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04-07 OrdinanceRECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 Ordinance No 04 -07 Passed 20 1 1 AN ORDINANCE DECLARING THE IMPROVEMENT TO CERTAIN PARCELS TO BE A PUBLIC PURPOSE AND EXEMPT FROM TAXATION; SPECIFYING THE PUBLIC INFRASTRUCTURE IMPROVEMENTS DIRECTLY BENEFITING THE PARCELS; REQUIRING THE OWNERS THEREOF TO MAKE SERVICE PAYMENTS IN LIEU OF TAXES; ESTABLISHING A MUNICIPAL PUBLIC IMPROVEMENT TAX INCREMENT EQUIVALENT FUND AND PROVIDING FOR THE COLLECTION AND DEPOSIT OF SERVICE PAYMENTS INTO THAT FUND; PROVIDING FOR THE PAYMENT OF A PORTION OF THE SERVICE PAYMENTS TO THE DUBLIN CITY SCHOOL DISTRICT IN THE AMOUNT IT WOULD OTHERWISE RECEIVE ABSENT THE EXEMPTION; AND AUTHORIZING THE EXECUTION OF TAX INCREMENT FINANCING AGREEMENTS AND AN INFRASTRUCTURE AGREEMENT. WHEREAS, Ohio Revised Code Sections 5709.40(B), 5709.42 and 5709.43 (collectively, the "TIF Statutes ") authorize the legislative authority of a municipal corporation, by ordinance, to declare the improvement to certain parcels of real property located within the municipal corporation to be a public purpose and exempt from taxation, require the owner of each parcel to make service payments in lieu of taxes, provide for the distribution of the applicable portion of such service payments to the city, local or exempted village school district, establish a municipal public improvement tax increment equivalent fund for the deposit of the remainder of such service payments and specify public infrastructure improvements made, to be made or in the process of being made that directly benefit, or that once made will directly benefit those parcels; and WHEREAS, Stavroff Land & Development, Inc. ( "Developer ") owns certain parcels of real property located within the City (which parcels are identified and depicted in Exhibit A and referred to collectively as the "Parcels ") and intends to make or cause to be made certain improvements to the Parcels as described in Exhibit B attached hereto (the "Project'); and WHEREAS, this Council has determined to declare the Improvements (as defined in Section 1) to the Parcels to be a public purpose and exempt from taxation under the TIF Statutes and to require the owners of the Parcels to make Service Payments (as defined in Section 2) with respect to the Parcels; and WHEREAS, this Council has determined that the Project will promote commercial activity and create jobs within the City and therefore, the City will utilize a portion of the Service Payments to provide for the public infrastructure improvements described in Exhibit C attached hereto (the "Public Infrastructure Improvements "); and 1 WHEREAS, this Council has determined that a portion of the service payments shall be paid to the Dublin City School District, Ohio (the "School District') in an amount equal to the real property taxes that the School District would have been paid if the Improvements to each Parcel had not been exempted from taxation pursuant to this Ordinance; and WHEREAS, notice of this Ordinance has been delivered to the board of education of the School District and the Central Ohio Joint Vocational School District, each in accordance with and within the time periods prescribed in Ohio Revised Code Sections 5709.40 and 5709.83; and WHEREAS, this Council has determined to provide for the execution and delivery of one or more Tax Increment Financing Agreements and an Infrastructure Agreement to provide for the development of the Parcels; RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 Ordinance No. 04 -07 Passed Page 2 � 1 1 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, Delaware, Franklin and Union Counties, State of Ohio, '7 of the elected members concurring that: Section 1 . Authorization of Tax Exemption This Council hereby finds and determines that 100% of the increase in assessed value of each Parcel subsequent to the effective date of this Ordinance (which increase in assessed value is hereinafter referred to as the "Improvement" as defined in Ohio Revised Code Section 5709.40(A)) is hereby declared to be a public purpose and shall be exempt from taxation for a period commencing with the first tax year that begins after the effective date of this Ordinance and in which an Improvement due to the construction of a new structure on that Parcel first appears on the tax list and duplicate of real and public utility property for such Parcel and ending on the earlier of (a) thirty (30) years after such commencement or (b) the date on which the City can no longer require service payments in lieu of taxes, all in accordance with the requirements of the TIF Statutes (the "TIF Exemption"). Section 2 Payment of Service Payments and Property Tax Rollback Payments As provided in Ohio Revised Code Section 5709.42, the owner of each Parcel is hereby required to and shall make service payments in lieu of taxes with respect to the Improvements allocable thereto to the Treasurer of Franklin County, Ohio (the "County Treasurer ") on or before the final dates for payment of real property taxes. Each service payment in lieu of tames shall be charged and collected in the same manner and in the same amount as the real property taxes that would have been charged and payable against that Parcel if it were not exempt from taxation pursuant to Section 1 of this Ordinance, including any penalties and interest (collectively, the "Service Payments "). The Service Payments, and any other payments with respect to each Parcel that are received by the County Treasurer in connection with the reduction required by Ohio Revised Code Sections 319.302, 321.24, 323.152 and 323.156, as the same may be amended from time to time, or any successor provisions thereto as the same may be amended from time to time (the "Property Tax Rollback Payments "), shall be allocated and distributed in accordance with Section 3 of this Ordinance. Section 3. Distribution of Payments to School District and City Pursuant to the TIF Statutes, the County Treasurer is requested to distribute the Service Payments and the Property Tax Rollback Payments as follows: • to the School District, an amount equal to the amounts the School District would otherwise receive as real property tax payments (including the applicable portion of any Property Tax Rollback Payments) derived from the Improvement to each Parcel located within the School District absent the exemption provided for in this Ordinance, and • to the City, all remaining amounts for further deposit into the Fund (as defined in Section 4 of this Ordinance). IL All distributions required under this Section 3 are requested to be made at the same time and in the same manner as real property tax distributions. Section 4 . Creation of TIF Fund This Council hereby establishes, pursuant to and in accordance with the provisions of Ohio Revised Code Section 5709.43, the Shamrock Crossing Project Municipal Public Improvement Tax Increment Equivalent Fund (the "Fund"). The Fund shall be maintained in the custody of the City and shall receive all distributions to be made to the City pursuant to Section 3 of this Ordinance. Those Service Payments and Property Tax Rollback Payments received by the City with respect to the Improvement of each Parcel and so deposited pursuant to Ohio Revised Code Section 5709.42 shall be used solely for the purposes authorized in the TIF Statutes or this Ordinance. The Fund shall remain in existence so long as such Service Payments and Property Tax Rollback Payments are collected and used for the aforesaid purposes, RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 Ordinance No. 04 -07 Passed Paget after which time the Fund shall be dissolved and any surplus funds remaining therein transferred to the City's General Fund, all in accordance with Ohio Revised Code Section 5709.43. 1 1 1 Section 5 Public Infrastructure Improvements This Council hereby designates the public infrastructure improvements described in Exhibit C attached hereto (the "Public Infrastructure Improvements ") as Public Infrastructure Improvements made, to be made or in the process of being made that directly benefit, or that once made will directly benefit, the Parcels. Section 6 Tax Increment Financing Agreement The form of Tax Increment Financing Agreement (the "TIF Agreement ") presently on file with the Clerk of this Council, providing for, among other things, the payment of Service Payments, is hereby approved and authorized with changes therein and amendments thereto not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager. The City Manager, for and in the name of this City, is hereby authorized to execute one or more TIF Agreements with respect to the Parcels in substantially that form along with any amendments thereto, provided that the approval of such changes and amendments thereto by the City Manager, and the character of those changes and amendments as not being substantially adverse to this City, shall be evidenced conclusively by the City Manager's execution thereof. Section 7 . Infrastructure Agreement The form of Infrastructure Agreement (the "Infrastructure Agreement ") presently on file with the Clerk of this Council, providing for, among other things, the construction of the Public Infrastructure Improvements, is hereby approved and authorized with changes therein and amendments thereto not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager. The City Manager, for and in the name of this City, is hereby authorized to execute the Infrastructure Agreement, in substantially that form along with any amendments thereto, provided that the approval of such changes and amendments thereto by the City Manager, and the character of those changes and amendments as not being substantially adverse to this City, shall be evidenced conclusively by the City Manager's execution thereof. Section 8 . Non - Discriminatory Hiring Policy In accordance with Section 5709.823 of the Ohio Revised Code, this Council hereby determines that no employer located upon the Parcels shall deny any individual employment based solely on the basis of race, religion, sex, disability, color, national origin or ancestry. Section 9 . Further Authorizations This Council hereby authorizes and directs the City Manager, the Clerk of Council, the Director of Law, the Director of Finance or other appropriate officers of the City, to make such arrangements as are necessary and proper for collection from the Owners of the Service Payments. This Council further hereby authorizes and directs the City Manager, the Clerk of Council, the Director of Law, the Director of Finance or other appropriate officers of the City to prepare and sign all agreements and instruments and to take any other actions as may be appropriate to implement this Ordinance. Section 10 Filings with Ohio Department of Development Pursuant to Ohio Revised Code Section 5709.40(G), the Clerk of Council is hereby directed to deliver a copy of this Ordinance to the Director of Development of the State of Ohio within fifteen days after its effective date. Further, and on or before March 31 of each year that the TIF Exemption remains in effect, the Economic Development Director or other authorized officer of the City shall prepare and submit to the Director of Development of the State of Ohio the status report required under Ohio Revised Code Section 5709.40(G). Section 11 . Open Meetings This Council finds and determines that all formal actions of this Council and any of its committees concerning and relating to the passage of this RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30 04 -07 Page 4 Ordinance No. Passed 20_ Ordinance were taken in an open meeting of this Council or its committees, and that all deliberations of this Council and any of its committees that resulted in those formal actions were in meetings open to the public, all in compliance with the law including Ohio Revised Code Section 121.22. Section 12 . Effective Date This Ordinance shall be in full force and effect on the earliest date permitted by law. Signed: i Mayor - Presiding Officer Attest: yi p Clerk ouncil Passed: 5 , 2007 Effective: 7 , 2007 1 1 CITY OF DURUN City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614 -410 -4400 • Fax: 614 - 410 -4490 To: Members of Dublin City Council From: Jane S. Brautigam, City Manager Date: January 18, 2007 Initiated By: Marsha I. Grigsby, Deputy City Manager /Director of Finance Memo Re: Ordinance No. 04 -07, An Ordinance Establishing a Tax Increment Financing District and Authorizing the Execution of a Tax Increment Financing