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56-73 Ordinance .. " v" . . "- ~. ...,~ ORDINANCE NO. ~-75 . VILLAGE OF DUBLIN. OInO AN ORDINANCE AUTHORIZING THE VILLAGE ADMINISTRATOR AND THE CLERK-TREASURER TO ENTER INTO A CONTRACT WITH THE WESTERN ELECTRIC COMPANY. AMERICAN URBAN CORPORATION AND MUIR FIE LD. LTD. ,- ~ BE IT ORDAINED by the Council of the Village of Dublin, State of I .~ Ohio, of the elected members concurring: SECTION 1. That the Village Administrator and the Clerk- Treasurer be, and they hereby are. authorized, upon approval of same by the City of Columbus and legal approval. to enter into a contract with Western Electric Company. American Urban Corporation and Muirfield, Ltd on the terms set forth in the attached draft. which attached draft is hereby incorporated into and made a part of this ordinance. SECTION 2. That this ordinance shall take effect and be in force from and after the earliest period allowed by law. '" -""""". "'"'" . - .. . Passed this 15th day of December, 1973. :~ ,'~ ---,- r-'~ .. ,',".. . ,", ,Qi?.V" \~.~ . . . . . . . . :Village Clerk ~()~ Clerk - Treasurer ".... ,,;ilIo" , . . SEWER DEVELOPMENT AGREEMENT J . , . 7 ~ . . ,. . , This agreement is made as of the 14th day of January, 1974, by and b~tv.rcen Western Electric Company, Incorporated ("Western Electricli), American Urban Corporation ("American Urbanlf), Muirfield Ltd. ("Muirfieldlf ). (Western Electric, American Urban and 11uirfield being collectively r-eferrcQ to as the lIprivate parties"), and the Village of Dublin (" Dublin'1 ), which hereby agree as follows: ~l. Construction of Pump Station and Force Mains from High Street to Martin Road. As soon as practicable after the execution hereof, Muirfield ,.... shall, ~n behalf of the parties hereto, arrange and contract for the engineering ~ ? and prompt construction of a la-inch and a 12-inch sanitary sewer force main " .. between the locations designated "A" and "B" and a 24" gravity sewer between - the locations designated "X" and "y" on the attached map (the "Map"), which Map is incorporated herein by this reference, and for the a cquis ition of a site for, and the engineering and prompt construction of, a pump station at the location designated If A" on the Map. At such later time as any of the parties hereto shall requeRt t1:at the above-described 12-inch force main be put into service, Muidield Ehall, on behalf of the parties, contract for its connection and the installation of any purnps and additional equiplnent required pursuant to the engineering pIa.ns prepared in connection with this agreement. All out-of-pocket costs of trte acqu.iB~tion, engineering, construction and connection and installation de., scnbed in this ~ 1, excluding fces to be paid to Muirfield, shall be paid p;:-omptly as the same are. billed to the following respective parties, in the follov;ing pro- portions: Western Electric - 9.43%; American Urban - 28.30%; and Muidield - 62.27%, For Muirfield's services in acquiring the site, arranging for engineering work, letting the construction contract or contracts, and arranging for conne c.. tioD and installation, Westcl":l Electric and American Urban shall each pay Muir., ",.... field 2, fec equ.al to 10% of their respective allocable shares of the above-mention.~d CO;;;l:S. Such fees shall be payable to Muirfield at the times of, but in addition to, payments of the irrespective allocable shares of such other costs. " .... ~ 2. Construction of Force M21n from 1'-/1artin Road to C2se R ;)c;,d. ------,..---.- ..~. --_.......:..;._,_:~- As.:,oGll. as practiCable cuter the executi.on hereof, Muirfield 5h2.2.1, c.n ~)~il~3..1.r of the parties hel";~to, obtain the necessary easelnents for, Cl.nd arran;?e rL1d contract fl)!' the erlginee ring and- hitul'e construction of a 10- inch s anitar y sewer force !118,in between the locations designated "B" and "C" on the :tviap. ],t ~;uch tiY;.J.e as anyone of the private parties so requests, Muirfield shz.ll on behalf oi the parties to this agreement direct the contractor to conl1T1cn.ce constructicm of the above-described la-inch force Inain. All out-oi-pocket CDstf:; of obtaining the necessary easements, and the engineering and COn81..1''-1C- tior- of the force mabl desCl. ibed in this ~2, excluding fees to be paid to Mu.ir-- field, shall be p~~id. promptly as tbe same are billed to the follovving respective parties, in th,:: following proportions: Western Electric - 9.43%; American Urban - 28. 30 0/0; ~lnd 1\:1t,idicld - 62. 27%. For Muirfield's services in aota i11;n<,' the necessa:ry easen1.ents, ... t.J arranging for engineering work. and the letting of a construction contract or contracts, Western Electric and American Urban shall each pay Muirfield a fee equal to 10'10 of their respective allocable shares of the a1:">ove-nlentioned C()st~;. 