be subject to administrative stafT level review under the "Administrative Review" procedure that is described in Section 153.042 of the Dublin City Code. In reviewing such an application, the following shall be considered as "Administrative Departures" as defined and provided for in Section 153.042(E)(6) ofthe Dublin City Code: (i) Deviations from the applicable architectural requirements of the Dublin City Code for the Proton Therapy Facility that are the result of the unique nature of the uses that will be found in the Proton Therapy Facility; and (ii) Reduction in the number of parking spaces required for the Proton Therapy Facility. {H1444289.3 } -25- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' (b) To the extent that approvals of conditional uses or variances are necessary under the current zoning classification in order to effectuate the terms of this Agreement, including the development of the Proton Therapy Campus as contemplated herein, Dublin shall use its best efforts to facilitate such approvals in a timely fashion. In the event that conditional use and/or variance applications relating to the Property must be filed prior to the Escrow Release Date, then Dublin agrees to sign such applications and to be a co-applicant thereon. Dublin further agrees to be a co-applicant on any conditional use and variance applications that relate strictly to the Proton Therapy Facility and are filed prior to the issuance of an occupancy permit for that fac ility. (c} Dubini shall use its reasonable and good faith efforts to file (if so obligated), process, review, and approve in a timely fashion all plats that are necessary to effectuate the development of the Proton Therapy Facility and the Proton Therapy Campus. Section 5.4 Construction of the Public Improvements. (a) The Parties acknowledge and agree that the Public Improvements will greatly enhance access to the Proton Therapy Campus and expedite commercial development in proximity to the Proton Therapy Campus. Based upon Section 2.1, upon and subject to the terms and conditions of this Agreement and in consideration of PT's agreements set forth herein, Dublin agrees, subject to making arrangements to provide for the necessary financing to pay the costs thereof, including, without limitation, issuance by Dublin of its bonds or other obligations, to finance, acquire, construct, improve and maintain the Public Improvements. Dublin agrees to snake its best efforts to obtain such financing. The Parties acknowledge that if any portion of the Property is sold or leased to aNon-Profit Corporation, the bonds or other obligation to be issued by Dublin to finance the costs of the Public Improvements may need to be issued as Qualified {H1444289.3 } -26- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' 501(c)(3) Bonds in accordance with the Internal Revenue Code in order that the interest thereon tnay be exempt from local, state and federal income taxation. If Dublin determines (based on the sole advice of Dublin's bond counsel) that Dublin's bonds or obligations must be issued as Qualified 501(c)(3) Bonds in order that the interest thereon may be exempt from local, state and federal income taxation, OPT agrees to cause the Non-Profit Corporation to deliver a legal opinion to and any related certificates Dublin (the form of which shall be provided by Dublin's bond counsel) which will relate to the 501(c)(3) status of the Non-Profit Corporation and further agrees that if the Non-Profit Corporation does not deliver such legal opinion and any related certificates in a form which is acceptable to Dublin and Dublin's bond counsel, then Dublin shall have no obligation to construct the Public Improvements in accordance with this Agreement. OPT further agrees that if any portion of the Property is to be sold or leased to aNon-Profit Corporation following the issuance of Dublin's bonds or other obligations, such sale or lease shall not be consummated until such time as Dublin has received a legal opinion and any related certificates (as described above) in a form which is acceptable to Dublin and Dublin's bond counsel. (b) Unless otherwise set forth herein, Dublin shall use its best efforts to cause the Phase I Public Improvements (subject to any changes requu•ed by the Dublin City Engineer) to be completed with all reasonable dispatch on or before the date on which Dublin issues a certificate of occupancy for the Proton Therapy Facility. The Parties agree to act in good faith to cause the Phase I Public Improvements to be completed to allow for the development of the Proton Therapy Facility. Such Phase I Public Improvements shall be in conformity with the requirements of Dublin's usual standards and specifications for such Phase I Public Improvements. {H1444289.3 } -2 f - ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' (c) Dublin further agrees that it will, within eighteen (18) months following receipt of a written request from OPT for the construction of a specific Phase II Public Improvement or a Future Phase Public Improvement, construct such specific Phase II Public Improvement or Future Phase Public Improvement; provided, however, OPT agrees that Dublin's obligation to construct such specific Phase II Public Improvement or Future Phase Public Improvement shall be conditioned upon Dublin's determination, in its sole discretion, that an adequate quantity of development to be directly served by such Phase II Public Improvement or Future Phase Public Improvement will be present within a reasonable period of time after such specific Phase II Public Improvement or Future Phase Public Improvement is complete and that sufficient monies shall be available and appropriated by the City for the purpose of paying the costs of those Phase II Public Improvements or Future Phase Public Improvements. (d) Prior to undertaking any such Public Improvements, and at Dublin's option, Dublin shall reserve from its conveyance of the Property to OPT, and OPT shall convey or dedicate to Dublin with respect to the Property or any other real property hereafter acquired by OPT or any of its afTiliates within the Central Ohio Innovation Center, at no cost to Dublin, fee simple title to such property, free and clear of any liens, encumbrances or other title exceptions except those satisfactory to Dublin, as is necessary for the public rights of way for all public street improvements included within the Public Improvements, and in addition, such fee simple title or permanent easements (at Dublin's option, and in such forms satisfactory to Dublin) as Dublin may require for the construction of such part of the Public Improvements as are not located within public rights of way. Any such permanent easements requested by Dublin shall be in such forms as are satisfactory to Dublin and OPT and as are necessary to enable Dubini to carry out the construction, operation, inspection, maintenance, repair, improvement, and {H1444289.3 } -28- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' replacement of any part of such Public Improvements as are not located within public rights of way. OPT hereby grants such temporary construction easements on the Property as are reasonably necessary from time to time to enable Dublin to construct and complete the Public Improvements, and agrees to execute and deliver to Dublin from time to time temporary construction easements in forms satisfactory to Dublin. (e) Dublin shall pay, or cause to be paid, all costs incurred in connection with the financing, acquisition, construction, improvement and maintenance of the Public Improvements. Except as otherwise provided in this Agreement (specifically but not limited to OPT's obligations to convey or dedicate property necessary for public rights of way and to make Service Payments as described herein), OPT shall have no responsibility with respect to the financing, acquisition, construction, improvement and maintenance ofthe Public Improvements. (f) EXHIBIT B (attached hereto and incorporated herein by reference) is a schematic of the public road network which shall include but not be limited to proposed curb cuts, rights of ways, and intersection improvements, subject to final reasonable approval of the Dublin City Engineer. Section 5.5 Certificate of Commencement for Proton Therapy Facility. (a) After satisfaction of the Escrow Release requirement on or before the Latest Permitted Commencement Date and upon the request of OPT, Dublin will furnish OPT with an appropriate instrument certifying commencement of construction on the Proton Therapy Facility. The certification by Dublin shall be (and it shall be so provided in the Property Deed and in the certification) a conclusive determination of satisfaction and termination of the covenants in this Agreement and the Property Deed with respect to the obligations of OPT and its successors and assigns to construct the Proton Therapy Facility on the Property. The certification provided for {H1444289.3 } -29- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' in this Section shall further release all of the Property from the provisions of Sections 4.5 and 8.3 of this Agreement; provided, however, any portion of the Property not theretofore released from Section 6.6 shall still be subject to Section 6.6. (b) The certification provided for in this Section shall be in such form as will enable it to be recorded in the Franklin County Recorder's Office or the Union County Recorder's Office, as the case may be, in the records for the recordation of the Property Deed and other instruments pertaining to the Property. If Dublin shall refuse or fail to provide any certification in accordance with the provisions of this Section, Dublin shall, within thirty (30) days after written request by OPT, provide OPT with a written statement, indicating in adequate detail in what respects OPT has failed to satisfy the Escrow Release Requirements in accordance with the provisions of this Agreement, or is otherwise in default, and what measures or acts will be necessary, in the opinion of Dublin, for OPT to take or perform in order to obtain such certification. (c) The certification of completion provided for in this Section may be given by the City Manager. Section 5.6 ~'4~ater Tower Property. Dublin is the owner of certain real property located adjacent to Post Road known as Union County Parcel Number 390001014000 and which is generally depicted and labeled on EXHIBIT F as the "Water Tower Property." Upon the request of OPT, which request must be submitted in writing with ninety (90) days after the Public Improvements are completed, Dublin shall transfer the Water Tower Property to OPT through a quitclaim deed. The quitclaim deed shall retain for Dublin an easement to permit the continued use, operation, and maintenance of a municipal water tower on the Water Tower Property and shall provide that when Dublin discontinues its use of the existing water tower on {H1444289.3 } -30- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' the Water Tower Property and removes said structure therefrom, the easement shall be extinguished. Section 5.7 Floodplain. Dublin paid for and has caused to be prepared a floodplain study for the stream running through the Property to accurately depict the existing flood hazard areas on the Property on the Federal Emergency Management Agency (FEI~•IA) Flood Insurance Rate Maps. These flood hazard areas, based on FE11~IA's and Dublin's requirements, are identified on EXHIBIT E (attached hereto and incorporated herein by reference}. Dubini will perform a master fill plan and additional floodplain studies to determine the amount of additional soil fill required to undertake the Public Improvements on and around the Property, to determine the amount of fill needed to remove as much of the Property from the 144-year floodplain as allowed by FEMA regulations, and to investigate the installation of vehicular and pedestrian crossings of the stream found on the Property. Dublin will allow the filling of the floodplain based on the results of the additional floodplain studies in lieu of compliance with the Compensatory Storage requirements set forth in Section 53.484 of the Dublin Codified Ordinances and will not charge OPT the required fee for a Special Flood Hazard Area Permit for development on the Property. The Parties further agree that at such time as is