Agreement and Infrastructure Agreement (Shamrock Crossing Development) SUMMARY: Ordinance No. 04 -07 provides for the establishment of a non - school tax increment financing (TIF) district for approximately 22 acres located at the intersection of State Route 161 and Shamrock Boulevard. Shamrock Crossing LLC currently owns or has options to purchase the property that is proposed to be included in the TIF district. The majority of the land included in the proposed TIF district is part of the Shamrock Crossing rezoning application scheduled for second reading on January 22, 2007. As discussed in the attached December 19, 2006 memo that was included in a recent City Council packet and the information presented for Ordinance No. 01 -07, the proposed Shamrock Crossing development provides for up to 136,000 square feet of development comprised of retail, office, and service- oriented uses. The proposed TIF does not include the currently occupied residential properties, approximately 2 acres, which were anticipated to be included in the December 19, 2006 memo. The City's bond counsel, Squire, Sanders & Dempsey, recommends the TIF district exclude the currently occupied residential properties because of potential conflicts in State law as it relates to incentive districts (residential TIFs) versus TIF districts. Once Shamrock Crossing LLC closes on the properties and the residents vacate the property, the City could modify the TIF district to add the residential properties if so desired. The value of private improvements that will be constructed on the current residential properties will be minimal based on current development plans. The option to delay establishing the TIF district was considered; however, it was decided to introduce the TIF legislation because one of the conditions of the Shamrock Crossing rezoning refers to the developer's financial participation for infrastructure via a TIF Agreement. The developer has estimated the private improvements, including the potential future development on the south side of Stoneridge Lane, will be in excess of $23 million. For the purpose of projecting potential service payments, staff has estimated that the value of the private improvements will be approximately $20 million based on similar existing developments in the City. Based on the 2006 tax rates, it is estimated the City will receive approximately $210,000 per year at full development to provide funding for the public infrastructure improvements included in the Description of Public Infrastructure Improvements, Exhibit C to the Ordinance. Shamrock Crossing LLC has estimated the development in the TIF area will result in 224 additional jobs in the City with a payroll in excess of $8,000,000. The estimated payroll would result in approximately $160,000 in additional income tax revenue. The estimates are for the development to be constructed as part of the Shamrock Crossing rezoning and the potential senior care center that is currently anticipated to be developed on the property on the south side of Stoneridge Lane. January 18, 2007 M. Grigsby — Ord. 04 -07 Shamrock Crossing TIF Page 2 The establishment of the proposed TIF district will assist with completing roadway connections in the area. The extension of Banker Drive and Stoneridge Lane from their existing termini to Shamrock Boulevard and the extension of Shamrock Boulevard to Village Parkway will provide for east -west connections in the area. Shamrock Crossing will be dedicating the right -of -way to the City for Stoneridge Lane, Banker Drive except for the residential property, and Shamrock Boulevard along the western property line of the Shamrock Crossing LLC parcel. In addition to these major roadway connections, the constructions of area sidewalks and /or bikepaths (i.e. the sidewalk along Dublin Center Drive from SR 161 to Martin Road), and intersection improvements at SR 161 and Riverside Drive have been identified as public infrastructure improvements to be funded by the service payments generated from the proposed TIF. We have also added the burying of the overhead power lines along SR 161 as a potential project funded via the TIF. The attached map identifies the significant infrastructure improvements to be funded by the proposed TIF. The establishment of the proposed TIF district was also instrumental in the developer being able to incorporate and redevelop the five (5) residential properties along David Road and SR 161 in the Shamrock Crossing development. The extensions of Stoneridge Lane and Banker Drive are preliminarily estimated to cost $750,000 which, based on the estimated service payments, would result in the City being reimbursed in less than four (4) years. The extension of Shamrock Boulevard is included in the existing Wendy's TIF and the SR 161 /Riverside Drive intersection is included in the existing River Ridge TIF. Once the City is reimbursed for the Stoneridge Lane and Banker Drive extensions, the remaining term of the TIF would then be utilized to reimburse the City for the extension of Shamrock Boulevard and the SR 161 /Riverside Drive intersection projects in conjunction with the other TIF districts. If sufficient funding is available in the future, the City can evaluate the option of burying the overhead power lines along SR 161. As mentioned above, the proposed TIF is a non - school TIF. The Dublin School District (the School District) will receive service payments based on their effective millage. Service payments are calculated the same as property taxes and are distributed to the School District at the same time as property tax revenues are distributed. Based on the 2006 effective tax rates and estimated value of the private improvements, the School District will receive annual service payments in the amount of approximately $339,000. It is important to note the future development property values will be considered "exempt" for property tax purposes and therefore are reflected in the Dublin School District's assessed valuation. This is beneficial to the School District because as assessed valuation increases, the State school foundation and payments made to the School district are decreased. As a result of the proposed TIF being established, the School District will receive approximately $161,000 more in total revenue annually than they will if the TIF district is not established. As you are aware, other governmental jurisdictions are impacted by the establishment of TIF districts. The TIF districts result in the deferral of property tax revenue. In Franklin County, several agencies have operating levies. For those agencies, the proposed TIF will result in the following property tax deferrals: January 18, 2007 M. Grigsby — Ord. 04 -07 Shamrock Crossing TIF Page 3 Children Services $31,310 ADAMH 15,400 MRDD 41,450 Metro Parks 3,820 Zoo 5,060 Office on Aging 5,460 It is important to keep in mind how these dollars compare to the overall tax revenue collected by these agencies. The total assessed valuation for all of the City's established TIF districts is $113.6 million, less than one -half percent of Franklin County's total assessed valuation. Also, we are utilizing these dollars for public infrastructure that will have long -term positive impacts on the area. Washington Township has several operating levies for fire and EMS service. The total additional revenue deferred for these levies is approximately $63,230. The inside millage impact to the governmental jurisdictions is minimal. Outside of the School District, the City's impact is the highest at approximately $12,250. The property tax deferred for Tolles Career & Technical Center is $9,100. The City's ability to continue investing in public infrastructure improvements has been a key component of our economic success. TIFs have been a valuable tool in providing funding for these investments. As of the end of 2005 (2006 information has not been completed), the City has invested in excess of $67 million in public infrastructure utilizing service payments from TIF districts to fund the improvements over time. RECOMMENDATION It is recommended the Ordinance No. 04 -07 be adopted at its second reading /public hearing on February 5, 2007. City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614 - 410 -4400 • Fax: 614 - 410 -4490 •CITY OF DUBLIN To: Jane S. Brautigam, City Manager From: Marsha I. Grigsby, Deputy City Manager /Director of Finance Date: December 19, 2006 Re: Shamrock Crossing Development Memo As you are aware, there have been numerous meetings to discuss the proposed Shamrock Crossing development, including discussions on establishing a tax increment financing (TIF) district for the project. The following provides an update on our discussions. The proposed Shamrock Crossing development will total 136,000 square feet of development comprised of retail, office, and service- oriented uses on approximately 24 acres. The development will be east of Shamrock Boulevard on both the north and south sides of SR 161. The establishment of a TIF district has been discussed as a way to fund area public infrastructure needs and to assist with the redevelopment of five (5) residential properties along David Road and SR 161. he TIF, based on an estimate of $16 million in private development, would generate pproximately $160,000 per year in service payments to fund area public infrastructure improvements. The improvements would include the extension of Stoneridge Lane, the extension of Banker Drive and the extension of Shamrock Boulevard. In addition to these improvements at the development site, we would include the extension of the sidewalk along Dublin Center Drive from SR 161 to Martin Road and the intersection improvements at SR 161 /Riverside Drive. The extension of Shamrock Boulevard is included in the existing Wendy's TIF and the SR 161 /Riverside Drive intersection is included in the existing River Ridge TIF. Including these two projects in a proposed Shamrock Crossing TiF will result in the City being reimbursed for those two projects over a shorter period of time. The extension of Stoneridge Lane and Banker Drive are estimated to cost approximately $750,000 which, based on estimated service payments, would result in the City being reimbursed in less than five (5) years. The remaining term of the TIF would then be utilized to reimburse the City for the extension of Shamrock Boulevard and the SR 161 /Riverside Drive intersection projects in conjunction with the Wendy's TIF and the River Ridge TIF. We could also consider adding the burying of the utility lines along SR 161. It is my understanding the rezoning for the proposed development will be on City Council's agenda in January. We will work to prepare the legislation for the TIF for the second meeting in January or the first meeting in February. • 04 -07 EXHIBIT A PROPERTY Page 5 The shaded area on the following map specifically identifies and depicts the Parcels and constitutes part of this Exhibit A . The Parcels include the following tax parcels: A -5 CITY OF DUBLIN EXHIBIT RRERARED BY M = OF DUBLW T.I.F. AREA =10N or 6 GRMEM0 SHAMROCK BLVD. / S.R 161 seoo a NN oN° emu -� DUBLIN, OHIO emrc lela)aio -aeon . to (614)M -M I — J ` mom, HOBB3 LANDING DR. W. pry. �k g mmcr� a 9 � I - WA DUSLW— GRANyR,j,E RA S.R 183) g! U 9 .. -- - - - STq_NERTDGE 141; 2 PROP STONERIDGE gRv qg�g: Igs 37 3 S� I DRAWN CHECKED DATE: JOB NO. JLR MG 01/12/07 04 -07 EXHIBIT B PROJECT DESCRIPTION Page 6 The Project will consist of up to 136,000 square feet of retail, office, and service - oriented uses. In addition to the improvements permitted and provided for in the Shamrock Crossing development, it is anticipated that a senior care facility or up to 60,000 square fee of office may be constructed south of Stoneridge Lane. C EXHIBIT C PUBLIC INFRASTRUCTURE IMPROVEMENTS The Public Infrastructure Improvements include the construction of the following improvements and all related costs (as defined in Ohio Revised Code Section 133.15(B)): • extending Banker Drive east from Shamrock Boulevard to the existing Banker Drive termini, including the acquisition of any necessary right -of -way from the existing residential properties. • extending Shamrock Boulevard north and east (curving) from its existing termini, including the acquisition of any necessary right -of -way and any turn lanes necessary at the intersection with State Route 161. • extending Stoneridge Lane west from its existing termini. • constructing a pedestrian pathway between Sharp Lane and State Route 161. • eliminating the existing curb cuts along State Route 161 adjacent to the