81..:ch fees shall be payable to l-1"i-fie1d at !-;,-, _ .. \ l".....1. .... . ...1J.t...; thnes of, 1::,'Ut in addition to, payments of their respective allocable shares of - r such other costs. In the even!' that it is determined to the satisfaction of any of the pri- vate parties to this agreelnent that it is necessary to construct an additional '- force C',;:dn parall.';l to the force lnain constructed Dursuant to this ~2 then J...- ) Mui.die] cl shall, on behalf of the parries hereto, arrange and contract for the engineering and prompt construction of such an additional force main. Any di.sr)ltU~E: as to the ::'izing of the additional force main shall be cl,~terTnil1ed by 1: ',' , '} . ~ All ont-of.-pocket costs of engirl'~ering ar !LCr~'..t)orJ. p rocc (JU "e E; set tort 1 111 7. and construction t;hall be paid in the sar-ne proportions as the capacities or the rc spi,\:ti vc pri,',z,l (C p;:Lrtic~E pc'dici.p2ting in the cons truction of the addit:ion,.il force 1'11<-1 ~Il n,servc:d to Ul<.:om bear to the t.otal capacity of :such additj')'.JaJ force rnaln., and the par~iciDating p2.rties shall ea.ch pay Muir-Held a fee equal to 10% r 1 '. 11 ] . 1 01 Lflt:l,r rcspecl1..ie 8... UC~l. he s Jilre~; of t}le costs of ~;uch adclitirJnal. fcr::::c mC1',n. . ' " - . . . ~3. ConstrllctiGll of P1.lrne.Stat'ion and Force 1>.Iain Serving W'.:'stcrH , r Electric ProEe~.t~~:--;\3--;;'~~~l 2.s--prac!.iZ:~l;le aft~;~ the execution hereof, ivluidield shall, on behalf of Western Electric, arrange and contract for the engineering , and prompt construction of J. 4-inch sanitary sewer force main between the loca- tions designate d "D" and "EIl on the 1v1ap, and fa r a pump station at the location designated llD" on the Map. All out-of-pocket costs of r-ngineering and construc- tion of the pump station and force main described in this ~ 3, and the fee to be paid to Muirfield (which fee snall be in addition to all other costs), shall be paid by Western Electric promptly as the same are billed to it. For Muir- field's services in arranging for engineer ing work and the letting of a con- struction contract or contracts, }\'1uirficld1 s fee shall be an amount equal to ,..... 10% oj the above-mentioned costs. ~ f ~4o _~~~nf.!:ructi..?n o! Pnmp_Ei!E:tlon and Force Main Servil}g Western - Electr ic and .t".merican Urb~m P~.9pe1' !y. As soon as practicable after the execu- tion hereof, Muirfield shalt, on behalf of Western Electric and American Urban, arrange and contract for the engineering and prompt construction of an S'-inch ; sanitary sewer force n,ain between the locations designated "E" and IIX" on the Map, and for a pump station at the location designated "E" on the Map. All out- of -pocket costs of engineering and construction of the pump stati.on and force main described in this ~4, and the fee to be paid to lvluirfie1d (which fee shall be in addition to all other costs), shall be paid promptly as the same are bille d to the following respective parties, in the following proportions: Western Electric - 28.6% and American Urban - 71.4%. For Muirfield's services in arranging for engineering work and the let.ting of a construction contract or contracts, Western Electric and American Urban shall each pay Muirfield a fee equal to 10% of their respective allo cable shares of the above-m entioned costs. ~ 5. Construction of Pump f?~ation and Force Main Se rving Muirfield Prope !1Y.. As the sanle becornes neceSfjary for the developrnent of property owned hy lVIrd.rfie Id, 1v1ui.rfie1.cl shall arrange and contract for the engineeri.ng r- and construction of a pump station at H:c location designated 'IF" on the Map, and a sanitary sewer force main between the locations designated 'IF" and" x" on the Map. All oc:j--of-poc:k,:;t costs ofengin0ering "md construction of such \.. p1.unp station and force Hlain shall be paid by Mu.irfield. ~ ~ ~ 6. ~ascments, OwneE:~;~E-,_~d VIaint':.!lance. DUI)lin, Western Elec- tric and American Urban shall grant !:o Muirfield and to those with wholn M'uir- field contracts for thf~ const~ll~ _~.L!-l:~!2.~~.2:~~~:n.s :;p.C!p~mp statiol~~..",q<;." s cribcd he re in, temporary easements over the lands respectively owned by them in fee <?~._~:.~ dedi.~;:te(~~bt-''?