mutually agreeable to the Parties, the Parties will cooperate in the preparation of an application (which application will be executed, funded and submitted by Dublin) for the issuance of any required LOMR-F(s) from FEMA for the Property. Following completion ofthe additional floodplain studies and in a timely manner to facilitate development of the Property, Dublin agrees to pay for and cause such additional soil fill to be applied to those portions of the Property upon which Public Improvements will be constructed and OPT agrees to pay for and cause such additional soil fill {H1444289.3 } -31- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' to be applied in a timely manner to facilitate development of those portions ofthe Property upon which private improvements will be constructed. Section 5.8 Post Raad Property. The Parties recognize that the installation of the Public Improvements may have an impact on the property known as Franklin County Parcel Number 273-411342 and Union County Parcel Number 39-OOOlU03.0(~~ that is currently owned by 7001 Post Road LLC and is depicted and labeled as the "Post Road Property" on EXHIBIT A- 1. Dublin shall be solely responsible for obtaining any temporary or permanent easements and acquiring any rights-of--way from the owner of the Post Road Property that are necessary in order to install the Public Improvements. Dublin also shall be responsible for the removal of the private drive that currently provides vehicular access between the Post Road Property and Post Road and for providing alternative j~ehicular access between that property and the public road system at a location which, after reasonable consultation with OPT, shall be determined by City. Dublin shall ensure that any new vehicular access that is provided between the Post Road Property and the public road system shall permit vehicular access between relevant portions of the Property and the public road system. Section 5.9 Prevailing Vt~a~e. To the extent that the provisions of Chapter 4115 of the Ohio Revised Code are applicable to the construction of any improvement upon the Proton Therapy Campus, OPT agrees to comply, or cause such other parties to comply, with those provisions. (END OF ARTICLE V) {H1444289.3 } -32- ~" * * City Draft of February 12, 2009 -For Discression Prtrposes Only * * * ~' ARTICLE VI ADDITIONAL FINANCIAL AND RELATED INCENTIVES Section 6.1 General Provision Relating to Additional Financial and Related Incentives. In consideration of OPT's agreements set forth herein, Dublin agrees to make or provide for the additional incentives described in this Article VI for the purpose of facilitating the development of the Proton Therapy Facility. Section 6.2 Incentive Payments. Dublin agrees to make certain incentive payments to OPT in accordance with this Section 6.2. (a) Calculation of Income Tax Revenues. On or before March 15 of each year, commencing with the first year following the issuance of a certificate of occupancy for the Proton Therapy Facility and continuing until the Maximum Payment Amount has been paid by Dublin to OPT, Dublin shall calculate the actual payroll withholding taxes (the "Actual YVithholdings") and net profits taxes (the "Net Profits Taxes") collected in respect of the Proton Therapy Facility during the preceding calendar year. OPT agrees that, in accordance with the Dublin City Code, the annual payroll reconciliation relating to persons employed at the Proton Therapy Facility will be provided to Dublin prior to February 1 of each calendar year. (b) Pa~anents to OPT. Dublin shall, on or before April 15 of the then current calendar year, pay to OPT, solely from Nontax Revenues, an amount equal to the product of (A) an amount equal to the Actual Withholdings (net of refunds) plus an amount equal to the Net Profits Taxes (net of refunds), multiplied by (B) fifty percent (50%). (c) Maximum Incentive Payments. In no event shall the aggregate amount of incentive payments made by Dublin to OPT pursuant to this Section 6.2 exceed Two Hundred Fifty Thousand Dollars ($250,000) per year. In no event shall the aggregate amount of payments {H1444289.3 } -33- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' made by Dublin to OPT pursuant to this Section 6.2 during the term of this Agreement exceed the Maximum Payment Amount. (d) Dublin Deficiency Carry forward Amounts. If and to the extent the amount of Nontax Revenues is insufficient in a particular calendar year for appropriation and payment to OPT, Dublin will snake payment to OPT in the amount of Nontax Revenues available for appropriation and payment to OPT. The difference between the amount requu•ed to be paid by Dublin to OPT pursuant to this Section &.2 and the amount actually paid (referred to herein as a "Dublin Deficiency Cat~ryforwcrrd Amount") shall be carried forward to the next succeeding calendar year and paid to OPT in addition to any other payment for that succeeding year required by this Section 6.2. This Agreement shall not terminate until Dublin has paid to OPT all Dublin Deficiency Carryforward Amounts required to be paid to OPT in accordance with this Section 6.2; provided, however, the aggregate of all payments to OPT pursuant to this Agreement shall not exceed the Maximum Payment Amount. (e) Method of Payment. The payments provided for in this Section 6.2 shall be made by electronic funds transfer or by such other manner as is mutually agreed to by Dublin and OPT. (f) Obligation to Make Payments Nat Debt; Payments Lvnited to Nontax Revenues. Notwithstanding anything to the contrary herein, the obligations of Dublin pursuant to this Agreement shall not be a general obligation debt or bonded indebtedness, or a pledge of the general credit or taxes levied by Dublin, and OPT shall have no right to have excises or taxes levied by Dublin, the State or any other political subdivision of the State for the performance of any obligations of Dublin herein. Consistent with Section 13 of Article VIII, Ohio Constitution, any payments or advances required to be made by Dublin pursuant to this Section 6.2 shall be {H1444289.3 } -34- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' payable solely from Dublin's Non-Tax Revenues. Further, since Ohio law limits Dublin to appropriating monies for such expenditures only on an annual basis, the obligation of Dublin to make payments pursuant to this Section 6.2 shall be subject to annual appropriations by the Dublin City Council and certification by the Director of Finance of Dublin as to the availability of such Nontax Revenues. Section 6.3 Fiber L?se Aaree~nent. Dublin will provide to OPT two fibers in its Dublink fiber optic network pursuant to the Fiber Use Agreement attached as EkHIBIT G. Section 6.4 State of Ohio Funding. The Parties anticipate that, due to the importance of the Proton Therapy Campus to the local and state economies, it is possible that the State's General Assembly may commit public dollars for use in funding various public infrastructure improvements that will be necessary to serve the Central Ohio Innovation Center, including the Proton Therapy Campus (the "State Funding"). Dublin agrees that if any State Funding is awarded to Dublin, such State Funding will be used by Dubini for the prescribed purpose(s) as defined in the applicable funding legislation and/or agreement. Section 6.5 Additional Efforts. Dublin agrees to work in a reasonable and cooperative manner with OPT to facilitate the development of the Proton Therapy Campus. Dublin will use reasonable efforts to continue to assist OPT and its affiliates in securing further funding from governmental and/or other sources in furtherance of the viability of the Proton Therapy Campus. If OPT or its affiliates acquire the other land in close proximity to the Proton Therapy Campus, Dublin will use its best efforts to facilitate the applicable zoning necessary to allow such additional land to be developed in a manner that furthers the viability of the Proton Therapy Campus. {H1444289.3 } -35- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' Section 6.6 Master Development of Proton Therapy Campus. OPT agrees to use good faith efforts to promote and fully develop the Proton Therapy Campus. In consideration for the construction of the Proton Therapy Facility, Dublin has agreed herein to convey the Additional Development Site to OPT in consideration for the creation of jobs and employment opportunities within Dublin. Dublin agrees that OPT shall be permitted to develop and/or construct projects on the Additional Development Site in accordance with this Section. (a) In order to accelerate the development and construction of the Additional Development Site, Dublin also may seek to attract third parties to locate facilities and businesses on the Additional Development Site. Dublin shall refer such third parties desiring to locate upon the Additional Development Site to OPT. OPT shall negotiate in good faith towards an agreement pursuant to which such third parties can locate facilities in the Additional Development Site. If negotiations shall fail (and Dublin agrees that a failure may not exist as a result of that thud party failing to negotiate in good faith), and if such third party remains interested in locating facilities and businesses within the Additional Development Site, then Dublin may, but shall not be obligated to, repurchase such portion of the Additional Development Site for the purchase price of One Dollar ($1.00) per acre, plus a proportionate share of any infrastructure and other development costs that have been incurt•ed by OPT with respect to the subject portion of the Additional Development Site, for the purpose of conveying to such third party the portion of the Additional Development Site. (b) Dublin agrees that, upon receipt by Dublin of an executed contract for the development of any portion ofthe Additional Development Site which contract will be subject to the reasonable approval of Dublin, such portion of the Additional Development Site shall no longer be subject to the provisions of Section 6.6(d); provided, however, if Dublin determines {H1444289.3 } -36- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' that no jobs have been created upon that portion of the Additional Development Site within tluee (3) years following the execution of the contract referred to above, then Dublin shall be entitled to purchase such portion of the Additional Development Site for a purchase price equal to One Dollar ($1.00), plus a proportionate share of any infrastructure and other development costs that have been incurred with respect to the subject portion of the Additional Development Site. (c) Notwithstanding anything to the contrary herein, OPT shall not engage in any financing or in any other transaction creating any mortgage or any other encumbrance or lien upon the Additional Development Site except, with the prior written approval of Dublin, OPT tnay encumber the Additional Development Site with respect to indebtedness incurred in connection with the construction of any infrastructure or other development costs associated solely with the Additional Development Site; provided, however, OPT agrees that any such mortgage, encumbrance or lien shall provide for a partial release. (d) In the event that the Proton Therapy Facility is not fully constructed and operational by December 31, 2017, then any portion of the Additional Development Site, which has not been otherwise released pursuant to Section 6.6(b) shall revert to Dublin. OPT agrees that it ~-i11 act in good faith to reconvey such portion of the Additional Development Site to Dublin within thu-ty (30) days of its receipt of notice from Dublin that it is exercising its right to repurchase such remaining portion of the Additional Development Site for a purchase price equal to One Dollar ($1.00), plus a proportionate share of any infrastructure and other development costs that have been incurred by OPT with respect to such portion of the Additional Development Site. This reversion right shall attach to the Additional Development Site and any subsequent purchaser of any portion of the Additional Development Site shall be subject to this provision except as otherwise provided in Section 6.6(b). {H1444289.3 } -37- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' (e) The Parties agree that any exercise by Dublin of its