Parcels. • constructing sidewalks and /or bikepaths in and around the Project site. • improvements to the State Route 161 and Riverside Drive intersection. • burying the overhead power lines in and around the Project site. each, together with constructing and installing curbs and gutters, public utilities which include water mains, sanitary sewer, and storm sewer, stormwater improvements, burial of utility lines, gas, electric and communications service facilities (including fiber optics), street lighting and signs, sidewalks, bikeways, and landscaping (including scenic fencing and irrigation), traffic signs and signalization, and including design and other related costs, any right -of -way or real estate acquisition, erosion and sediment control measures, grading, drainage and other related work, survey work, soil engineering, inspection fees and construction staking, any other necessary site improvements, and in each case, all other costs and improvements necessary and appurtenant thereto. C -1 TAX INCREMENT FINANCING AGREEMENT THIS TAX INCREMENT FINANCING AGREEMENT (the `Agreement'), made and entered into as of this day of , 2007, by and between the CITY OF DUBLIN, OHIO (the "City, a municipal corporation organized and existing under the constitution and the laws of the State of Ohio and its Charter, and STAVROFF LAND & DEVELOPMENT, INC. (the `Developer "), an Ohio company. RECITALS: WHEREAS, the Developer has acquired [or will acquire] by deed certain real property located in the City (which real property is depicted on Exhibit A which is attached hereto and incorporated herein by reference and the various parcels now or hereafter configured being referred to herein as the `Parcels" and each individual parcel comprising the real property being referred to herein as a Parcel "); and WHEREAS, the Developer will construct, or cause to be constructed, certain private improvements upon the Parcels (which private improvements are more fully described on Exhibit B which is attached hereto and incorporated herein by reference and such private improvements are collectively referred to herein as the "Project; and WHEREAS, the Developer desires that certain public infrastructure improvements (which public infrastructure improvements are more fully described on Exhibit C which is attached hereto and incorporated by reference and such public infrastructure improvements are collectively referred to herein as the "Public Infrastructure Improvements ") be constructed and installed, and agrees that the Public Infrastructure Improvements will benefit the Parcels; and WHEREAS, prior to the passage of the TIE Ordinance (as defined below), the City provided notice of the proposed adoption of the TIE Ordinance to the Dublin City School District (the "School District") and the affected joint vocational school district, all as required by Ohio Revised Code Sections 5709.40 and 5709.83; and WHEREAS, the City has determined that it is necessary and appropriate and in the best interests of the City to provide for the Developer, and any subsequent owners of any of the Parcels (the Developer and the subsequent owners being collectively referred to herein as the "Owners "), to make service payments in lieu of taxes (the "Service Payments ") with respect to the Parcels to pay the costs of the construction by the City of the Public Infrastructure Improvements (including debt service on any securities issued for that purpose) and to compensate the School District, all pursuant to and in accordance with Ohio Revised Code Sections 5709.40 through 5709.43 (collectively, the "TIF Statutes "); and WHEREAS, the City, by its Ordinance No. passed on , 2007 (the "TIF Ordinance "), has declared that 100% of the increase in assessed value of each Parcel subsequent to the effective date of the TIE Ordinance (each an "Improvement") is a public purpose and shall be exempt from taxation for a period which commences with the first tax year that begins after the effective date of the TIF Ordinance and in which an Improvement due to the construction of a structure on that Parcel first appears on the tax list and duplicate of real and public utility property and ending on the earlier of (a) thirty (30) years after such commencement or (b) the date on which the City can no longer require service payments in lieu of taxes, all in accordance with the requirements of the TIF Statutes (the '71F Exemption"); and WHEREAS, in order to provide for the collection of such Service Payments, to induce the City to construct the Public Infrastructure Improvements and to induce the Developer to proceed with the Project, the City and the Developer desire to enter into this Agreement on the terms as hereinafter provided; Now, THEREFORE, in consideration of the premises above, and representations, agreements and covenants contained herein, the City and the Developer hereto agree as follows: Section 1. Covenant to Make Payments in Lieu of Taxes The Owners hereby covenant to make Service Payments attributable to their respective period of ownership of any Parcel, all pursuant to and in accordance with the requirements of the TIF Statutes, and any subsequent amendments or supplements thereto, the TIF Ordinance and this Agreement. Service Payments will be made semiannually to the County Treasurer of Franklin County, Ohio (or to such Treasurer's designated agent for collection of the Service Payments) on or before the final dates for payment of real property taxes for the Parcels. 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 may be amended from time to time. Service Payments will be made in accordance with the requirements of the TIF Statutes and the TIF Ordinance and, for each Parcel, will be in the same amount as the real property taxes that would have been charged and payable against the Improvement to that Parcel (after credit for any other payments received by the City under Ohio Revised Code Sections 319.302, 321.24, 323.152 and 323.156, or any successor provisions thereto, as the same may be amended from time to time, and are referred to herein as the "Property Tax Rollback Payments ") if it were not exempt from taxation pursuant to the TIF Ordinance, including any penalties and interest. No Owner will, under any circumstances, be required for any tax year to pay both real property taxes and Service Payments with respect to any portion of an Improvement, whether pursuant to Ohio Revised Code Section 5709.42, the TIF Ordinance or this Agreement. Section 2. Declaration of Covenants; Prioritv of Lien Within thirty (30) days following the execution of this Agreement, the Developer will file a declaration relating to the Parcels (the "Declaration ") in the official real property records maintained by the Recorder of the City that provides that the covenants contained in Sections 1, 2, 3, 10 and 12 of this Agreement are covenants running with the land and that they will, in any event and without regard to technical classification or designation, legal or otherwise, be binding to the fullest extent permitted by law and equity for the benefit and in favor of and enforceable by the City and the School District against any Owner with respect to that Owners' period of ownership of that Parcel whether or not such provision is included by an Owner in any deed to such Owner's -2- successors and assigns. The covenants will remain in effect for the full period in respect of which the TIE Exemption is applicable to that Parcel. Such covenants running with the land will have priority over any other lien or encumbrance on a Parcel and any improvements thereon, except for such title exceptions as are approved in writing by the City, and the Developer will, upon the City's request, cause any and all holders of mortgages or other liens existing on a Parcel at the time of filing of the Declaration to subordinate such mortgage or lien to those covenants running with the land. At the City's option and at its request, the Developer hereby agrees to provide such title evidence, at no cost to the City, as is necessary to demonstrate to the City's satisfaction that the covenants running with the land provided in the Declaration at the time the Declaration is filed are prior and superior to any other liens, encumbrances or other title exceptions, except for those which are approved in writing by the City. Upon termination of the City's right to collect Service Payments relating to any Parcel, the City will, upon the request of the Owner of that Parcel, execute an instrument in recordable form evidencing such termination and releasing the covenants running with the land set forth in the Declaration with respect to that Parcel. Section 3. Exemption Application The Owner of each Parcel covenants to prepare, execute and file all necessary applications and supporting documents (including, but not limited to the Ohio Department of Taxation Form DTE -24 or any successor thereto and the notice required by Ohio Revised Code Section 5709.911(C)) to obtain and maintain from time to time the TIE Exemption and to enable the City to collect the Service Payments. The City agrees to cooperate with the Owner of each Parcel in the preparation and filing of such applications and documents. If the Owner of any Parcel fails to timely file such applications and supporting documents, that Owner hereby authorizes the City to, and the City may, file such applications and supporting documents, and that Owner covenants to cooperate with the City's filing of such applications and supporting documents, including executing any desired or necessary consents, applications and documents. The City covenants that it will perform such acts as are reasonably necessary or appropriate to effect, claim, reserve and maintain the TIE Exemption and collect the Service Payments. Section 4. Tax Increment Equivalent Fund The City and the Developer acknowledge the creation, pursuant to the TIE Ordinance, of the Shamrock Crossing Project Municipal Public Improvement Tax Equivalent Fund (the Fund') to be maintained in the custody of the City. The City and the Developer acknowledge that the Fund shall receive all Service Payments and Property Tax Rollback Payments payable to the City (after providing for the payments to the School District as required by the TIE Ordinance) in respect of the Parcels as described in Section 1, with all such Service Payments and Property Tax Rollback Payments deposited into the Fund being used to finance or pay the costs of the Public Infrastructure Improvements (as described in the TIE Ordinance). Any incidental surplus remaining in the Fund shall be disposed of as provided in Section 5709.43 of the Ohio Revised Code. -3- Section 5. Construction of Proiect and Public Infrastructure Improvements In consideration for the City's agreements herein, the Developer agrees to construct, or cause the construction of, the Project In consideration for the Developer's agreement to construct the Project, the City agrees to construct, or cause to be constructed, the Public Infrastructure Improvements. Section 6. Termination Upon satisfaction of the Owners' obligations under this Agreement and termination of the Owners' obligations to make the Service Payments, this Agreement shall terminate. Section 7. Estoppel Certificate Within fifteen (15) days after a request from any Owner of a Parcel, the City will execute and deliver to that Owner or any proposed purchaser, mortgagee or lessee of such Parcel, a certificate stating that with respect to such Parcel, 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. Section 8. Representations of Parties The Developer hereby represents that it is the owner in fee simple of the Parcels and has the power and authority to enter into this Agreement and carry out its terms. The City hereby represents that the TIF Ordinance was passed by the City Council of the City on , 2007 and that the City has the requisite power and authority to enter into this Agreement and carry out its terms. Section 9. Successors; Assignment; Amendments, Changes and Modifications This Agreement will be binding upon the Developer and its successors and assigns and the City and its successors and assigns. The parties may only assign this Agreement with the consent of the other, which consent will not be unreasonably withheld, provided, however, that nothing in this Agreement prevents the Developer from transferring any or all of its interest in the Project or the Parcels to another person or entity. This Agreement may only be amended by written instrument executed by all parties to this Agreement. Section 10. Information Reporting The Owners covenant to cooperate in all reasonable ways with, and provide necessary and reasonable information to, the designated Tax Increment Review Council to enable that Tax Increment Review Council to review and determine annually during the term of this Agreement the compliance of the Owner with the terms of this Agreement. Any information supplied to such Tax Increment Review Council will be provided solely for the purpose of monitoring the Owner's compliance with this Agreement. The Owners further covenant to cooperate in all reasonable ways with, and provide necessary and reasonable information to the City to enable the City to submit the status report required by Ohio Revised Code Section 5709.40(1) to the Director of the Ohio Department of Development on or before March 31 of each year within the term of the Agreement. Any information supplied to the City will be provided solely for the purpose of enabling the City to comply with this requirement. -4- Section 11. Agreement Binding on Parties; No Personal Liabilitv; City Consents All covenants, obligations and agreements of the City and the Developer contained in this Agreement shall be effective to the extent authorized and permitted by applicable law. No such covenant, obligation or agreement shall be deemed to be a covenant, obligation or agreement of any present or future member, officer, agent or employee of the City in other than their official capacity or of any individual person who is an officer, director or shareholder of the Developer other than in their capacity as an officer, director or shareholder, and neither the members of City Council nor any City official executing this Agreement, or any individual person executing this agreement on behalf of the Developer, shall be liable personally by reason of the covenants, obligations or agreements of the City or the Developer contained in this Agreement. Any consent of the City to be given under this Agreement may be given by the City Manager, and shall be given in writing. Section 12. Nondiscriminatory Mring Policy The Owners will comply with the City's nondiscriminatory hiring policy set forth in the TIE Ordinance and adopted pursuant to Ohio Revised Code Section 5709.832. Section 13. Severabilitv If any provision of this Agreement is held to be illegal, invalid or unenforceable, said provision will be fully severable. This Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible that is and will be legal, valid and enforceable. Section 14. 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. The parties, by notice given hereunder, may designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent. The present addresses of the parties follow: (a) To the City at: City of Dublin, Ohio 5800 Shier Rings Road Dublin, Ohio 43016 -7295 Attention: Economic Development Director - 5 - (b) To the Developer at: Stavroff Land & Development, Inc. 565 Metro Place South, Suite 480 Delaware, Ohio 43017 Attention: Section 15. Counterparts This Agreement may be signed in one or more counterparts or duplicate signature pages with the same force and effect as if all required signatures were contained in a single original instrument. Any one or more of such counterparts or duplicate signature pages may be removed from any one or more original copies of this Agreement and annexed to other counterparts or duplicate signature pages to form a completely executed original instrument Section 16. Entire Agreement This Agreement constitutes the entire agreement between the parties with respect to the matters covered herein and supersedes prior agreements and understandings between the parties. Section 17. Governing Law and Choice of Forum This Agreement will be governed by and construed in accordance with the laws of the State of Ohio. All claims, counterclaims, disputes and other matters in question between the City, its employees, contractors, subcontractors and agents, and the Developer, its employees, contractors, subcontractors and agents arising out of or relating to this Agreement or its breach will be decided in a court of competent jurisdiction within the State of Ohio. (signature pages on the following page) -6- IN WITNESS WHEREOF, the City and the Developer have caused this Tax Increment Financing Agreement to be executed in their respective names by their duly authorized officers as of the date hereinabove written. Approved as to Form: By: Printed: Stephen J. Smith Title: Director of Law CITY OF DUBLIN, OHIO By: Printed: Jane Brautigam Title: Citv Manager By: Printed: Marsha L Grigsbv Title: Director of Finance STAVROFF LAND & DEVELOPMENT, INC. By: Printed: Title: -7- FISCAL OFFICER'S CERTIFICATE The undersigned, Director of Finance of the City under the foregoing Tax Increment Financing Agreement, certifies hereby that the moneys required to meet the obligations of the City during the year 2007 under the foregoing Tax Increment Financing Agreement have been appropriated lawfully for that purpose, and is in the Treasury of the City or in the process of collection to the credit of an appropriate fund, free from any previous encumbrances. This Certificate is given in compliance with Ohio Revised Code Sections 5705.41 and 5705.44. Dated: .2007 Director of Finance EXHIBIT A DEPICTION OF PARCELS [TO BE ADDED WHEN AVAILABLE] A -1 EXHIBIT B PROJECT The Project will consist of up to 136,000 square feet of retail, office, and service - oriented uses. In addition to the improvements permitted and provided for in the Shamrock Crossing development, it is anticipated that a senior care facility or up to 60,000 square fee of office may be constructed south of Stoneridge Lane. C EXHIBIT C PUBLIC INFRASTRUCTURE The Public Infrastructure Improvements include: • extending Banker Drive east from Shamrock Boulevard to the existing Banker Drive termini, including the acquisition of any necessary right -of -way from the existing residential properties. • extending Shamrock Boulevard north and east (curving) from its existing termini, including the acquisition of any necessary right -of -way and any turn lanes necessary at the intersection with State Route 161. • extending Stoneridge Lane west from its existing termini. • constructing a pedestrian pathway between Sharp Lane and State Route 161. • eliminating the existing curb cuts along State Route 161 adjacent to the Parcels. • constructing sidewalks and /or bikepaths in and around the Project site. • improvements to the State Route 161 and Riverside Drive intersection. • burying the overhead power lines in and around the Project site. each, together with constructing and installing curbs and gutters, public utilities which include water mains, sanitary sewer, and storm sewer, stormwater improvements, burial of utility lines, gas, electric and communications service facilities (including fiber optics), street lighting and signs, sidewalks, bikeways, and landscaping (including scenic fencing and irrigation), traffic signs and signalization, and including design and other related costs, any right -of -way or real estate acquisition, erosion and sediment control measures, grading, drainage and other related work, survey work, soil engineering, inspection fees and construction staking, any other necessary site improvements, and in each case, all other costs and improvements necessary and appurtenant thereto. C -1 INFRASTRUCTURE AGREEMENT (SHAMROCK CROSSING DEVELOPMENT) THIS INFRASTRUCTURE AGREEMENT (the Agreement') is made and entered into this day of , 2007 (the "Effective Date "), by and between the CITY OF DUBLIN, OHIO ( "City "), a municipal corporation duly organized and validly existing under the Constitution and the laws of the State of Ohio (the "State ") and its Charter, and STAVROFF LAND & DEVELOPMENT, INC. (the `Developer" and together with the City, the "Parties ") an Ohio for profit corporation, under the circumstances summarized in the following recitals (the capitalized terms not defined in the recitals are being used therein as defined in Article I hereof). RECITALS: WHEREAS, the Developer owns or will own certain real property near the intersection of State Route 161 and Shamrock Boulevard in the City and it plans to construct the Private Improvements on that real property; and WHEREAS, the Parties have determined that certain Public Infrastructure Improvements will need to be constructed to facilitate the development of the Private Improvements; and WHEREAS, in accordance with the TIF Statutes and pursuant to the TIF Ordinance, the Parties have entered into the TIF Agreement to provide generally for the development and financing of the Public Infrastructure Improvements; and WHEREAS, the City has determined pursuant to the TIF Ordinance that it would be in the best interests of the City to contract with the Developer to provide for the construction and installation of the Public Infrastructure Improvements in the manner described herein; and WHEREAS, the City Council has passed the TIF Ordinance authorizing the execution and delivery of this Agreement; Now, THEREFORE, in consideration of the premises and covenants contained herein, and to induce the Developer to proceed with the construction of the Public Infrastructure Improvements, 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. Dermitions As used herein: "Agreement' ' means this Infrastructure Agreement (Shamrock Crossing Development) by and between the City and the Developer and dated as of the Effective Date. Authorized City Representative" means initially the City Manager of the City. The City may from time to time provide a written certificate to the Developer signed on behalf of the City by the City Manager designating an alternate or alternates who shall have the same authority, duties and powers as the initial Authorized City Representative. Authorized Developer Representative" means initially . The Developer may from time to time provide a written certificate to the City signed on behalf of the Developer by the President of the Developer designating an alternate or alternates or a substitute who shall have the same authority, duties and powers as the initial Authorized Developer Representative. `Budget'' means the budget for the Cost of the Work set forth on EXHIBIT A attached hereto and incorporated herein by reference. "City" means the City of Dublin, Ohio, an Ohio municipality. "City Council" means the City Council of City. "Code" means the Internal Revenue Code of 1986, as amended, applicable Treasury Regulations (whether temporary or final) under the Code or the statutory predecessor of that Code, and any amendments of, or successor provisions to, the foregoing and any official rulings, announcements, notices, procedures and judicial determinations regarding the foregoing, all as and to the extent applicable. "Construction Documents" means this Agreement and the Drawings and Specifications as such documents may be revised or supplemented from time to time with the approval of the Authorized City Representative and the Authorized Developer Representative, which Drawings and Specifications contain the detailed construction plans and specifications for the Public Infrastructure Improvements and when completed, will be placed on file with the Authorized City Representative on behalf of the City. "Cost of the Work" means the estimated costs of the construction and installation of the Public Infrastructure Improvements that are reflected in the Budget. "County" means the County of Franklin, Ohio. "Developer" means Stavroff Land & Development, Inc., a for profit corporation organized and existing under the laws of the State, including any successors or assigns thereof permitted under this Agreement. "Developer's Completion Certificate" shall have the meaning set forth in Section 4.3(a) hereof. -2- "Drawings and Specifications" shall have the meaning set forth in Section 5.1 hereof. "Effective Date" means the date as defined in the preambles of this Agreement. "Engineer" means , or any other architectural or engineering firm licensed to perform architectural and engineering services within the State of Ohio and appointed by the City with the consent of the Authorized Developer Representative, which consent shall not be unreasonably withheld or delayed. "Engineer's Completion Certificate" shall have the meaning set forth in Section 4.3(b) hereof. "Event ofDefaulf' means an Event of Default under Section 7.1 hereof. "Force Majeure" means acts of God; fires; epidemics; landslides; floods; strikes; lockouts or other industrial disturbances; acts of public enemies; acts or orders of any kind of any