right pursuant to this Section 6.6 to repurchase any portion of the Additional Development Site shall be subject to any mortgage liens theretofore approved pursuant to Section 6.6(c). (END OF ARTICLE Vn {H1444289.3 } -38- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' ARTICLE VII TAX INCREMENT FINANCING Section 7.1 General Provision Relating to Tax Increment Financing. The Parties agree that Dublin, at its sole cost and expense, shall undertake a tax increment financing pursuant to the TIF Statute to facilitate the construction of the Public Improvements, all as more particularly described in this Article VII. Section 7.2 TIF Legislation. Following the Effective Date, Dublin anticipates that the Dublin City Council will pass an ordinance (the "TIF Ordinance") pursuant to the TIF Statute thereby exempting from taxation (the "TIF Exerr~ption") any Improvements to the Property (as the term Improvements is defined in the TIF Statute) and requiring the current and future property owners to pay service payments in lieu of taxation in respect of the Improvements exempted from taxation. Section 7.3 Service Pa`~nents. OPT hereby agrees to make service payments in lieu of taxes (the "Service Payments") attributable to its period of ownership of the Property, all pursuant to and in accordance with the requirements of the TIF Statute, the TIF Ordinance and any subsequent amendments or supplements thereto. Service Payments will be made semiannually to the Franklin County Treasurer or the Union County Treasurer, as the case may be (or to such treasurer's designated agent for collection of the Service Payments) on or before the date on which real property taxes would otherwise be due and payable for the Property. Any late payments will bear penalties and interest at the then current rate established under Ohio Revised Code Sections 323.121 and 5703.47 or any successor provisions thereto, as the same maybe amended from time to time. Service Payments will be made in accordance with the requirements of the TIF Statute and the TIF Ordinance and will be in the same amount as the real property taxes that would have {H1444289.3 } -39- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' been charged and payable against the Improvements (after credit for any other payments received by Dublin under Ohio Revised Code Sections 319.302, 321.24, 323.152 and 323.156, or any successor provisions thereto, as the same may be amended from time to time, and are referred to herein as the "Property Tcrx Rollback Pcryrnents") had the TIF Exemption not been granted, inchiding any penalties and interest. OPT will not, under any circumstances, be required for any tax year to pay both real property taxes and Service Payments with respect to the Improvements, whether pursuant to Ohio Revised Code Section 5709.42 or this Agreement. Further, OPT will not, under any circumstance, be required for any tax year to pay Service Payments with respect to any Improvements which are exempt from real property taxation pursuant to any section of the Ohio Revised Code other than the TIF Statute. Section 7.4 Real Property TaY EYe~nution Related to Non-Profit C~ornoration. The Parties acknowledge and agree that Dublin's ability to collect Service Payments is integral to Dublin's ability to finance the Public Improvements. Accordingly, if a Non-Profit Corporation hereafter owns or leases any portion of the Property, OPT, on behalf of itself and any successors to OPT or successors in interest to the Property, acknowledges and agrees that the then current owner of any portion of the Property may not file an application to exempt such portion of the Property from real property taxation for so long as Dublin is entitled to collect Service Payments pursuant to the TIF Ordinance; provided, however, the Parties agree that any then current owner of the Property may, in cooperation with Dublin, sign and file an exemption application (as described in Section 7.6) in connection with the TIF Exemption. Section 7.5 Declaration of Covenants; Priority of Lien. It is intended and agreed, and it will be so provided by OPT in a declaration relating to the Property (the "Declcrrcrtion") that the covenants provided in Sections 7.3, 7.4, 7.5, 7.6, 7.10 and 7.11 of this Agreement are {H1444289.3 } -40- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' covenants running with the land and that they will, in any event and without regard to technical classification or designation, legal or otherwise, be binding to the fullest extent permitted by law and equity for the benefit and in favor of and enforceable by Dublin and any third party beneficiaries against any owner of a portion of the Property with respect to that owner's period of ownership of that portion of the Property, whether or not this Agreement remains in effect or whether or not such provision is included by an owner in any deed to such owner's successors and assigns. It is further intended and agreed that these agreements and covenants will remain in effect for the full period of exemption permitted in accordance with the requirements of the TIF Statute and the TIF Ordinance enacted pursuant thereto. Such covenants running with the land will have priority over any other lien or encumbrance on the Property and any improvements thereon, except for such title exceptions as are approved in writing by Dublin, and OPT will, upon Dublin's request, cause any and all holders of mortgages or other liens existing on the Property as of the time of recording of the Declaration to subordinate such mortgage or lien to those covenants running with the land. The parties acknowledge that the provisions of Ohio Revised Code Section 57Q9.91, which specify that the Service Payments will be treated in the same manner as taxes for all purposes of the lien described in Ohio Revised Code Section 323.11 including, but not limited to, the priority of the lien and the collection of Service Payments, will apply to this Agreement and to the Property and any improvements thereon. Section 7.6 Exemption Applications. Dublin and OPT agree to cooperate in the preparation, execution and filing of all necessary applications and supporting documents to obtain from time to time the TIF Exemption and to enable Dublin to collect Service Payments with respect to the Property. Dublin will perform such acts as are reasonably necessary or {H1444289.3 } -41- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' appropriate to effect, claim, reserve and maintain the TIF Exemption and collect the Service Payments including, without limitation, joining in the execution of all documentation and providing any necessary certificate required in connection with the TIF Exemption or the Service Payments. OPT authorizes Dublin to file any applications necessary to obtain from time to time the TIF Exemption as may be provided in the TIF Ordinance. Section 7.7 Title Evidence. At Dublin's option and at its request, OPT hereby agrees to provide such title evidence, at no cost to Dublin, as is necessary to demonstrate to Dublin's satisfaction that the covenants running with the land provided the Declaration are prior and superior to any other liens, encumbrances or other title exceptions, except for those which are approved in writing by Dublin. Section 7.8 Release. Upon satisfaction of OPT's obligations under this Agreement with respect to the Tax Exemption and termination of the OPT's obligation to make the Service Payments, Dublin will, upon the request of OPT, execute an instrument in recordable form evidencing such termination and releasing the covenants running with the land set forth in the Declaration. Section 7.9 Estoppel Certificate. Within thu-ty (30) days after a request from any owner of a portion of the Property, Dublin will execute and deliver to that owner or any proposed purchaser, mortgagee or lessee of such portion of the Property, a certificate stating that with respect to such portion of the Property, if the same is true: (a) that this Agreement is in full force and effect; (b) that the requesting owner is not in default under any of the terms, covenants or conditions of this Agreement, or, if that owner is in default, specifying same; and (c) such other matters as that Owner reasonably requests. {H1444289.3 } -42- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' Section 7.10 Tax Incentive Review Council. OPT agrees to cooperate ii7 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 aiulually during the term of this Agreement the compliance of OPT with the terms of this Agreement. Any information supplied to such Tax Incentive Review Council will be provided solely for the purpose of monitoring OPT's compliance with this Agreement. Section 7.11 Nondiscriminatory Hiring Policy. OPT will comply with the Dublin's nondiscriminatory hiring policy adopted pursuant to Ohio Revised Code Section 5709.832. In furtherance of that policy, OPT agrees that it will not deny any individual employment solely on the basis of race, religion, sex, disability, color, national origin, or ancestry. (END OF ARTICLE VII) {H1444289.3 } -43- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES Section 8.1 General. Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by either Party hereto, such Party shall, upon written notice from the other, proceed immediately to cure or remedy such default or breach, and, in any event, within thirty (30) days after receipt of such notice. In the event such default or breach is of such nature that it cannot be cured or remedied within said thirty (34) day period, then in such event the Party shall upon written notice from the other commence its actions to cure or remedy said breach within said thirty (30) day period, and proceed diligently thereafter to cure or remedy said breach. In case such action is not taken or not diligently pursued, or the default or breach shall not be cured or remedied within a reasonable time, the aggrieved party may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the party in default or breach of its obligations. Section $.2 Termination by Dublin Prior to Conveyance of Property. In the event that: (a) Prior to conveyance of the Property to OPT and in violation of this Agreement OPT assigns or attempts to assign this Agreement or any rights therein without the prior written approval of Dublin, or (b) OPT does not pay the Property Purchase Price for the Property and take title to the Property on tender of conveyance by Dublin pursuant to this Agreement, and if any default or failure referred to in the aforesaid subdivisions (a) or (b) of this Section 8.2 shall not be cured or remedied within thirty (34) days after the date of written demand by Dublin, then the Agreement {H1444289.3 } -44- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' and all rights of OPT under the Agreement shall be terminated at the option of Dublin. In the event of any such termination, OPT shall not have any further rights under this Agreement. In the event that Dublin is unable to tender conveyance or possession of the Property or any part thereof in the manner and condition provided in this Agreement, by reason of Dublin being enjoined or prevented, or being otherwise unable, by reason of any order or decision or action of any judicial body having authority in the premises, then this Agreement may, at the option of OPT, be canceled in its entirety or canceled with respect to that portion of the Property not conveyed to OPT at the time of such cancellation, and neither Dublin nor OPT shall have any further rights against or liability to the other under this Agreement as to the Property or the part thereof not conveyed to OPT. Section 8.3 Release of Prouei~ty Deed From Escrow. In the event that subsequent to conveyance of the Property by the Escrow Agent to OPT and prior to the Escrow Release Date: (a) OPT shall place or permit (including by aNon-Profit Corporation) to be placed on the Property or any part thereof any encumbrance or lien not authorized by this Agreement, or shall suffer any levy or attachment to be made, or any materialmen's or mechanics' lien, or any other unauthorized encumbrance or lien to attach, and such encumbrance or lien shall not have been removed or discharged or provision satisfactory to Dublin made for such payment, removal, or discharge, within ninety {94) days after written demand by Dublin so to