governmental authority; insurrections; riots; civil disturbances; arrests; explosions; breakage or malfunctions of or accidents to machinery, transmission pipes or canals; partial or entire failures of utilities; shortages of labor, materials, supplies or transportation; lightning, earthquakes, hurricanes, tornadoes, storms or droughts; periods of unusually inclement weather or excessive precipitation; or any other cause or event not reasonably within the control of the Developer or the City, as the case may be, excluding, however, the inability of the Developer to obtain financing for its obligations hereunder. "Notice Address" means: as to City: City of Dublin, Ohio 5200 Emerald Parkway Dublin, Ohio 43017 Attention: City Manager as to Developer: Stavroff Land & Development, Inc. 565 Metro Place South, Suite 480 Dublin, Ohio 43017 Attention: "Person" shall mean an individual, a corporation, a partnership, an association, a limited liability company, a joint stock company, a joint venture, a trust, an unincorporated organization, or a government or any agency or political subdivision thereof. "Private Improvements" means the project proposed to be constructed by the Developer consisting of up to 136,000 square feet of retail, office, and service- oriented uses. In addition to the improvements permitted and provided for in the Shamrock Crossing development, it is anticipated that a senior care facility or up to 60,000 square feet of office may be constructed south of Stoneridge Lane. -3- "Public Infrastructure Improvements" means the public infrastructure improvements as generally described on EXHIBIT B -1 attached hereto and incorporated herein by reference and which will be more specifically described in the Construction Documents. "Public Infrastructure Improvements Site" means the real property depicted on EXHIBIT B -2 attached hereto and incorporated herein by reference. "State" means the State of Ohio. "TIF Agreement" means the Tax Increment Financing Agreement by and between the City and the Developer dated 1 2007. "TIF Fund" mean the Shamrock Crossing Project Municipal Public Improvement Tax Equivalent Fund created in Section 4 of the TIE Ordinance. "TIF Ordinance" means Ordinance No. passed on 2007 by the City Council. "TIF Statutes" means collectively, Sections 5709.40, 5709.42 and 5709.43 of the Ohio Revised Code, as those sections may be amended from time to time. "Work" means the construction of the Public Infrastructure Improvements in accordance with this Agreement. Section 1.3. Interpretation Any reference in this Agreement to City or to any officers of City includes those entities or officials succeeding to their functions, duties or responsibilities pursuant to or by operation of law or lawfully performing their functions. Any reference to a section or provision of the Constitution of the State, or to a section, provision or chapter of the Ohio Revised Code shall include such section, provision or chapter as modified, revised, supplemented or superseded from time to time; provided, that no amendment, modification, revision, supplement or superseding section, provision or chapter 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. -4- Section 1.4. Captions and Headings The captions and headings in this Agreement are solely for convenience of reference and in no way define, limit or describe the scope of the intent of any article, section, subsection, clause, exhibit or appendix of this Agreement. Section 1.5 Conflicts among the TIF Ordinance, TIF Agreement and Construction Documents Where there is a conflict between the TIE Ordinance, TIE Agreement and Construction Documents, the conflict shall be resolved by providing the better quality or greater quantity and compliance with the more stringent requirement. If an item is shown on the Drawings but not specified, the Developer shall provide the item of the same quality as similar items specified, as determined by the Engineer. If an item is specified but not shown on the Drawings, it shall be located as directed by the Engineer. END OF ARTICLE 1) - 5 - 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 in the manner described herein to facilitate the construction of the Public Infrastructure 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. END OF ARTICLE 11) -6- ARTICLE IH REPRESENTATIONS AND COVENANTS OF THE PARTIES that: Section 3.1. Representations and Covenants of Citv City represents and covenants (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 United States of America applicable to City which would impair its ability to carry out its obligations contained in this Agreement. (c) It is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. To the knowledge of City, that execution, delivery and performance do not and will not violate or conflict with any provision of law applicable to City, including its Charter, and do not and will not conflict with or result in a default under any agreement or instrument to which City is a party or by which it is bound. (d) This Agreement to which it is a Party has, by proper action, been duly authorized, executed and delivered by City and all steps necessary to be taken by City have been taken to constitute this Agreement, and the covenants and agreements of City contemplated herein are valid and binding obligations of City, enforceable in accordance with their terms. (e) There is no litigation pending or to its knowledge threatened against or by City wherein an unfavorable ruling or decision would materially and adversely affect City's ability, to carry out its obligations under this Agreement. (f) It will do all things in its power in order to maintain its existence or assure the assumption of its obligations under this Agreement by any successor public body. (g) The TIF Ordinance has been duly passed and shall be in full force and effect on the earliest date permitted by law. Section 3.2. Representations and Covenants of the Developer The Developer represents and covenants that: (a) It is a for profit corporation 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 the Developer which would impair its ability to carry out its obligations contained in this Agreement. -7- (c) It is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. To the knowledge of the Developer, that execution, delivery and performance do not and will not violate or conflict with any provision of law applicable to the Developer, and do not and will not conflict with or result in a default under any agreement or instrument to which the Developer is a party or by which it is bound. (d) This Agreement to which it is a Party has, by proper action, been duly authorized, executed and delivered by the Developer and all steps necessary to be taken by the Developer have been taken to constitute this Agreement, and the covenants and agreements of the Developer contemplated herein are valid and binding obligations of the Developer, enforceable in accordance with their terms. (e) There is no litigation pending or to its knowledge threatened against or by the Developer wherein an unfavorable ruling or decision would materially and adversely affect the Developer's ability to carry out its obligations under this Agreement. (f) It will do all things in its power in order to maintain its existence or assure the assumption of its obligations under this Agreement by any successor entity. (END OF ARTICLE 111) ARTICLE IV CONSTRUCTION OF PUBLIC INFRASTRUCTURE IMPROVEMENTS Section 4.1. General Considerations In consideration of the Developer's promise to cause to be constructed the Public Infrastructure Improvements, the City agrees, subject to Section 4.4 hereof, to reimburse the Developer for the Cost of the Work in accordance with this Agreement. Section 4.2. Construction of the Public Infrastructure Improvements The Developer covenants and agrees that it will cause to be constructed and installed all of the Public Infrastructure Improvements in accordance with this Agreement and the Construction Documents. Unless the City consents in writing to a different date, which consent shall not be unreasonably withheld or delayed, the Developer agrees to use its best efforts to complete the construction of all of the Public Infrastructure Improvements by 1 20 . The Developer shall supervise, perform and direct the Work using its best skill and attention utilizing qualified personnel, and in accordance with the standards of care normally exercised by construction organizations performing similar work. The Developer shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures for coordinating all portions of the Work. The Developer shall submit the names of the subcontractors it proposes to use, a list of the suppliers of materials and equipment it proposes to use, and a list of such materials including the manufacturer thereof. Under no circumstances will the Developer propose to use any materials or equipment which is not specified. The City will promptly reply to the Developer in writing stating whether or not the City has reasonable objection to any such proposed person or entity. The Developer agrees that the Public Infrastructure Improvements, including all rights - of -way and easements associated therewith, including those identified on EXHIBIT B -2 (which is attached hereto and incorporated herein by reference), shall be dedicated for public use upon completion and acceptance as provided in Sections 4.3 and 4.4 hereof. Section 4.3. Completion of the Public Infrastructure Improvements The Public Infrastructure Improvements shall be deemed completed upon fulfillment of the following conditions: (a) Receipt of written notice (the `Developer's Completion Certificate') from the Authorized Developer Representative that the Public Infrastructure Improvements have been completed and are ready for final acceptance by the City, which notice shall (i) describe all property acquired or installed as part of the Public Infrastructure Improvements; (ii) state the Cost of the Work, and (iii) state and shall constitute the Developer's representation that the construction, improvement and equipping of the Public Infrastructure Improvements have been completed substantially in accordance with the Construction Documents, all costs then due and payable in connection therewith have been -9- paid, there are no mechanics' liens or to its knowledge, after reasonable inquiry, any basis for such liens, and all obligations, costs and expenses in connection with the Public Infrastructure Improvements have been paid or discharged. (b) Receipt from the Engineer of a final Certificate of Completion (the "Engineer's Completion Certificate ") stating that to the best of the Engineer's knowledge, information and belief, and on the basis of the Engineer's on -site visits and inspections, that the Public Infrastructure Improvements have been satisfactorily completed in accordance with the terms and conditions of the Construction Documents, including all punch list items, that the construction, improvement and equipping of the Public Infrastructure Improvements have been accomplished in a manner that conforms to all then applicable governmental laws, rules and regulations; and that the Public Infrastructure Improvements have been approved by the relevant public authorities. Section 4.4. Acceptance of the Public Infrastructure Improvements The City shall have no obligation to accept the Public Infrastructure Improvements until (a) the Public Infrastructure Improvements have been satisfactorily completed in accordance with the Construction Documents, as evidenced by the Engineer's Completion Certificate and properly dedicated as public rights -of -way and easements to the City; (b) the City has received the Developer's Completion Certificate, the Engineer's Completion Certificate, copies of the approval letters issued by the public authorities as referenced in Section 4.3 herein, and all documents and instruments to be delivered to the City pursuant to the Construction Documents and; (c) the City has received evidence satisfactory to it that all liens on the Public Infrastructure Improvements, including, but not limited to tax liens, the lien of any mortgage, and any mechanic's liens, have been or shall have been, released, or with respect to mechanic's liens, security therefor has been provided pursuant to Section 5.8 hereof. The City agrees to accept the Public Infrastructure Improvements and the rights -of -way allocable thereto upon satisfaction of the conditions listed in (a) though (c) of the immediately preceding sentence. The acceptance by the City of the Public Infrastructure Improvements shall not relieve the Developer of its responsibility for defects in material or workmanship as set forth in Section 5.10. hereof. Section 4.5. Extensions of Time If the Developer or the City is delayed in the commencement or progress of its obligations hereunder by a breach by the other Party of its obligations hereunder, or by failure of the Engineer to act as provided in this Agreement, or by Force Majeure, then the time for performance under this Agreement by the Party so delayed shall be extended for such time as is commercially reasonable under the circumstances. Section 4.6. Chances in the Work After the execution of this Agreement, and without invalidating this Agreement, the Developer, the City and the Engineer by written agreement (a "Change Order") may agree to changes in the Work. Changes in the Work shall be performed under applicable provisions of this Agreement and the Construction Documents, unless otherwise provided in the Change Order. A Change Order shall be in the form of a written instrument prepared by the Engineer and signed by the Authorized City Representative, the Authorized Developer Representative and the Engineer, stating their agreement upon (a) the change in the Work, (b) any adjustment of the -10- Cost of the Work, and (c) any extension of the time for performance under this Agreement. The Developer and the City agree that the unit prices contained in the Budget shall be used as a benchmark in computing the increased Costs of the Work associated with a Change Order except that the unit price may be adjusted if the cost of an item for which a unit price is stated changes substantially so that application of the unit price to the quantities of work proposed will create an undue hardship on either of the Parties. Any increase in the Cost of the Work approved in accordance with this Agreement shall be reflected in a revised budget, which thereafter shall be the `Budget' for all purposes of this Agreement. (END OF ARTICLE IV) _11_ ARTICLE V FURTHER PROVISIONS RELATING TO THE CONSTRUCTION OF THE PUBLIC INFRASTRUCTURE IMPROVEMENTS Section 5.1. Construction Documents The Developer is causing to be prepared the Construction Documents, which shall be in a form satisfactory to the Authorized City Representative and the Developer. It is the intent of the Construction Documents to accomplish a complete and first grade installation in which there shall be installed new products of the latest and best design and manufacturer, and workmanship shall be thoroughly first class, executed by competent and experienced personnel. Details of preparation, construction, installation, and finishing encompassed by the Construction Documents shall conform to the best practices of the respective trades, and that workmanship and construction methods shall be of highest quality so as to accomplish a neat and quality finished job. Any working drawings, plans and specifications prepared in connection with the Work (collectively, the `Drawings and Specifications ") and that comprise the Construction Documents are instruments of service through which the Work to be executed is described. The Developer may retain one record set. The City shall own the copyrights on the Drawings and Specifications and will retain all common law, statutory and other reserved rights, in addition to the copyrights. All copies of the Drawings and Specifications, except the record set of the Developer, shall be returned or suitably accounted for to the City, on request, upon final completion of the Public Infrastructure Improvements, and the copy thereof furnished to the Developer is for use solely with respect to the Public Infrastructure Improvements. They are not to be used by the Developer on other projects without the specific written consent of the City. The Developer is authorized to use and reproduce applicable portions of the Drawings and Specifications appropriate to the execution of obligations with respect to the Public Infrastructure Improvements; provided, however, that any reproduction and distribution of copies of the Drawings and Specifications by the Developer to the extent necessary to comply with official regulatory requirements or obligations of law shall not be construed as an infringement of the copyrights or other reserved rights of the City with respect to the Drawings and Specifications. All copies made under this authorization shall bear the statutory copyright notice, if any, shown on the Drawings and Specifications. Section 5.2. Prevailing Wage The City designates its as the prevailing wage coordinator for the Public Infrastructure Improvements (the `Prevailing Wage Coordinator "). The Developer acknowledges and agrees that the Public Infrastructure Improvements are subject to the prevailing wage requirements of Chapter 4115 of the Ohio Revised Code and all wages paid to laborers and mechanics employed on the Public Infrastructure Improvements shall be paid at not less than the prevailing rates of wages of laborers and mechanics for the classes of work called for by the Public Infrastructure Improvements, which wages shall be determined in accordance with the requirements of that Chapter 4115. The Developer shall comply, and the Developer shall require compliance by all contractors and shall require all contractors to require compliance by all subcontractors working on the Public Infrastructure Improvements, with all applicable requirements of that Chapter 4115, including any necessary posting requirements. The Developer (and all contractors and subcontractors thereof) shall cooperate with the Prevailing Wage Coordinator and respond to all reasonable requests by the Prevailing Wage Coordinator when the Prevailing Wage -12- Coordinator is determining compliance by the Developer (and all contractors and subcontractors thereof) with the applicable requirements of that Chapter 4115. The Prevailing Wage Coordinator shall notify the Developer of the prevailing wage rates for the Public Infrastructure Improvements. The Prevailing Wage Coordinator shall notify the Developer of any change in prevailing wage rates within seven working days of receiving notice of such change from the Director of the Ohio Department of Commerce. The Developer shall immediately upon such notification (a) insure that all contractors and subcontractors receive notification of any change in prevailing wage rates as required by that Chapter 4115; (b) make the necessary adjustment in the prevailing wage rates and pay any wage increase as required by that Chapter 4115 and; (c) insure that all contractors and subcontractors make the same necessary adjustments. The Developer shall, upon beginning performance of this Agreement, notify the Prevailing Wage Coordinator of the commencement of Work, supply to the Prevailing Wage Coordinator the schedule of the dates during the life of this Agreement on which the Developer (or any contractors or subcontractor thereof) is required to pay wages to employees. The Developer (and each contractor or subcontractor thereof) shall also deliver to the Prevailing Wage Coordinator a certified copy of its payroll within two weeks after the initial pay date, and supplemental reports for each month thereafter and in connection with any Written Requisition which shall exhibit for each employee paid any wages, the employee's name, current address, social security number, number of hours worked during each day of the pay periods covered and the total for each week, the employee's hourly rate of pay, the employee's job classification, fringe payments and deductions from the employee's wages. The certification of each payroll shall be executed by the Developer (or contractor, subcontractor, or duly appointed agent thereof, applicable) and shall recite that the payroll is correct and complete and that the wage rates shown are not less than those required by this Agreement and Chapter 4115 of the Ohio Revised Code. The Developer shall provide to the Prevailing Wage Coordinator a list of names, addresses and telephone numbers for any contractors or subcontractors performing any Work on the Public Infrastructure Improvements as soon as they are available, and the name and address of the bonding/surety company and the statutory agent (if applicable) for those contractors or subcontractors. The Developer shall not contract with any contractor or subcontractor listed with the Ohio Secretary of State for violations of Chapter 4115 of the Ohio Revised Code pursuant to Section 4115.133 of the Ohio Revised Code. Prior to final payment under this Agreement, the Developer (and any contractor or subcontractor thereof) shall submit to the Prevailing Wage Coordinator the affidavit required by Section 4115.07 of the Ohio Revised Code. Section 5.3. Traffic Control Requirements The Developer shall be responsible for ensuring the provision, through contractors or otherwise, of all traffic control devices, flaggers and police officers required to properly and safely maintain traffic during the construction of the Public Infrastructure Improvements. All traffic control devices shall be furnished, erected, maintained and removed in accordance with the Ohio Department of Transportation's "Ohio Manual of Uniform Traffic Control Devices" related to construction operations. -13- Section 5.4. Equal Opportunitv Clause The Developer will, in all solicitations or advertisements for employees placed by or on behalf of the Developer, state that the Developer is an equal opportunity employer. The Developer shall require all contractors and shall require all contractor's subcontractors to include in each contract a summary of this equal opportunity clause. Section 5.5. Insurance Requirements The Developer shall furnish proof to the City at the time of commencing construction of the Work of possession of comprehensive general liability insurance naming the City and its authorized agents as an additional insured. The minimum limits of liability for the required insurance policies shall not be less than the following unless a greater amount is required by law: (a) Commercial General Liability ( "CGL'): Bodily injury (including death) and property damage with a combined single limit of $1,000,000 each occurrence, with a $2,000,000 aggregate; $100,000 for damage to rented premises (each occurrence); $5,000 for medical expenses (person); and $1,000,000 for personal and advertising injury. CGL shall include (i) premises- operations, (ii) explosion and collapse hazard, (iii) underground hazard, (iv) independent contractors' protective, (v) broad form property damage, including completed operations, (vi) contractual liability, (vii) products and completed operations, with $2,000,000 aggregate and to be maintained for a minimum period of one (1) year after acceptance of the Public Infrastructure Improvements pursuant to Section 2.4, (viii) personal injury with employment exclusion deleted, (ix) owned, non - owned, and hired motor vehicles, and (x) stopgap liability for $100,000 limit. The general aggregate shall be endorsed to provide that it applies to the Work only. (b) Automobile liability, covering all owned, non - owned, and hired vehicles used in connection with the Work: Bodily injury (including death) and property damage with a combined single limit of $1,000,000 per person and $1,000,000 each occurrence. (c) Such policies shall be supplemented by an umbrella policy, also written on an occurrence basis, to provide additional protection to provide coverage in the total amount of $5,000,000 for each occurrence and $5,000,000 aggregate. The Developer's insurance shall be primary to any insurance maintained by the City. (d) The Developer shall obtain an additional named insurance endorsement for the CGL and automobile liability coverage with the following named insureds for covered claims arising out of the performance of the Work under the Construction Documents: (i) the City of Dublin; (ii) Dublin City Council members, executive officers, and employees; and (iii) the Engineer and its employees. -14- Each policy of insurance and respective certificate of insurance shall expressly provide that no less than 30 days prior written notice shall be given to City in the event of cancellation, non - renewal, expiration or material alteration of the coverage contained in such policy. (e) Insurance policies shall be written on an occurrence basis only. (f) Products and completed operations coverage shall commence with the certification of the acceptance of the Public Infrastructure Improvements pursuant to Section 4.4 and shall extend for not less