do; provided, however, any such mechanic's or materialmen's lien may continue during the period in which OPT is diligently and in good faith contesting such lien, unless or until Dublin determines, and delivers written notice to OPT, that the continuation of the lien will jeopardize the Property or part thereof or completion of the Proton Therapy Facility thereon; or {H1444289.3 } -45- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' (b) There is, in violation of this Agreement, any transfer of the Property or any part thereof, and such violation shall not be cured within ninety (90) days after written demand by Dublin, then, provided that any holder of a mortgage authorized by this Agreement has not foreclosed on such Property, Dublin shall have the right to command the Escrow Agent to release the Property Deed and/or Reconveyance Deed, as the case may be, from escrow and delivered to Dublin upon which delivery the Property Deed shall be deemed void and of no further effect, and any estate comTeyed therein by the Property Deed to OPT shall be deemed terminated and revested in Dublin. Section 8.4 Failure to Satisfy Escrow Release Requirements. In the event that OPT fails to achieve either the Initial Escrow Release Requirements by the Latest Financing Commencement Date or the Escrow Release Requirements by the Latest Permitted Commencerent Date, then, provided that any holder of a mortgage authorized by this Agreement has not foreclosed on such Property, Dublin shall have the right to command the Escrow Agent to release the Property Deed and/or Reconveyance Deed, as the case may be, from escrow and deliver it to Dublin upon which delivery the Property Deed shall be deemed void and of no further effect, and any estate conveyed therein by the Property Deed to OPT shall be deemed terminated and revested in Dublin. Section 8.5 Other Ri6hts and Remedies; No Waiver by Delay. Dublin and OPT shall each have the right to institute such actions or proceedings as it may deem desirable for effectuating the purposes of, and its remedies under, this Agreement; provided, that any delay by either party in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under this Agreement shall not operate as a waiver of such rights or to deprive it of or limit such right in any way (it being the intent of this provision that neither party should be {H1444289.3 } -46- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' constrauied, so as to avoid the risk of being deprived of or limited in the exercise of the remedy provided in this Agreement because of concepts of waiver, laches, or otherwise, to exercise such remedy at a time when it may still hope otherwise to resolve the problems created by the default involved); nor shall any waiver in fact made by either party with respect to any specific default by the other party under this Agreement be considered or treated as a waiver of the rights of such party with respect to any other defaults by the other party this Agreement or with respect to the particular default except to the extent specifically waived in writing. Dublin shall also have the right to enforce the remedy set forth in Sections 8.3 and 8.4 by executing and recording or filing among the public land records in the office in which the Property Deed is recorded a written declaration of the termination of all the right, title and interest of OPT, and (subject to such mortgage liens as provided in Sections 8.3 and 8.4), their successors in interest and assigns, in the Property, as the case may be, and the revesting of title thereto in Dublin. Section 8.6 Force l~Iaieure. Except as otherwise provided herein, neither Dublin nor OPT shall be considered in default in its obligations to be performed hereunder, if delay in the performance of such obligations is due to unforeseeable causes beyond its control and without its fault or negligence, including but not limited to, acts of God or of the public enemy, acts or delays of the other party, fires, floods, unusually severe weather, epidemics, freight embargoes, unavailability of materials, strikes or delays of contractors, subcontractors or materialmen but not including lack of financing capacity; it being the purpose and intent of this paragraph that in the event of the occurrence of any such enforced delay, the time or times for performance of such obligations shall be extended for the period of the enforced delay; provided, however, that the Party seeking the benefit of the provisions of this Section 8.6 shall within fourteen (14) days {H1444289.3 } -47- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' after having actual knowledge of the beginning of such enforced delay, notify the other Party in writing thereof and of the cause thereof and of the duration thereof or, if a continuing delay and cause, the estimated duration thereof, and if the delay is continuing on the date of notification, within thirty (30) days after the end of the delay, notify the other Party in writing of the duration of the delay. (E1vn of ARTTCi,E VIII) {H1444289.3 } -48- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' ARTICLE IX MISCELLANEOUS Section 9.1 Assignment. This Agreement may not be assigned without the prior written consent of all non-assigning Parties; provided, however, OPT may transfer its rights and obligations hereunder with respect to the Proton Therapy Facility Site and the construction of the Proton Therapy Facility to aNon-Profit Corporation provided that OPT has first received written consent to such transfer from Dublin, which written consent will not be unreasonably withheld. Section 9.2 Binding Effect. The provisions of this Agreement shall be binding upon the successors or assigns of the Parties. Section 9.3 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 9.4 Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties relating to the subject matter herein and therein and may not be amended, waived or discharged except in an instrument in writing executed by the Parties. Section 9.5 Executed Caunteruarts. This Agreement may be executed in several counterparts, each of which shall be deemed to constitute an original, but all of which together shall constitute but one and the same instrument. It shall not be necessary in proving this Agreement to produce or account for more than one of those counterparts. Section 9.6 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 {H1444289.3 } -49- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' or employee of Dublin or OPT other than his or her official capacity, and neither the members of the legislative body of Dublin nor any official executing this Agreement shall be liable personally under this Agreement or be subject to any personal liability or accountability by reason of the execution thereof or by reason of the covenants, obligations or agreements of Dublin and OPT contained in this Agreement. Section 9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio or applicable federal law. All claims, counterclaims, disputes and other matters in question between Dublin, its agents and employees, and OPT, 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 9.8 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. Any process, pleadings, notice of other papers served upon the Parties shall be sent by registered or certified mail at their respective Notice Address, or to such other address or addresses as may be furnished by one party to the other. {H1444289.3 } -50- * ~ City Druft of Febrrcury 12, 2/109 -For Discression Purposes Only * * * ~' Section 9.9 Recitals. The Parties acknowledge and agree that the facts and circumstances as de scribed in the Recitals hereto are an integral part of this Agreement and as such are incorporated herein by reference. Section 9.10 Indemnification. OPT hereby agrees to indemnify and hold Dublin harmless and agrees to defend Dublin from and against any and all claims, losses, damages, demands, liabilities, obligations, penalties, actions or rights of action, judgments, suits, costs, expenses, or disbursements of any kind or nature which may arise as a result of (a) breach of this Agreement by OPT, (b) anything done or omitted to be done through the negligence or intentional acts of OPT or of its staff, agents or employees, or (c) any action by OPT or any of its officers, directors, employees, or agents, which action requires the approval of Dublin and such has not been obtained. Dublin shall promptly give OPT written notice, at the address proj~ided in this Agreement, of any and all claims, losses, damages, demands, liabilities, obligations, penalties, actions or rights of action, judgments, suits, costs, expenses, or disbursements of any kind or nature for which Dublin seeks indemnification. The obligation of OPT pursuant to this Section 9.10 shall survive termination ofthis Agreement without limitation. Section 9.11 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. {H1444289.3 } -51- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' Section 9.12 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 1X -SIGNATURE PAGES TO FOLLOW {H1444289.3 } -52- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' IN WITNESS WxEIZEOF, the Parties have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as ofthe date first written above. CITY OF DUBLIN, ©HIO Approved as to Form: By: Printed: Stephen J. Smith Title: Director of Law STATE OF OHIO ) SS: COUNTY OF FRANKLIN ) By: Printed: Terry D. Foegler Title: City Manager By: Printed: Marsha I. Grigsby Title: Director of Finance On this day of March, 2449, before me a Notary Public personally appeared Terry D. Foegler and Marsha I. Grigsby, the authorized representatives of the City of Dublin, Ohio, and acknowledged the execution of the foregoing instrument, and that the same is their voluntary act and deed on behalf of the City of Dublin, Ohio and the voluntary act and deed of the City of Dublin, Ohio. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the date and year aforesaid. Notary Public {H1444289.3 } -53- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' IN WITNESS WxEIZEOF, the Parties have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as ofthe date first written above. OHIO PROTON THERAPY, LLC STATE OF OHIO ) SS: COUNTY OF FRANKLIN ) By: Printed: Title: On this day of March, 2449, before me a Notary Public personally appeared the authorized representatives of Ohio Proton Therapy, LLC, and acknowledged the execution of the foregoing instrument, and that the same is his voluntary act and deed on behalf of Ohio Proton Therapy, LLC and the voluntary act and deed of Ohio Proton Therapy, LLC. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the date and year aforesaid. Notary Public {H1444289.3 } -54- ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' FISCAL OFFICER' S CERTIFICATE The undersigned, Director of Finance of the City of Dublin, Ohio under the foregoing Agreement, certifies hereby that the moneys required to meet the obligations of the City during the year 2009 under the foregoing Agreement have been appropriated la~~~fully 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: March , 2009 Marsha I. Grigsby Director of Finance City of Dublin, Ohio {H7444289.3 } -55- * * * City Draft of Febrrtary 12, 2009 -For Discussion Purposes only EXHIBIT LIST EXHIBIT A-1 Depiction of Property EXHIBIT A-2 Central Ohio Innovation Center EXHIBIT A-3 Depiction of Proton Therapy Campus (including Proton Therapy Facility Site and Additional Development Site) EXHIBIT B Description and Depiction of Public Improvements EXHIBIT C Memorandum of Agreement EXHIBIT D Depiction of Soil Mounds EXHIBIT E Depiction of Flood Plain Fill EXHIBIT F Depiction of Water Tower Site EXHIBIT G Fiber Use Agreement {H1444289.3 } * * * City Draft of Febrrtary 12, 2009 -For Discussion Purposes only EXHIBIT A-1 DEPICTION OF PROPERTY {H1444289.3 } A-I ~ ~CMHDATA01 ~0£I~ECOPM£NTIPROJfCT120080299~OWC~80299 £XMB/T A-I.DWC<fXN/B/T N - 2 XRffS 80299XBS, 80299XPR (CONCEPT JJ -LAST SAVFD BY BHfSC£P (1/29/2009 3.41:38 PMJ -PLOTTED BY BNESC£P (1/29/2009 3.41:38 PMJ * * * City Draft of Febrrtary 12, 2009 -For Discussion Purposes only EXHIBIT A-2 CENTRAL OHIO INNOVATION CENTER {H1444289.3 }A-2 1000' 0 1000' 700D' ~`° ~~ , -;~, "*`~ _' ~ T„ _ r, ~ GRAPHIC SCALE ~ ~ ~-- ~' z 2~ ~ .'; F ~ ' ~ ~ ~ • ~ ~~ ~ ~ ~; „~ ,;; >~ , . ..