than two years beyond that date. (g) The Developer shall require all contractors and subcontractors to provide workers' compensation, CGL, and automobile liability insurance with the same minimum limits specified herein, unless the City agrees to a lesser amount. Section 5.6. City Income Tax Withholdings The Developer shall withhold and pay, shall require all contractors to withhold and pay, and shall require all contractors to require all subcontractors to withhold and pay, all City income taxes due or payable with respect to wages, salaries, commissions and any other income subject to the provisions of Chapter 35 of the Dublin City Code. Section 5.7. Compliance with Occupational Health and Safety Act of 1970 The Developer and all contractors and subcontractors shall be solely responsible for their respective compliance with the Occupational Safety and Health Act of 1970 under this Agreement. Section 5.8. Provision of Securitv for Mechanic's Liens To the extent any materialman, contractor, or subcontractor files and records a mechanic's lien against the Public Infrastructure Improvements, the Developer shall, or shall require the appropriate contractor to, provide any security required by Section 1311.11 of the Ohio Revised Code to cause that mechanic's lien to be released of record with respect to the Public Infrastructure Improvements. Section 5.9. Securitv for Performance The Developer shall furnish or require all contractors performing Work to furnish prior to commencement of construction of the Public Infrastructure Improvements a surety bond that shall name the Developer and the City as obligees in the form provided by Section 153.57 of the Ohio Revised Code. The bond shall cover all Costs of the Work, including a guarantee period of one (1) year set forth in Section 5.10 hereof. Any bond shall be executed by sureties that are licensed to conduct business in the State as evidenced by a Certificate of Compliance issued by the Ohio Department of Insurance. All bonds signed by an agent must be accompanied by a power of attorney of the agent signing for the surety. If the surety of any bond so furnished by a contractor declares bankruptcy, become insolvent or its right to do business is terminated in Ohio, the Developer, within five (5) days thereafter, shall substitute another bond and surety or cause the contractor to substitute another bond and surety, both of which shall be acceptable to the City and the Developer. The Developer shall provide to the City prior to commencement of any Work by any contractor a copy the security for performance provided by the Developer or contractor pursuant to this Section. - 15 - Section 5.10. Further Developer Guaranties Relating to the Public Infrastructure Improvements The Developer guarantees that the Work and any materials and equipment incorporated into the Work will be free from defects, including defects in the workmanship or materials (without regard to the standard of care exercised in its performance) for a period of one (1) year after final written acceptance of the Work by City or such longer period as specified by the Construction Documents. The surety bond of the Developer shall remain in effect until the expiration of the guarantee period. The guarantee provided in this Section shall be in addition to, and not in limitation of, any other guarantee, warranty or remedy provided by law, a manufacturer or the Construction Documents. The Developer shall, prior to installing material and/or equipment which is subject to a warranty, provide a copy of the warranty to the Engineer and City for review and approval. If defective Work becomes apparent within the warranty or guarantee period, the City shall promptly notify the Developer in writing and provide a copy of said notice to the Engineer. Within ten (10) days of receipt of said notice, the Developer shall visit the project in the company of one or more representatives of the City to determine the extent of the defective work. The Developer shall promptly repair or replace the defective Work, including all adjacent Work damaged as a result of such defective Work or as a result of remedying the defective Work. If the defective Work is considered by the City to be an emergency, the City may require the Developer to visit the project within one (1) day of receipt of said notice. The Developer shall be fully responsible for the cost of temporary materials, facilities, utilities or equipment required during the repair or replacement of the defective Work. If the Developer does not promptly repair or replace defective Work, the City shall repair or replace such defective Work and charge the cost thereof to the Developer or the Developer's surety. Work which is repaired or replaced by the Developer shall be inspected and accepted by the Engineer and City and shall be guaranteed by the Developer for one (1) year from the date of acceptance of the corrective work by the City. Section 5.11. Developer Representations as to Personal Propertv Taxes The Developer represents that at the time of the execution of this Agreement, the Developer was not charged with any delinquent personal property taxes on the general tax list of personal property of the County. Further, the Developer shall require all contractors to execute an affidavit in the form EXHIBIT C (which is attached hereto and incorporated herein by reference), a copy of which certificate shall be delivered to the Authorized City Representative prior to the commencement of any work by that contractor or subcontractor. (END OF ARTICLE V) _16_ ARTICLE VI PAYMENT OF COST OF THE WORK Section 6.1. Deposit of Monies in the TIF Fund Pursuant to the TIF Ordinance, the City has established the TIF Fund for the payment of the Cost of the Work. Upon the execution of this Agreement, the City covenants and agrees to deposit monies into the TIF Fund in an amount equal to the estimated Cost of the Work for the Public Infrastructure Improvements, and thereafter, to deposit into the TIF Fund all monies required to be deposited therein pursuant to the TIF Ordinance. Promptly following the execution and delivery of any Change Order, the City agrees to deposit additional monies into the TIF Fund as may be required to pay the adjusted Cost of the Work. Section 6.2. Disbursements from the TIF Fund The City agrees to pay the Cost of the Work in accordance with the Construction Documents, including any retainage as provided for therein, based on Written Requisitions executed by the Authorized Developer Representative substantially in the form of EXHIBIT D (which is attached hereto and incorporated herein by reference). Each Written Requisition shall be accompanied by conditional lien waivers and releases from all subcontractors and suppliers to be paid from the payment resulting from the Written Requisition, and unconditional lien waivers and releases from all subcontractors and suppliers for which Developer was required to provide a conditional lien waiver in connection with a prior Written Requisition. The period covered by each Written Requisition shall be one calendar month, ending on the last day of the month. The Developer shall deliver payment requests to the City no more often than once each calendar month during the course of construction of the Work. Unless the City objects to any such Written Requisition, the City shall, within twenty (20) business days following receipt of the Written Requisition, pay to the Developer the amounts reflected in the Written Requisition and the Developer shall promptly pay to the applicable subcontractors and suppliers the amounts payable to such subcontractors and suppliers. The City may object to all or a part of a Written Requisition by giving written notice of and specific reasons for the objection(s) and of the amounts subject to the objection(s) within ten (10) business days of receipt. Objections may be made because of a good faith belief that there is a material defect in Work or the percentage of completion of the Work in question in the Written Requisition is materially overstated. Any amount objected to shall not be payable until the objection is resolved. All disbursements requested pursuant to this section shall be subject to the prior approval of the City Engineer and the Director of Finance. All disbursements pursuant to this Section shall be made solely from the monies on deposit in the TIF Fund. The Developer acknowledges and agrees that the City shall be under no obligation to reimburse the Developer or otherwise remit payment for any amount in excess of the Cost of the Work as set forth in the Budget, as such amount may be adjusted from time to time in accordance with this Agreement. Upon request of the Authorized City Representative, Developer shall furnish invoices or other documentation in connection with each such Written Requisition. Any Written Requisition under this Section 6.2 may be in the form of a communication by telegram, telex, or facsimile transmission, but if in such form, it shall be promptly confirmed by a Written Requisition executed by an Authorized Developer Representative and approved by the Authorized City Representative. -17- In paying any Written Requisition under this Section 6.2, the City shall be entitled to rely as to the completeness and accuracy of all statements in such Written Requisition upon the approval of such Written Requisition by an Authorized Developer Representative, execution thereof, and communication thereof by telegram, telex, or facsimile transmission, to be conclusive evidence of such approval, and the Developer shall indemnify and save harmless the City from any liability incurred in connection with any Written Requisition so executed or communicated by an Authorized Developer Representative. The Developer shall not submit or cause to be submitted to the City any Written Requisition pursuant to this Section 6.2 and shall have no claim upon any monies in the TIF Fund, so long as there shall have occurred and be continuing any Event of Default. Section 6.3 Final Disbursement Upon final completion of the Work and acceptance by the City, the Developer shall submit to City a final Written Requisition for payment of all remaining sums. Payment of the final payment shall be subject to the provisions of this Article VI. Developer shall deliver to City copies of unconditional final lien waivers executed by all subcontractors, suppliers or lien claimants along with the final Written Requisition. Section 6.4 Tax Covenants The obligation of the City to make payments to the Developer pursuant to this Agreement is not an obligation or pledge of any moneys raised by taxation and does not represent or constitute a debt or pledge of the faith and credit of the City. Except for the payments from the TIF Fund and in the aggregate amount described in this Agreement, the Developer shall receive no other monies from the City in connection with the construction of the Public Infrastructure Improvements. The parties hereto intend that the interest payable by the City hereunder be exempt from federal income taxation and taxation by the State of Ohio, and the City covenants that it will, to the extent possible, comply with all applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code "), to obtain and maintain the Federal and State of Ohio tax exemptions for such interest, including any expenditure requirements, investment limitations, rebate requirements or use restrictions. Without limiting the generality of the foregoing, the City covenants that it will restrict the use of any "proceeds" of this Agreement (as defined in the Code) in such manner and to such extent, if any, as may be necessary after taking into account reasonable expectations at the time the City's obligation is incurred, so that this Agreement will not constitute an "arbitrage bond" under Sections 103(b)(2) and 148 of the Code and will timely file an IRS Form 8038 -G with respect to this Agreement. (END OF ARTICLE VI) -18- ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1. General Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by either Party 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 (30) 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 following remedies may be pursued: (i) 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; and (ii) in addition, if the default or breach is a failure of the Developer to achieve completion of the Work by the date set forth in Section 4.2 herein, as adjusted by Change Order, then City may proceed to perform the Developer's obligations under this Agreement, and pay the costs