~j ~ ~ ~-~~~~ i. ~~ - I ~ Q i ~,;t l.. ~ rv ~ S ~ ~ . '~fi,.~,=~- .. ~' ~ ; r ~ - • ...-. _ - ~ 1 . - . ~1~ ,' :r, R~ ~ ~. ..N.-~- s, ~ ~s~ ,_, E PROPERLY" ' `~ 1. ~ ',,`'b' , a ~ ~~ }~; can. ~.ii +a :. Y ~7 4_3., ~~' a~i ~„~ ~~~.~~.:.~ 91.61 AG ..~- ~ti~ ~~31. ~fiw~ ~ < ~f~ ~~ ,.~~ ~ ~ -~ ~w~.-Y w ~ i ~ ~ ~~`s ~~ c a~ao ~~ ~ ~~.: .~ ~ _ o arnew c~ ~~ i~f A~ ~ ~ ~~ .}, ate, ~ ~~ ~ ~` ~ ~ ~ ~ ~ ~ ~ s i t w.~ `¢ ~ `~ .s_~ .~-•~~, R/NGS RLWD cm of oua~iN.aHio ~1~'R- ; . ~ ,~, ~ ~ ~~~ OHIO PROTON THERAPY CAMPUS ~ v ~ ~ ~ r'.r~~~~~~ ` ~ rt ~, ' ~ , ~ %~ j ,w~ °~. ~~',~; ~ CENTRAL OHIO INNOVATION CENTER ,~ j'. .~~^ -' w.erw..Ni. -,~; ~ , _ [~ ~ ' ~ ~ ~rvR'^s„°° ~.,, fib: January,2009 ~r:e:``11.°~a$~ ._t~~4 ~... ..u:#~ ~ ~4_..~ a ~, ~ ,hi* .lit sr~ r'=~ooo~ Evarq.Mxhvrat, Ham6leion & ~Itan, hc. Er~lrrxrs ~ Suveyors • ?lanrras •Sclenhsn NewAlpay xwd, Go'u~ux Ox d3G6a Jahxa 2008-0299 rr~s;ar.•sasx ~aisr+raa~ M c ~ x x r• ~ a '~7GL1Y0739~@NG~607.A9 FAxI@7 A-7.OIY@<Exrn@IT A7> - NO xRffS - Il57 SAUEO @r @MSGfP /9/3@/70@3 9:17.39 AuJ - P(07IE0 @Y @HfSGfP /1/.ID/PC@9 9:77~f0 AI/] * * * City Draft of Febrrtary 12, 2009 -For Discussion Purposes only EXHIBIT A-3 DEPICTION OF PROTON THERAPY CAMPUS {H1444289.3 }A-3 400' O 400' 800' GRAPHIC SCALE (lN FEET) I ~~`~"~ ~'~~i ~; ~, i_--~~ ,~, ~, UNION ~ ~ ~ ~ COUNTY a ~ ~~ s ~' ~~ i % ~~s i 1 rW1 I~{N'li/ JIIL ~ Net f4. ff Ac. 1 ~%'~ ~~ 1 i ~ ~ ~ - \ ~~ '•` ' ~ 1 1 , ; s I ~. ~ I 1 ~ ` I I `'~., 2 ~.~ I I I ~'~ ~ t 4 1 - - - ~ ~\~~, o I ~~ ~ - ~ IIo Ex.PpST ~ ~~~ r ~ 1~ Il - - _ ~ .~~~. II >~~ I~ ~ -~ o ~`~~, ~'~ - ~ ~ __ ~~-,~ ~;,o~ m i I `~ # ~ s v ^ ~~~' ~~ 1 f - ,~ Q ~ ~ ~II ~,~ ~ ~s G~~ '`\ /Q I` ~ ~`y ~ ,, - ~\ t i I I A. 5 s ~ 1 1 I `ry\ o ~- \ s~ ~ ~ ~s ~~> ~.~? i ~ 1~ I ~ ,:~ ~ E ~ ~ ~ ~~ ~ ~ ~I ~ ~i`t ~ «~ ~ ,~ ~ II '`;'~ ~ h , 1 1 i ~, ~ ,~ ~. • I ~..._._.--... i ~ y. ~ ................~ ......~ ~ ~' ~~~ ®~, m i# ~~ x `\ ~ .-. ly~ ' ~ a~ ~ ~ r ,. ,1 C a~ ... ,, ~ w~ ~~ ~ ~ o tn~ t 1~ ~; ~ ~ f ,11 ~~ ~ s ~ ~ ~~ ~~ ~~ i ~ s ~ i ~o~~ I ~ t\ ~ FRAN ~ ~ ~ Ex.Pond ~ ,~ I ~ ~ KLIN COU ` ~~ ~ NTY s ~ - = 1 ~ -~ I I-I t ~` ~ ~ ~ I -, ~ ~ ~ r I UNION COUNT Q ~ ~ , ~ ~ FRANKLI l s ~ ~~ r ~I N COUNTY ~~ ~.~ 1 ~ III ~ I F 1 g, I ., ® ~ ~ ~~ 1 1 ~, I` l ~ 1 x 11 ~. ~, ~ ,. I ~ &.Pond / ,,,~, 1 ~ I 9 1 `.~~ ~ i I / I o ~, . ~ ~ "~ ~ .~ / ~ 1~ ~ I ~ I / ~ I _- ~=_~~ ~_~ i~'~ 1~'q1 _~„~ ~ I,p - ,~, ~~. i ~ ~~~~i s~.~ ,,~ /~ ~ - ~~-ll ~ ~~ I = ~_-~I ` = ~ ~ I - ~~~wpy --- `~ ~ 1 / _~_~ s _ _ ~ ~~ REROA ~~ ~ ~ ~ - 1 ru I / ARK DRIVE - - ~A\ ~ s _ _ . ~ FU , ~ / CITY OF DUBLIN, OHIO I I ~ .DUBLIN P _ s - SSIB I / Ex ..~. AV ~'' ~ - 0 PD ~ I 11 OHIO PROTON THERAPY CAMPUS -. ~ ^ ~ n --- 1 I I ~~,-~ , , EXHIBIT A-3 I~ ~ 1 ~ ~ oI J ~ <~ ~ ~1 ~ t o I 1~ ~ ~ -~ ~ ~ PROTON THERAPY CAMPUS L t I ~ II 1 ~ ~ 1 I ~ lIL _ I 1 1 11 ~ ~ ~ I PROTON THERAPY C4~NPUS - 9f.6f A~ -- I ~ s s /' - II ~ ~ ~ ~ ~ ~ > ~ 7 ~ _ dale. January, 2009 _ ~ - ~ - ~~ L~ i , - ~ ~ ~ J II 1 1~ ~~ ~-s Scale: 1" = 400' - _ ~ ~ -`~ - ~- ~ Evans, Mechwart, Hambleton & Tilton, Inc. _J _ o - ~ ~ _ ~ 1 ~ , 5 ~ ~ Engineers • Surveyors • Planners ~ Scientists - - ~ ~ ~ l ~ ~ ~ ~ -'~ ~ ~ 5500 New Alban Road, Columbus, OH 43054 Job No: 200$-0299 a L / ~ Y ~ 1 1 ~ ~ ll /~ ,~ ~ ~ Phone: 614.775.4500 Fax: 614.775.4800 ~~ v ~ ~ i~~~ ~ _ ~ ~ M C M x x v i Sheet: '~ of '~ ~ / -~ s V i- I ~CMHD4TA0110£I~ELOPM£NTIPROJfCT12008029910WC180299 £XMB/T A-3DWC<fXN/B/T A3> - 2 XR£FS:• 80299XBS, 80299XPR (CONCEPT 3) - IAST S4Y£D BY BN£SLfP [1/29/2009 3.42.•27 PMJ - PLOTTfO BY BH£SC£P [1/29/2009 J.•42.•28 PMJ * * * City Draft of Febrrtary 12, 2009 -For Discussion Purposes only EXHIBIT B DESCRIPTION OF PUBLIC IMPROVEMENTS Phase I Public Improvements: The Phase I Public Improvements shall include approximately $60 million of public infrastructure improvements including but not limited to: • the following public infrastructure improvements identified in Dublin's 2009- 2013 Capital Improvement Plan as approved by the Dublin City Council on September 2, 2008 • the reconstruction of the U. S. Route 33 /Post Road Interchange, • the relocation of Industrial Parkway, and • the construction of a boulevard treatment along State Route 161 /Post Road from just east of Hyland Croy Road to just west of the relocated Industrial Parkway, • the construction of necessary public road systems serving the Proton Therapy Campus and the Property including, at a minimum, all ofthe public roads that are identified as "Public Roads" in this EXHIBIT B, and • the removal of existing Eiterman Road, the extinguishment of all utility or other easements attaching thereto, and the elimination of any and all existing private drives connecting to that roadway. Phase II and Future Phase Public Improvements: The Phase II and Future Phase Public Improvements shall include, but not be limited to, any other road improvements necessary to facilitate and improve traffic flow proximate to the Proton Therapy Campus which Dublin, with input from OPT, may in Dublin's sole discretion, determine are necessary for the development of the Proton Therapy Campus and the Property. {H1444289.3 }B- 1 * * * City Draft of Febrrtary 12, 2009 -For Discussion Purposes only EXHIBIT B DEPICTION OF PUBLIC IMPROVEMENTS {H1444289.3 }B_2 eao' o soo' ear GRAPH/C SCALE (lN FEET) I ~' ~ I ~~ JAI I I L ~'I~ I I I ~lil L III I~ ~lif ~l~ll~~ -~I II ~~~_~I~III ~,~II -1 ~-~~i" ~- c- ~~~ y, `=fir ~ .. ,,=' ,aft ~ ~ ~ _, ~ .. _ ~r '~ i~ 1 ~ ~~ \\ HEL DRIVE NORTH ~ ~Ex.FlS ~ 1 + / ~-~-~ 1 L„ia4Y 6 /G;RF'J PEARS '' 'q~l' I - ~Jj' \ ~~ ?,~- ;;-c~s~~c~ ~/V~~ ~ ~ ~ v~~ y. 9.~ ~ 1 , Lj A `~ ~ ,,Q 1 . r ~y 6 R o ~ J[L ~b:~~ ~> ' -~Y Q ~, u P w~ A tV.~ ~l~ e\ ~~ Y.o . ~ ~' ~ ~ r ~ n ~ r 1 Y . ~~ 1' ~' \ r~ I~ IkRv~IE i nSSv~; iES L /u A/il ~! ,,;,,, ~00310~00; 2~38„~ 1 ~. PUBLIC R PUBLIC PEii/iYJ(4~ L/u Pr+RVEL ~ `:"":>. L/4-{/VVQIQ ~ / ~ I I \ II - / N I ~ \\ ~ / I I ~ d0 Permanent Easement / Ex.Pond I - '~ / ) ~ ~ 2f Sai _ _ - 20fiem om / ~~ I d ~ _ - P ry - I _~. _ - - _ _ sa,- ~ Construction Easement sss x I ~, , _ ..~ ., •~ / k - , I -~ \ ~ \s\ - ~ I 1 n lOfiempomry ~ ~~ ~ I ~o o ~ ~ ~ O Y ^I z I ~ Construction Easement ail ~ // `~ ~ ~~ 1 ,~ 7 ~ -- / I 114 ~ ~ "J ~ •~ W Ill - - A /~l/~pI AryA M M I ~ \ \ \ ~ _ ,SyEL DRIVES 11 0 VlCC/4.EA1!IIYV rYV. _ _ _ =Ex.FI - - ^\ D P~• 2T4-CCC;39 `~ AAA \ \ ~ 2.wnG 21 "fan I - \ 11 ~ co-8f74)~= ~ n \ \ / I - ~Y I. al ~ ~~ ~~ a PAR'S ~• ~ M~ I I _ ~ o I , O ~ .~ \ \ / I ~ ~~ I O MIA ~ •« I I ~ vVAYm'~Rv^f - ~ ~ I - I ~ II ~ ~~ II 1 1 -_ A ~~ - ~ \\ \ I _ < ~ _ _ _ I .. P„RK _ ~ ~ , I 11 A , - I~ \\ \ 1 ~,~ , / / ~1 =PHASE 1 PHASE 2 _ - -1 r I -- _~ 1 ,- __-- ~ Dw I _ _ ~ ~ _ ~ ROA ~ ~ ~ / ~ 1 _ -_ ~ - ~ -~ , ~ 1URE _ I I DRIVE - \\ ~ l _ FU , ~ / CITY OF DUBLIN, OHIO I I / DUBLIN PARK _ ~ s - - - BI,E ~Ex. _ ..~. \\"' P - POSE , ~ I 11 , ~ ~ OHIO PROTON THERAPY CAMPUS 1 _ ,, I _ L I ~ _ ^ ~ n i / -- - - 1 I I I 1~~ = 1 EXHIBIT B Z r1nII ~ \ AANY M AA/l/ ~lt /` S LLLE LA/YL VA/YI I ~ 1 0o I ~ 1 < ~ ~ s- . ,,- PUBLIC IMPROVEMENTS 1 ACCESS LOCATIONS 1 ~ ~ ~,~-~ass~s ~ ( II ~ I ~, 1 I 1 l1 I ~..6.,~ 1 1 t 1 ~ 1 I I ~ s _ I II ~ ~ 1 ~, ~ 1 = dale: January, 2009 IL I -- ~ 1 i I - 1 ~ ~ _ . 1 ~, . I 1 ~ ~ I_ I 1 ~ _~ ~,C ~~)~ \ ~ -~ i ~ I Scale: 1" = 400' - 1 `~ - ~ / Evans, Mechwart, Hambleton & Tilton, Inc. _J ~ - ~ - _ _ ~ ~ 1 ~ , ~ ~ 5 ~ ~ Engineers • Surveyors • Planners • Scientists - J 1 ~ ~ 1 / -'~ ~ ~ 5500 New Alban Road, Columbus, OH 43054 Job No: 2008-0299 n Q l ~ ~/ ~ Y ~ ~ \ ~' ~~ // ,~ ~ ~ Phone: eia.ns.asoo ra»: 6iA.TTS.aeoo \ ~ v U ( // ~ ~ - ~ M C M X X V I Sheet: '~ of '~ 1 1 1 ~ s / _ v~ 1 ~ ~- ~ ~CMHWiTA01 ~0£I~ECOPM£NTIPROJfCT~20080299~OWC~80299 £XMB/T BDIYG<£XN/B/T B> - 2 XREFS.• 80299X85; 80299XPR (CONCEPT 3) -LAST S4VED BY BNfS1£P (2/3/2009 11:16.14 AMJ -PLOTTED BY BNfSL£P (2/3/2009 11:16.14 AMJ * * * * Draft of Febrrcrrry 12, 2009 -For Discussion Purposes o,~ly * * * * EXHIBIT C MEMORANDUM OF AGREEMENT 11~ZE11~ZOR~NDUM OF ECONOMIC DEVELOPMENT AGREEIIIENT THIS MEMORANDUM OF ECONOMIC DEVELOPMENT AGREEMENT (this "Memorandum") is made and entered into as of March , 2009, between the City of Dublin, Ohio ("Dublin"), a municipal corporation and political subdivision organized and existing under its Charter and the laws of the State of Ohio, having an address at 5200 Emerald Parkway, Dublin, Ohio 43017, and Ohio Proton Therapy, LLC ("OPT" and collectively with Dublin, the "Parties"), an Ohio limited liability company organized and existing under the laws of the State of Ohio, having an address at 261 West Johnstown Road, Columbus, Ohio 43230. RECITALS: A. Dublin and OPT have entered into that certain Economic Development Agreement dated March , 2009 (the "Agreement"), whereby Dublin, in consideration of OPT's agreement to develop a proton cancer treatment facility in Dublin together with related support and other facilities, agreed to provide certain economic incentives to OPT to facilitate that development, including but not limited to the conveyance of certain real property (the "Property," as depicted on Attachment A attached hereto and incorporated herein by reference) for the location of that facility. B. Dublin and OPT desire to enter into and record this Memorandum for the purpose of providing notice of certain provisions of the Agreement and their applicability to the Property. AGREEMENTS: In consideration of the foregoing recitals, specific reference is hereby made to the following provisions of the Agreement (with capitalized terms not defined herein having the respective meanings assigned to them in the Agreement): 1. Pursuant to the Agreement, the Property Deed conveying the Property from Dublin to OPT will be held in an Escrow which will provide for the automatic reconveyance of title to the Property to Dublin if OPT fails to satisfy certain requirements (referred to in the Agreement as the "Initial Escrow Release Requirements" and the "Escrow Release Requirements") by December 31, 2009, in the case of the Initial Escrow Release Requirements, and by December 31, 2010, in the case ofthe Escrow Release Requirements. {H1444289.3 }C- 1 * * * * Draft of Febrrcrrry 12, 2009 -For Discussion Purposes o,~ly * * * * 2. Also pursuant to the Agreement, in the event that the Proton Therapy Facility is not fully constructed and operational by December 31, 2017, title to any portion of the Additional Development Site which has not been otherwise released as provided in the Agreement (i.e., upon receipt and approval by Dublin of an executed contract for the development of a portion of the Additional Development Site) will revert to Dublin. 3. The Agreement provides that, subject to certain conditions, the City will finance and construct various Public Improvements which will support the development of the Property. 4. The Agreement provides that a tax increment financing will be established on the Property to allow Dublin to finance the construction and improvement of certain Public Improvements that will benefit the Property. If that tax increment financing is established all private development on the Property will be exempt from real property taxation for a period of years. The current and future owners of the Property will be required to make annual service payments in lieu of real property tax payments with respect to that private development, and a portion of those service payments will be paid to the City to fund the Public Improvements. 5. The Agreement also provides that if aNon-Profit Corporation hereafter owns or leases any portion of the Property, OPT, on behalf of itself and any successors to OPT or successors in interest to the Property, acknowledges and agrees that the then current owner of any portion of the Property may not file an application to exempt such portion of the Property from real property taxation for so long as Dublin is entitled to collect Service Payments pursuant to the TIF Ordinance; provided, however, the Parties agree that any then current owner of the Property may, in cooperation with Dublin, sign and file an exemption application (as described in Section 7.6 of the Agreement) in coruiection with the TIF Exemption. This Memorandum contains only selected provisions of the Agreement, and reference is made to the text of the Agreement for the full terms, covenants and conditions. This Memorandum shall not in any way amend or supersede the terms, conditions or intent of the Agreement. A copy of the Agreement is on file at Dublin's offices, located at 5200 Emerald Parkway, Dublin, Ohio 43017, and is available for the inspection of interested persons during regular business hours. (SIGNATURE PAGES TO FOLLOW) {H1444289.3 }C- 1 * * * * Draft of FebruarJ~ 12, 2(109 -For Discressiori Purposes ©r~ly IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum of Economic Development Agreement as of the day and year tu•st written. CITY OF DUBLIN, ©HIO By: Printed: Terry D. Foegler Title: City Manager By: Printed: Marsha I. Grigsby Approved as to Form: By: Title: Director of Finance Printed: Stephen J. Smith Title: Director of Law STATE OF OHIO ) SS: COUNTY OF FRANKLIN ) On this day of March, 2449, before me a Notary Public personally appeared Terry D. Foegler and Marsha I. Grigsby, the authorized representatives of the City of Dublin, Ohio, and acknowledged the execution of the foregoing instrument, and that the same is their voluntary act and deed on behalf of the City of Dublin, Ohio and the voluntary act and deed of the City of Dublin, Ohio. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the date and year aforesaid. Notary Public {H1444289.3 }C-2 * * * * Draft of FebruarJ~ 12, 2(109 -For Discressiori Purposes ©r~ly IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum of Economic Development Agreement as of the day and year tu•st written. OHIO PROTON THERAPY, LLC By: Printed: Title: STATE OF OHIO ) SS: COUNTY OF FRANKLIN ) On this day of March, 2009, before me a Notary Public personally appeared the authorized representatives of Ohio Proton Therapy, LLC, and acknowledged the execution of the foregoing instrument, and that the same is his voluntary act and deed on behalf of Ohio Proton Therapy, LLC and the voluntary act and deed of Ohio Proton Therapy, LLC. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the date and year aforesaid. Notary Public This instrument was prepared by: Christopher J. Franzmann, Esq. Squire, Sanders & Dempsey L.L.P. 2000 Huntington Center, 41 South High Street Columbus, Ohio 43215 (614) 365-2737 {H1444289.3 }C-3 * * * * Draft of Februar~~ 12, 2(109 -For Discressiori Purposes ©r~ly ATTACHMENT A DEPICTION OF THE PROPERTY {H1444289.3 }C_4 * * * * Draft of Febrrcrrry 12, 2009 -For Discussion Purposes o,~ly * * * * EXHIBIT D DEPICTION OF SOIL MOUNDS {H1444289.3 }D' I 1 ~ 1 11I~ 1 ~ ~ ii i~ ~,i - ii i i,i i I1 i i m~li ~~,i °i i - Dili ~i,i _~ ~i i o~li ~--~ i i i ~ 1i "1' ~,i ~~ ii ~~ I III - 4 "1 ~~~ ~ 11 ~ ~ 1\1 ~ ~ \ ~\ ~ ~ I \\ \~ -~ `', , ~, = Approximate Limits of Existin Soil Stock ile 9 P \\ CITY OF DUBLIN, OHIO OHIO PROTON THERAPY CAMPUS EXHIBIT D SOIL MOUNDS date: January, 2009 Scale: 1" = 200' Evans, Mechwart, Hambleton & Tilton, Inc. Engineers • Surveyors • Planners ~ Scientists 5500 New Albany Road, Columbus, OH 43054 Job No: 2008-0299 Phone: 614.775.4500 Fax: 614.775.4800 M C M x x v i Sheet: '~ of '~ ~~CMHA4TA01~0£I~ELOPM£NTIPROJfCT~20080299~OWC~80299 £XMB/T O.DIYG<£XN/B/T D> - 2 XREFS.• 80299X85; 80299XPR (CONCEPT 3) - LIST S4VED BY BHfS1£P (1/29/2009 3.•44.•02 PMJ - PLOTTED BY BNESCfP [1/29/2009 3.•44.•02 PMJ * * * * Draft of Febrrcrrry 12, 2009 -For Discussion Purposes o,~ly * * * * EXHIBIT E DEPICTION OF FLOOD PLAIN FILL {H7444289.3 }E' I ~ ~CMHWiTA01 ~0£I~ELOPM£NTIPROJfCT~20080299~OWC~80299 fXMB/T f.OWC<IXN/B/T f> - 2 XREFS• 80299XBS, 80299XPR (CONCEPT 3) -(AST 541£0 BY BN£SC£P [2/3/2009 10.•39.•30 AMJ - PLO]7f0 BY BN£SC£P [2/3/2009 10.•39:31 AMJ * * * * Draft of Febrrcrrry 12, 2009 -For Discussion Purposes o,~ly * * * * EXHIBIT F DEPICTION OF WATER TOWER SITE {H1444289.3 }F- 1 FRANKLIN COU ~ 3~® ~ Ex.Pond : ~6 ,.~' N TY ~ ''~, , ~,~ ~ ~ ' ~ ~ ~ ,® ® ~ ~ ~ ...~ ~ L - .~~. ~ ~ ~ ~~~ ~ ~ ~ ~w ~ ~ ~ A ..w^' ~ I .~ ~ f ® ~ ® ~ ~ ~ ~ ~ -- -- I ~ ~ ~ ~ ~ ~~ Ex. t '' I ~ { ~ 4 Bld . .?' 9 ® ~ ~: I ® ~® t ~®®®~ ~ ~ F ~ ~ ~~f ~. ~ ~... ~ Ex•Pond ,{ ~ ~ ~ ~,, ~~% ~ ~ ,~~ ~~ ~ ~ ~ ~-~ ~ ,~~ ~ ~ / ,t o ~I ~ ~ ~ / ~ -~ ~~ ~ ~ o ~I: ~ ~ r '~ ~ ~ ~ ~ ~ ~ ~~ ~, ~ ~~ ~ ~~ ~~'' ~ ~ i~ ~~' CITY OF DUBLIN OHIO ~ ~I ~ , ~~~"~"~~~ OHIO PROTON THERAPY CAMPUS ~.,m....~~~~~~ ~ ~ EXHIBIT F ... ~~ - ~ -~ ~ WATER TOWER SITE ... ,~ V,... ~ " - ~ ,~ ,,,~ ~.~- ,~ dale: January, 2009 i ~` Scale: " _ _ _ '"'~ "~" '~ ~ Evans, Mechwart, Hambleton & Tilton, Inc. 1 200' Engineers • Surveyors • Planners ~ Scientists 5500 New Albany Road, Columbus, OH 43054 Job No: 2008-0299 I Phone: 614.775.4500 Fax: 614.775.4800 y 1 ~ M C M X X V i Sheet. '~ of '~ ~~CMHA4TA01~0£I~ECOPM£NTIPROJfCT~20080299~OWC~80299 £XMB/T F.OWC<EXfflB/T F> - 2 XRfFS.• 80299XBS, 80299XPR (CONCEPT 3) -LAST S4VED BY BHfSLfP [1/29/2009 3.•46.28 PMJ - PCOT7E0 BY BHESCEP [1/29/2009 3.•46:29 PMJ ~" * * City Draft of Febrrcary 12, 2009 -For Discression Prtrposes Only * * * ~' EXHIBIT G FIBER USE AGREEMENT {H1444289.3 }G' I EXHIBIT G CITY OF DUBLIN, OHIO OPTICAL FIBER USE AGREEMENT THIS OPTICAL FIBER USE AGREEMENT (hereinafter referred to as the "Agreement") made and entered into as of the day of , 2009, between the City of Dublin, Ohio, an Ohio municipal corporation (hereinafter referred to as the "Owner"), having an office at 5200 Emerald Parkway, Dublin, Ohio 43017-1006, and Ohio Proton Therapy, LLC, an Ohio limited liability company, having an office at 261 West Johnstown Road, Columbus, Ohio 43230 (hereinafter referred to as "User"), and which are sometimes referred to individually as "Party" and collectively as "Parties." WITNESSETH: WHEREAS, the Owner has an existing optical fiber system (hereinafter referred to as the "Fiber System") throughout the City of Dublin, Ohio and the greater Columbus, Ohio metropolitan area; and WHEREAS, the Owner has excess fibers in the Fiber System and is willing, from time to time, to provide such fibers to User and to grant User an Indefeasible Right of Use or IRU (hereinafter referred to as "IRU") in and to such fibers for the purpose of providing telecommunications, video, data, and/or information services; and WHEREAS, in connection with the grant to User of an IRU in and to such fibers, the Owner is willing to allow User to use certain other property owned by the Owner, including, but not limited to, innerduct, conduit, building entrance facilities and associated appurtenances; and WHEREAS, the Parties have executed or will execute an Economic Development Agreement relating to Central Ohio Innovation Center (hereafter referred to as the "COIC"); and WHEREAS, User has obtained or will obtain any and all permits or approvals required to engage in its intended purpose and for the use and occupancy of space in the Rights of Way as defined in Chapter 98 of the Codified Ordinances of the City of Dublin and further agrees to adhere to any and all requirements of federal, state and local laws, rules or regulations (specifically inclusive of, but not limited to, Chapter 98 of the Codified Ordinances of the City of Dublin, Ohio); and WHEREAS, the Parties may in the future agree to enter into additional separate agreement(s) for additional and/or separate optical fiber uses which will incorporate the covenants and agreements of this Agreement and which will also set forth the terms and provisions unique to each additional or different specific project. NOW, THEREFORE, pursuant to the terms of any Right of Way occupancy requirement and/or Construction Permit required and defined by Chapter 98 of the Codified Ordinances of the {Hiaa~z3o i COI-1328316v2 City of Dublin, Ohio, for and in consideration of the mutual covenants and agreements set forth in this Agreement, the Parties hereto do hereby agree as follows: DEFINITIONS. 1.1 The following terms, whether in the singular or in the plural, when used in this Agreement and initially capitalized, shall have the meaning specified: a. Agreement: This Optical Fiber Use Agreement between the Owner and User which identifies the specific optical fiber strands and facilities to be provided to User by Owner and which sets forth the associated fees/compensation, terms and conditions for User's use of such optical fiber strands and facilities. b. Fiber System: The Ninety-Six (96) optical fiber strands, innerduct, conduit, building entrance facilities, associated appurtenances, and capacity owned by the Owner and located throughout the Rights of Way of the City of Dublin, Ohio and the greater Columbus, Ohio metropolitan area that is detailed in Exhibit A attached hereto. c. User System: The optical fiber strands, innerduct, conduit, building entrance facilities and associated appurtenances in the Fiber System, to be provided to User under the terms of this Agreement and the associated rights to access and use such fiber strands at demarcation points as specified herein all as described herein and detailed in Exhibit A attached hereto. 2. GRANT 2.1 The Owner hereby grants to User an IRU of the following Owner Fiber System components: a. Two (2) strands of fiber optic cable in Owner's Fiber System, as detailed herein and in Exhibit A attached hereto. These individual Owner Fiber System components collectively shall comprise the User System as defined in Section 1.1(c) of this Agreement. Owner shall assist User in obtaining the Permits necessary to have access to the Rights of Way and other portions of the Fiber System, if any, as are necessary to provide User with the use of such strands of fiber optic cable. 3. TERM. 3.1 Unless sooner terminated in accordance with the terms of this Agreement, the term of this Agreement is fifteen (15) years (hereinafter referred to as the "Term"), commencing on the date that User first commences use of Owner's Fiber System (hereinafter referred to as the "Commencement Date"), but in no event shall the Term exceed seventeen years from the date of this Agreement. (H1447230.1 ( - 2 - COI-1328316v2 4. CONSIDERATION. 4.1 As consideration for, as inducement to, and as a required condition of Owner granting User the specific rights to use portions of Owner's Fiber System (the User System) as described herein, the User hereby agrees: a. To comply with all of the material terms of the EDA; and b. That any failure of User to satisfy the material terms and conditions of the EDA shall be considered a material breach of this Agreement and Owner may then terminate this Agreement upon giving thirty (30) days written notice to User. 5. OWNER'S OBLIGATIONS. 5.1 Owner shall: a. Provide the User System for User's use in accordance with the terms of this Agreement. b. Provide and/or control maintenance and repair functions on the User System and all facilities in the Fiber System through which the User System passes, including, but not limited to, conduit, innerduct, poles and equipment. c. Maintain the User System to the specifications provided in Exhibit B attached hereto. 6. USER OBLIGATIONS. 6.1 User shall: a. Provide and pay for all lateral connectivity from all necessary termination points of User's proprietary fiber and equipment to all the necessary demarcation points of Owner's Fiber System. b. Pay for any building or external network service connection and disconnection charges for each building service added or deleted before, during or after the initial establishment and cutover of a User System fiber segment. User shall be responsible for any and all costs associated with lateral connectivity to the Fiber System and shall pay for the costs of all splicing, distribution segment, service connections, and any ring or concentrator operations; provided, however, to the extent User is required to use Owner or Owner's appointed agent to perform such connection and disconnection services, neither Owner nor Owner's appointed agent, as the case may be, shall be entitled to charge fees for such services that are in excess of the market fees that an independent third party qualified to perform such services would charge User to perform such services. c. Pay all necessary costs if the User requires installation of a new distribution ring or concentrator in an already established Fiber System or User System ~H1447230 ~ , - 3 - COI-1328316v2 distribution segment, rearrangement of existing service connections, and rearrangement of a ring or concentrator operation. Owner's management agent's current charges and application rules are identified in Exhibit C attached hereto. d. Agree not to use the User System to provide services to any non-related party without the prior written consent of the Owner. User agrees not to use the User System to provide services to non-related parties in conjunction with a third party without the prior written consent of the Owner. User also agrees that it shall not provide for or allow any non-related party to use the User System or in any way sublease or subdivide the User System and provide services to non-related or third parties without the prior written consent of the Owner; provided, however, notwithstanding anything to the contrary in this Agreement, upon the request of User, Owner shall allow any non-related party that is an occupant of the Central Ohio Innovation Center (as defined in the EDA) to use such portion of the User System as may be approved by User provided that such occupant executes and delivers to Owner an agreement containing indemnity provisions substantially similar to the indemnities in this Agreement. User further agrees to continually meet the requirements of this Agreement. In the event any breach of the provisions contained in this Section continues beyond the cure period provided in Section 12.1 of this Agreement, the Owner shall have the right to terminate this Agreement upon giving thirty (30) days written notice to User. e. Agree to pay any and all reasonable and necessary maintenance costs as may be required to be paid by User pursuant to the requirements of Section 8.1(a-c) below. 