thereof from the TIE Fund up to the amount designated for the Cost of the Work. The Developer and its surety shall be responsible for any deficiency in paying for curing the breach that cannot be covered out of the TIE Fund. Section 7.2. Other Rights and Remedies; No Waiver by Delay The Parties 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 constrained, so as to avoid the risk of being deprived of or limited in the exercise of the remedy provided in this Agreement because of concepts of waiver, laches, or otherwise, to exercise such remedy at 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 to this Agreement or with respect to the particular default except to the extent specifically waived in writing. Section 7.3. Force Maieure Except as otherwise provided herein, no Party 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 -19- the benefit of the provisions of this Section 7.3 shall within fourteen (14) days after the beginning of such enforced delay, notify the other Party in writing thereof and of the cause thereof and of the duration thereof or, if a continuing delay and cause, the estimated duration thereof, and if the delay is continuing on the date of notification, within thirty (30) days after the end of the delay, notify the other Party in writing of the duration of the delay. (END OF ARTICLE V11) _20_ ARTICLE VIII DISPUTE RESOLUTION PROVISIONS Section 8.1. Notice and Filing of Requests Any request by the City or the Developer for amendment of the terms of this Agreement, including without limitation, for additional funds or time for performance shall be made in writing and given prior to completion of the Public Infrastructure Improvements. Section 8.2. Request Information In every written request given pursuant to Section 8.1 hereof, the party giving notice shall provide the nature and amount of the request; identification of persons, entities and events responsible for or related to the request; and identification of the activities on the applicable schedule affected by the request. Section 8.3. Meeting Within ten (10) days of receipt of the request given pursuant to Section 8.1 hereof, the parties shall schedule a meeting in an effort to resolve the request and shall reach a decision on the request promptly thereafter or reach a decision on the request without a meeting, unless a mutual agreement is made to extend such time limit. The meeting shall be attended by persons expressly and fully authorized to resolve the request on behalf of the City and the Developer. Any decision on the request shall be made to the mutual reasonable satisfaction of the parties. Section 8.4. Mediation. If no decision is reached within 30 days of the date of the meeting held pursuant to Section 8.3 hereof, the parties may submit the matter to mediation, upon written agreement between them, or exercise any other remedy permitted to them at law or in equity. Section 8.5. Performance The City and the Developer shall proceed with their respective performance of this Agreement during any dispute resolution process, unless otherwise agreed by them in writing. (END OF ARTICLE VIII) _21_ ARTICLE IX MISCELLANEOUS Section 9.1. Notice 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. Section 9.2. Extent of Covenants; No Personal Liability All covenants, obligations and agreements of the Parties contained in this Agreement shall be effective to the extent authorized and permitted by applicable law. No such covenant, obligation or agreement shall be deemed to be a covenant, obligation or agreement of any present or future member, officer, agent or employee of any Party other than his or her official capacity, and neither the members of the legislative body of City nor any official executing this Agreement shall be liable personally under this Agreement or be subject to any personal liability or accountability by reason of the execution thereof or by reason of the covenants, obligations or agreements of the Parties contained in this Agreement. Section 9.3. Severabilitv If any provision of this Agreement, or any covenant, obligation or agreement contained herein is determined by a court to be invalid or unenforceable, that determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained herein. That invalidity or unenforceability shall not affect any valid and enforceable application thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. Section 9.4. Binding Effect Against Successors and Assigns The provisions of this Agreement shall be binding upon the successors or assigns of the Parties. Section 9.5. 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 9.6. 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. -22- Section 9.7. Executed Counterparts This Agreement may be executed in several counterparts, each of which shall be deemed to constitute an original, but all of which together shall constitute but one and the same instrument. It shall not be necessary in proving this Agreement to produce or account for more than one of those counterparts. Section 9.8. 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 any of the Parties and their respective agents and employees, arising out of or relating to this Agreement or its breach will be decided in a court of competent jurisdiction within Franklin County, Ohio. Section 9.9. Assignment This Agreement may not be assigned without the prior written consent of all non - assigning Parties. Section 9.10. Survival of Representations and Warranties All representations and warranties of the Parties in this Agreement shall survive the execution and delivery of this Agreement. Section 9.11 Declaration Regarding Material Assistance /Nonassistance To a Terrorist Organization Developer hereby warrants and represents that neither it nor any person, company, affiliated group or organization that holds, owns or otherwise has a controlling interest in Developer has provided material assistance to an organization listed on the U.S. Department of State Terrorist Exclusion List. Developer acknowledges receipt of a current version of the Terrorist Exclusion List, and Developer shall provide to Client a fully completed and executed Declaration Regarding Material Assistance/Nonassistance to a Terrorist Organization. END OF ARTICLE IX - SIGNATURE PAGES TO FOLLOW) -23- IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as of the date first written above. CITY OF DUBLIN, OHIO Printed: Jane Brautigam Title: Citv Manager Approved as to Form: C Printed: Stephen J. Smith Title: Director of Law -24- IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as of the date first written above. STAVROFF LAND & DEVELOPMENT, INC. Lo Printed: Title: -25- 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 2007 under the foregoing Agreement have been appropriated lawfully for that purpose, and are in the Treasury of the City or in the process of collection to the credit of an appropriate fund, free from any previous encumbrances. This Certificate is given in compliance with Sections 5705.41 and 5705.44, Ohio Revised Code. Dated: .2007 Marsha Grigsby Director of Finance City of Dublin, Ohio -26- * * "Draft Draft of January 17, 2007— For Discussion Purposes Only EXHIBIT A BUDGET FOR PUBLIC INFRASTRUCTURE IMPROVEMENTS A -1 * * "Draft Draft of January 17, 2007— For Discussion Purposes Only EXHIBIT B -1 PUBLIC INFRASTRUCTURE IMPROVEMENTS The Public Infrastructure Improvements include: • extending Banker Drive east from Shamrock Boulevard to the existing Banker Drive termini, including the acquisition of any necessary right -of -way from the existing residential properties. • extending Stoneridge Lane west from its existing termini. • constructing a single pedestrian pathway between Sharp Lane and State Route 161. • eliminating the existing curb cuts along State Route 161 adjacent to the Parcels. B -1 -1 * * "Draft Draft of January 17, 2007— For Discussion Purposes Only EXHIBIT B -2 SITE PLAN FOR PUBLIC INFRASTRUCTURE IMPROVEMENTS B -2 -1 * * "Draft Draft of January 17, 2007— For Discussion Purposes Only EXHIBIT C PERSONAL PROPERTY TAX AFFIDAVIT (O.R.C.§ 5719.042) State of Ohio County of ss: being first duly sworn, deposes and says that he /she is the (Name) of (Title) (Name and Address of Contractor) (the "Contractor ") and as its duly authorized representative, states that effective this day of 200 , the Contractor: O is charged with delinquent personal property taxes on the general list of personal property as set forth below: Coun Amount (include total amount penalties and interest thereon) County $ County $ County $ O is not charged with delinquent personal property taxes on the general list of personal property in any Ohio county. (Affiant) Sworn to and subscribed before me by the above -named affiant this day of 1 200 . (Notary Public) My commission expires 200 C -1 * * "Draft Draft of January 17, 2007— For Discussion Purposes Only EXHIBIT D WRITTEN REQUISITION No. City of Dublin, Ohio 5200 Emerald Parkway Dublin, Ohio 43017 Attention: City Manager Attention: Authorized City Representative Subject: Certificate and Request for Disbursement of Funds from the Shamrock Crossing Project Municipal Public Improvement Tax Equivalent Fund You are hereby requested to disburse from the TIF Fund described above, which was created by Ordinance No. , and in accordance with the provisions of Section 6.2 of the Infrastructure Agreement, dated , 2007 (the "Agreement") by and between the City and Stavroff Land & Development, Inc. (the Developer"), the amount of $ as more fully set forth on Schedule A attached hereto to be paid pursuant to this Written Requisition No. to the Developer at All capitalized terms not otherwise defined in this Written Requisition have the meanings assigned to them in the Agreement. The undersigned Authorized Developer Representative does hereby certify in compliance with Section 6.2 of the Agreement that: (i) I have read the Agreement and definitions relating thereto and have reviewed appropriate records and documents of Developer relating to the matters covered by this Written Requisition. (ii) The amount and nature of the portion of the Cost of the Work requested to be paid are shown on Schedule A attached hereto; (iii) The disbursement herein requested is for an obligation properly incurred, is a proper charge against the TIF Fund as a Cost of the Work, has not been the basis of any previous withdrawal from the TIF Fund and was made in accordance with the Construction Documents; (iv) The Public Infrastructure Improvements have not been materially injured or damaged by fire or other casualty in a manner which, if not repaired or replaced, would materially impair the ability of the Developer to meet its obligations under the Agreement; (v) The Developer is in material compliance with all provisions and requirements of the Agreement, including, but not limited to, all prevailing wage requirements; (vi) No Event of Default set forth in Article VII of the Agreement, and no event which but for the lapse of time or the giving of notice or both would be such an Event of Default, has occurred and is continuing; D -1 * * "Draft Draft of January 17, 2007— For Discussion Purposes Only (vii) Attached hereto as Schedule B are lien waivers from any materialmen, contractors and subcontractors who have provided services or materials to the Public Infrastructure Improvements as required by Section 6.2 of the Agreement, and the Developer further acknowledges its obligation to require, or require provision of, certain security pursuant to Section 5.8 of the Agreement in the event any mechanic's liens are filed in connection with the Public Infrastructure Improvements; (viii) The Public Infrastructure Improvements are being and have been installed substantially in accordance with the Construction Documents for the Public Infrastructure Improvements and all materials for which payment is requested have been delivered to and remain on the Public Infrastructure Improvements Site; (ix) The payment requested hereby does not include any amount which is not entitled to be retained under any holdbacks or retainages provided for in any agreement; (x) The Developer has asserted its entitlement to all available manufacturer's warranties to date upon acquisition of possession of or title to such improvements or any part thereof which warranties have vested in Developer and shall be wholly transferable to the City; and (xi) All proceeds of the TIE Fund heretofore disbursed have been spent in accordance with the Written Requisition applicable thereto. EXECUTED this day of 1 200 C Authorized Developer Representative D -2