7. JOINT OBLIGATIONS. 7.1 The Owner and User jointly: a. Agree that, prior to the Commencement Date, the Parties will agree upon an Acceptance Plan for User's initial activation and the "go-live" of User's System. Acceptance Plan shall mean the engineering procedures necessary to ensure that the Fiber System meets the technical specifications in Exhibit B. b. Shall provide each other atwenty-four (24) hour a day, three hundred sixty-five (365) days per year, coordination telephone number. 8. MAINTENANCE. 8.1 All maintenance and repair functions on the Fiber System and all facilities through which the Fiber System passes, including, but not limited to, conduit, innerduct, poles, and equipment shall be performed by or at the direction of the Owner or Owner's appointed agent with reasonable notice to User. Except as otherwise may be agreed to by the Parties or as provided in this Agreement, User is prohibited from performing any maintenance or repair on the Fiber System or User System. User shall have the right to have an employee or representative available to assist the Owner in any maintenance or {H1447230.1 I - 4 - COI-1328316v2 repair of the User System. The Owner shall maintain the User System in accordance with the technical specifications in Exhibit B attached hereto. a. Regular Maintenance: Owner may from time to time undertake and provide for regular maintenance activities in an attempt to keep the Fiber System and/or User System in good working order and repair so that it performs to a standard equal to that which is then commonly believed to be acceptable for systems of similar construction, location, use and type. Such regular maintenance shall be performed at the Owner's sole cost. b. Scheduled Maintenance: The Owner from time to time may schedule and perform specific periodic maintenance ("Scheduled Maintenance") to protect the integrity of the Fiber System and/or User System and perform changes or modifications to the Fiber System and/or User System (including but not limited to fiber slicing, etc.) at the User's request. Such User requested Scheduled Maintenance shall be performed at the User's sole cost and expense. User may request such Scheduled Maintenance by delivering to the Owner a statement of work detailing the service User desires to be performed, including the time schedule for such services. Upon receipt of such a statement of work, the Owner will provide an estimate of the price and timing of such Scheduled Maintenance. Following User's acceptance of such estimate, the Owner will schedule and have such Scheduled Maintenance performed. The Owner will have such Scheduled Maintenance performed on atime-and-materials basis at the standard rates in then effect at the time services are performed. Rates in effect will be those identified in Exhibit C with the understanding that such rates are subject to change at any time. c. Emergency Maintenance: The Owner may undertake and provide for emergency maintenance and repair activities ("Emergency Maintenance") for the Fiber System and/or User System. Where necessary, the Owner shall attempt to respond to any failure, interruption or impairment in the operation of the User System within twenty-four (24) hours after receiving a report of any such failure, interruption or impairment. The Owner shall use its best efforts to perform maintenance and repair to correct any failure, interruption or impairment in the operation of the User System when reported by User in accordance with the procedures set forth in this Agreement. The costs and expenses associated with such Emergency Maintenance shall be apportioned between Owner and User in percentages equal to their respective interests of control (based on the terms of this Agreement) over the portions of the User System and/or Fiber System requiring such Emergency Maintenance. The Owner will have such Emergency Maintenance performed on a time-and-materials basis at the emergency maintenance rates then in effect at the time services are performed. 8.2 In the event the Owner, or others acting on the Owner's behalf, at any time during the Term of this Agreement, discontinues maintenance and/or repair of the User System, User, or others acting on User's behalf, shall have the right, but not the obligation, to thereafter provide for the previously Owner provided maintenance and repair of the User System, at the User's sole cost and expense. In the event of such discontinuance, the ~H1447230.1 ~ - 5 - COI-1328316v2 Owner shall obtain for User, or others acting on User's behalf, approval for adequate access to the Rights of Way in, on, across, along or through which the User System is located, for the purpose of permitting User, or others acting on User's behalf, to undertake such maintenance and repair of the User System. 8.3 In the event any failure, interruption or impairment adversely affects both the Owner's Fiber System and the User System, restoration of the User System shall at all times be subordinate to restoration of the Owner's Fiber System with special priority for Owner's public safety and municipal infrastructure functions carried over the Fiber System, unless otherwise agreed to in advance by the Parties. In such event or in the event the Owner is unable to provide timely repair service to the User System, the Owner may, following written request, permit User to make repairs to restore the User System as long as such restoration efforts do not interfere with the Owner's restoration activities. 8.4 Any User subcontractors or employees who undertake repair or maintenance work on the User System shall first be approved by the Owner to work on the Owner's Fiber System. Prior to User's undertaking Emergency Maintenance or entering an Owner's facility for repair, User shall first notify the Owner of the contemplated action and receive the Owner's concurrence decision, a decision that the Owner shall provide to User no later than twelve (12) hours from User's notification to Owner of contemplated action. When User undertakes Emergency Maintenance of the User System, User shall have an Owner employee or representative available to assist the User in any repair of the User System. 9. USE OF THE USER SYSTEM. 9.1 User shall have exclusive control over its provision of telecommunications, video, data, and/or information services. 9.2 User hereby certifies that it is authorized or will be authorized, where required, on the Commencement Date to provide telecommunications, video, data, and/or information services within the State of Ohio, the City of Dublin, Ohio and in such other jurisdictions as the User System may exist, and that such services can be provided on fiber optic cable systems such as the Fiber System owned and operated by the Owner. 9.3 User understands and acknowledges that its use of the Fiber System and User System are subject to all applicable local, state and federal laws, rules and regulations, as enacted, either currently or in the future, in the jurisdictions in which the Fiber System and User System are located. User represents and warrants that it shall operate on the Fiber System and User System subject to, and in accordance with, all applicable laws, rules and regulations and shall secure all permits, approvals, and authorizations from all such jursidictional entities as may be necessary. 10. INDEMNIFICATION. 10.1 The User undertakes and agrees to protect, indemnify, defend, and hold harmless the Owner and all of its elected officials, officers and employees, agents and volunteers from and against any and all suits and causes of action, claims, charges, damages, demands, judgments, civil fines, penalties, costs, attorneys fees and costs, expenses or losses of any SH1447230.1 } ~ 6 - COI-1328316v2 kind or nature whatsoever, for death, bodily injury or personal injury to any person, including User's employees and agents, or damage or destruction to any property of either Party, or third persons in any manner arising by reason of the negligent acts, errors, omissions or willful misconduct incident to the performance of this Agreement or use of the Fiber System on the part of the User, or the User's officers, agents, employees, or subcontractors, except for the active negligence or willful misconduct of the Owner, and its elected officials, officers, employees, agents and volunteers. User's indemnity requirements herein shall also specifically include all claims of intellectual property, copyright or trademark infringement made by third parties against Owner as a result of use of the Fiber System on the part of the User, or the User's officers, agents, employees or subcontractors. 10.2 User shall, where lawful, be required as a condition of this Agreement to make Columbus Fibernet, LLC, 1810 Arlingate Lane, Columbus, Ohio 43228, an Ohio limited liability company ("Fibernet"), a third party beneficiary of this Agreement for the limited purpose of User providing Seller specific indemnification as follows: User shall indemnify, protect, and defend Fibernet against, and hold Fibernet harmless from, any claims, losses, damages, costs or expenses including, without limitation, reasonable attorneys' fees, asserted against, incurred, or suffered by Fibernet resulting from any personal injury or property damage occurring in, on, or about the Fiber System or relating thereto from any cause whatsoever caused by User other than as a consequence of the acts or omissions of Fibernet, its agents, employees, or contractors. 11. INSURANCE. 11.1 During the Term of this Agreement, unless otherwise agreed to in writing by the authorized representatives, User shall, at its sole cost and expense, maintain in effect insurance coverage with limits not less than those set forth herein. 11.2 The User shall furnish the Owner's authorized representative within thirty (30) days after the Commencement Date of the Agreement with insurance endorsements reasonably acceptable to Owner's Director of Law. The endorsements shall be evidence that the policies providing coverage and limits of insurance are in full force and effect. 11.3 The User endorsements shall name the Owner and, to the extent User's insurer will agree, all of Owner's elected officials, officers and employees, agents and volunteers as additional insureds. The endorsements shall also contain a provision that the policy cannot be canceled or reduced in coverage or amount without first giving thirty (30) calendar days written notice thereof by registered mail to the Owner at the following address: City of Dublin Law Director 5200 Emerald Parkway Dublin, Ohio 43017-1006 ~H1447230.1 1 - 7 - COI-1328316v2 11.4 Such insurance shall not limit or qualify the obligations the User assumed under the Agreement. The Owner shall not by reason of its inclusion under these policies incur liability to the insurance carrier for payment of the premium for these policies. 11.5 Any insurance or other liability protection carried or possessed by the Owner, which may be applicable, shall be deemed to be excess insurance and the User's insurance is primary for all purposes despite any conflicting provision in the User's policies to the contrary. 11.6 User shall be responsible for all User contractors' or subcontractors' compliance with the insurance requirements. 11.7 Failure of the User to maintain such insurance, or to provide such endorsements to the Owner when due, shall be an event of default under the provisions of this Agreement. 11.8 The User shall obtain and maintain Commercial General Liability Insurance, including the following coverages: Product liability hazard of User's premises/operations (including explosion, collapse and underground coverages); independent contractors; products and completed operations (extending for one (1) year after the termination of this Agreement); blanket contractual liability (covering the liability assumed in this Agreement); personal injury (including death); and broad from property damage. Such coverage shall provide coverage for total limits actually arranged by the User but not less than Two Million Dollars and No Cents (US$2,000,000.00) combined single limit. Should the policy have an aggregate limit, such aggregate limit should not be less than double the combined single limit and be specific for this Agreement. Umbrella or Excess Liability coverages may be used to supplement primary coverages to meet the required limits. Evidence of such coverage shall be in a form acceptable to the Owner's Director of Law. 11.9 The User shall provide Workers' Compensation insurance covering all of the User's employees in accordance with the laws of the State of Ohio. 11.10 The User may use an Umbrella or Excess Liability coverage to net coverage limits specified in the Agreement. Evidence of Excess Liability shall be in a form acceptable to Owner's Director of Law. 11.11 The foregoing insurance requirements are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by the User under this Agreement. 12. DEFAULT. 12.1 Unless otherwise specified in this Agreement, User shall not be in default under this Agreement, or in breach of any provision hereof unless and until the Owner shall have given User written notice of a breach and User shall have failed to cure the same within thirty (30) days after receipt of a written notice; provided, however, that where such breach cannot reasonably be cured within such thirty (30) day period, if User shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing such breach shall be extended for a reasonable period of time to complete such curing. Upon the failure by User to timely cure any such breach after written notice { H 1447230.1 } - 8 - COI-1328316v2 thereof from the Owner, the Owner shall have the right to take such action as it may determine, in its sole discretion, to be necessary to cure the breach or terminate this Agreement or pursue such other remedies as may be provided at law or in equity. 12.2 Unless otherwise specified in this Agreement, the Owner shall not be in default under this Agreement or in breach of any provision hereof unless and until User shall have given the Owner written notice of such breach and the Owner shall have failed to cure the same within thirty (30) days after receipt of such written notice; provided, however, that where such breach cannot be reasonably be cured within such thirty (30) day period, if the Owner shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing such breach shall be extended for a reasonable period of time to complete such curing. Upon the failure by the Owner to timely cure any such breach after written notice thereof from User, User shall have the right to take such action as it may determine, in its sole discretion, to be necessary to cure the breach or terminate this Agreement or pursue other remedies as may be provided at law or in equity. 12.3 If User shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any present or future federal or state bankruptcy law or under any similar federal or state law, or shall be adjudicated a bankrupt or insolvent, or shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts generally as they become due, or if any involuntary petition proposing the adjudication of User, as a bankrupt or its reorganization under any present or future federal or state bankruptcy law or any similar federal or state law shall be filed in any court and such petition shall not be discharged or denied within ninety (90) days after the filing thereof, or if a receiver, trustee or liquidator of all or substantially all of the assets of User shall be appointed then the Owner may, at its sole option, immediately terminate this Agreement. 13. FORCE MAJEURE. 13.1 Neither Party shall be liable to the other for any failure of performance under this Agreement due to causes beyond its control (except for the fulfillment of payment obligations as set forth herein), including, but not limited to: acts of God, fire, flood, earthquake or other catastrophes; adverse weather conditions; material or facility shortages or unavailability not resulting from such Party's failure to timely place orders therefor; lack of transportation; national emergencies; insurrections; riots, wars; or strikes, lockouts, work stoppages or other labor difficulties. 14. ASSIGNMEN 14.1 This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors or assigns; provided, however, that no assignment hereof or sublease, assignment or licensing (hereinafter collectively referred to as a "Transfer") of any rights or obligations hereunder shall be valid for any purpose without the prior written consent of each Party hereto except as otherwise provided in this Agreement. ~H1447230.1 ~ - 9 - COI-1328316v2 15. WAIVER OF TERMS OR CONSENT TO BREACH. 15.1 No term or provision of this Agreement shall be waived and no breach excused, unless such waiver or consent shall be in writing and signed by a duly authorized officer of the Party claimed to have waived or consented to such breach. Any consent by either Party to, or waiver of, a breach by the other Party shall not constitute a waiver of or consent to any subsequent or different breach of this Agreement by the other Party, such failure to enforce shall not be considered a consent to or a waiver of said breach or any subsequent breach for any purpose whatsoever. 16. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY. 16.1 The relationship between User and the Owner shall not be that of partners or agents for one another and nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture or agency agreement between the Parties hereto. 17. NO THIRD-PARTY BENEFICIARIES. 17.1 This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns, and except for the requirements of Section 10.2 herein, shall not be construed as granting rights to any person or entity other than the Parties or imposing on either Party obligations to any person or entity other than a Party. 18. EFFECT OF SECTION HEADINGS. 18.1 Section headings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretations of text. 19. NOTICES. 19.1 Any written notice under this Agreement shall be deemed properly given if sent by registered or certified mail, postage prepaid, or by nationally recognized overnight delivery service or by facsimile to the address specified below, unless otherwise provided for in this Agreement: If to User to: Ohio Proton Therapy, LLC 261 West Johnstown Road Columbus, OH 43230 If to Owner to: City Manager City of Dublin, Ohio 5200 Emerald Parkway Dublin, OH 43017-1006 With a Copy to: Ben Hale, Jr. Smith & Hale LLC 37 W. Broad Street, Suite 725 Columbus, OH 43215 With a Copy to: Stephen J. Smith, Sr. Schottenstein Zox & Dunn Co., LPA 250 West Street Columbus, OH 43215 ~H1447230.1 E - 10 - COI-1328316v2 19.2 Either Party may, by written notice to the other Party, change the name or address of the person to receive notices pursuant to this Agreement. 20. SEVERABILITY. 20.1 In the event any term, covenant or condition of this Agreement, or the application of such term, covenant or condition, shall be held invalid as to any person or circumstance by any court having jurisdiction, all other terms, covenants and conditions of this Agreement and their application shall not be affected thereby, but shall remain in force and effect unless a court holds that the invalid term, covenant or condition is not separable from all other terms, covenants and conditions of this Agreement. 21. COMPLIANCE WITH LAW. Each Party hereto agrees that it will perform its respective rights and obligations hereunder in accordance with all applicable laws, rules and regulations. 22. GOVERNING LAW AND VENUE. This Agreement shall be interpreted in accordance with the Charter and Codified Ordinances of the City of Dublin, as amended, the laws of the State of Ohio, and all applicable federal laws, rules and regulations as if this Agreement were executed and performed wholly within the State of Ohio. No conflict of law provisions shall be invoked so as to use the laws of any other jurisdiction. The exclusive venue for all cases or disputes related to or arising out of this Agreement shall be the state and federal courts in Franklin County, Ohio. 23. ENTIRE AGREEMENT. This Agreement, including any Exhibit attached hereto, all constitute the entire agreement between the Parties with respect to the subject matter. This Agreement cannot be modified except in writing signed by both Parties. SIGNATURE PAGE TO IMMEDIATELY FOLLOW {H1447230.1 ~ COI-1328316v2 IN WITNESS HEREOF the Parties have executed and delivered this Agreement effective the day and year first above written. USER: Oho Proton Therapy, LLC, an Ohio limited liability company By: Its: Approved As To Form: Law Director, City of Dublin, Ohio OWNER: City of Dublin, Ohio, an Ohio municipal corporation By: Its: REST OF PAGE LEFT INTENTIONALLY BLANK (H1447230J j - I~ - COI-1328316v2 Exhibit A OWNERS FIBER SYSTEM DESCRIPTION AND MAP 1 ~ ' StINt Atlas USA® 2004 1 ~ l~ i 1 ~ ~~..wbc.m.' APPENDIX A~ +I 4 Q ~ ~I // Ili /J j Q ~~ j 1~5 I I f ~ 17 ~~ ~\_.® _ ~Pow.u ~~ ~ -- ... Q ~ _. . '~ + ~ i 1 i w1`~ i ; ~, ~, 1 d ~..- --.. -~----. . --~~ ,l } ~ 't~w«4rrm._.. i `~ I ~ '~~ ~~ ,~~„M°B~, 1, 1--, I F `,'_~ U W~Mlnpbn ~ ~ ~~ ~- ~- _-0-.-~{,_ ~. ~_.,_.. ` !, ~ -.tom t '~, >,1 l~ »..o„..,. ai~ef,,, nuw 1 y r~ i1 ~~i ~' ~~. 1 ~ ' ~~ 1 i `1 `/ _ /... .., 116 .. _~ ~.. x~. „ i ~~. us s Tom.: 'J ~ ~ s aye 1 ',~ Scab 1'.125,000 _..___.. __. _-__ -_- I r. t.e~ m. ~- oau Zoom taa ~ H 1447230. I J - 1 3 COI-1328316v2 Exhibit B FIBER SYSTEM SPECIFICATIONS Two (2) count, Single Mode fiber optic cable Loose tube construction Manufactured at .35/.25 attenuation All dielectric construction The Owner will endeavor to keep the number of splices in a span to a minimum. REST OF PAGE LEFT INTENTIONALLY BLANK ~ H 1447230. I ~ - 14 - COI-1328316v2 Exhibit C MAINTENANCE AND REPAIR Charges for Time and Material Service The Owner or Owner's agent may perform maintenance service at the rates established below, which rates are subject to change. Unless specifically authorized by the User, no Scheduled Maintenance will be performed outside of normal working hours, detailed below: Normal Workin Hours: Overtime Hours: 8:00 a.m. to 5:00 p.m., 5:01 p.m. to 7:59 a.m., Saturday, Sunday, Monday through Friday and all Owner observed holidays. (Except Owner observed holiday). Expenses Incurred per call out: Labor Rates Hourlv Rate Overtime Rate Project Manager 89.87 134.80 Professional Engineer 77.88 116.83 Right of Way Agent 58.11 87.17 Supervisor 57.15 85.73 Foreman 44.21 66.32 Operator 37.68 56.52 Truck Driver 31.16 46.73 Laborer 26.01 39.01 Fiber Splicer Equipment Rates Hourlv Rate Pickup 14.97 1-ton /flat bed 16.17 2-ton dump 18.58 Trailer 8.39 Rubber tires backhoe 28.76 Rodding machine 26.06 Winch truck 26.06 Air compressor 13.78 Light plant 18.45 Arrow board 10.78 2" water pump 6.00 Generator 6.00 Cable Cart 8.39 Manhole package 17.38 Fusion Splicing Package Charges will be made for travel time to the location where maintenance is to be performed. If maintenance carries over after 5:00 p.m., or maintenance is required on Saturday, Sunday, or (H1447230J { - 1 5 - COI-1328316v2 during holiday hours, charges will also be made for travel time from the said location. Charges will be for a minimum of one (1) hour for normal hours and for a minimum of two (2) hours for overtime holiday hours and special call out. All rates, charges, and holiday schedules are subject to change. REST OF PAGE LEFT INTENTIONALLY BLANK END OF AGREEMENT AND EXHIBITS ~H1447230.I ~ - 16 - COI-1328316v2