~~~~~~I:~EE:.1~~li~i~~a''~~~ls, for the construction of such force Inain ar:-~ pum2 stations. Dublin shall, afte r the same have been constructed, own and shall operate, nlaintain, repair, and replace, as required, all force mains and pump stations constructed pursuant to < this agree-rnerLt. Western Electric, American Urban and Muirfield, shall trans- fer and convey to Duhlin, and the san1e shall be dedicated to public use, all force n1ains, purnp stations and other equiprnent installed pursuaEt to this ag:'ee- ment, together .with pernlanent eascrnents over the lands respectively owned by then1 , in fee or as dedicated right-oi-way or. over which they haye easements, for U{e cons tn:c:tion, operation., lllaillter:3-r1ce, repair, and replacement of acldi- tionallines adj~,-cent to tbo force nJ2.i.ns ues.::ribed herein. l\iotwithstanding anything i_Tl the foregoing to the contrary, the out-of.. ,..,...., pockt~t costs of operating, maintaining, :repairing, and replacing (to the extent t replaccnlent 01 any portion thereof shall be necessary for the continued opcr.- ~,' ation of tho system) the force Inains and p'lmp stations constructed pursuant to this agreou-;.ent shall be shared in the following propurtions: -- .Force 11'Jains aud pUlnp stations constructed pUl.suant to fol.ltj \\1 ifJ.g :; e C i.. i(, .I.;~ S : 1 ? 3 4 5 .... -----_._~ '--'- ~--_..- Western Electric 9.43% 100% 28. 6 % American Urban 28. 30% 71. <1% Muirfielcl 62.. 27r,l.j 100';) D\lOlul 10[)c/~ .. ..,,' . If any party sells a portion of its capacity to another party to this agreement or to a third party, then both the Seller and purchaser shall share such above-liste d portion of the maintenance cost in the same proportion as their respective retained or acquired capacity bears to the original capacity a110 ca ted to the Selle r . An escrow fund shall be established to provide for payment of the costs or operation, maintenance, and repair of tne iorce rnains and pump stations construc- ted pursuant to this agreen1ent. Prior to each calendar quarter, Dublin shall es- timate such costs for the next quarter and shall notify the various parties (and ,.... their assigns, in the event that such parties have sold a portion of their capac- ities) of their respective shares of such estimated costs; whereupon the respec- tive partie.s shall promptly p3.y to Dublin such estimated amounts which shall be '........ held in escro'vv and disbursed as such costs are actually incurred. As soon as practicable after the end of e,ach quarter, Dublin shall notify ea ch party of the actual amount of such costs and the parties shall promptly pay to Dublin their respective shares of any deficit. Any excess alnount remaining in the escrow account shall be credited to such costs for the succee ding quarter. ~ 7. Limitation on Taps. It is the intention of the parties that the force mains and pump stations constructed pursuant to ~ 1 of this agreement will make the fol1owing capacities available to the parties hereto. Capacitv Users Served ..,,-...-....-"-- . 3.3 cubic feet per second for use by Muirfield and its successors and assigns .5 cubic feet per second for use by Western Electric and its successors and assigns r 1.5 cubic feet pcr se cond for use by American Urban and its successors and assigns 0 '-' 5. 2 cubic feet per second for use by Dublin and its successors and assigns The parties may sell or assign all or portions of their respective cap3.cities to third parties, or to othe r parties to this agreement. No excess capacity shall be sold pursuant to ~lO, below, unless and until such time as the por- tion of the sewer systeln being constructed pursuant hereto between the lo- cation designated "B" 011 the Map and the East Branch of the Scioto Trunk has capacity equal to 01' greater than the Stlln of the individual capacities allocated to the respective parties ]:.lY this ~7, or until such time as the sewer systern constructed purSLwnt to this agreem<cnt is connected with a Colurnbus sewe l' system facility so that the amount of sewage capable of being dis charge d into the Colllrnbus system is equal to or greater than the sum of the individual capacities alloca.red to the respective parties by this ~? A ddit Lonall y, none 0 f the parties &ha11 perm,jt any taps i.nto any of the force Inains constructed pur- suant. to this 2.greerrlCnt, no t' shall any of the partie s do 0 r permit to b8 done anything with r.espect ,to such force rnail1.s, any gravity rn3,ins, or 3EY sewe l' lines or egu ipn1ent of any na ture whatsoever which would lin-lit the available capacity of the force Elains cl(~scribed herein, indudiI'g v,Iithout limitation on .'- the foregoing the issuance of any change orders, to less than those set forth in Exhibit B, AIEf.I, \vithout prior \vritt0n conscllt otherwisE.' by all of the parties hereto, none of the parties shall permit the lise, by thelnsclve~) or their assigns, .~ of capacity in exc(;s~~ of (.11c resppci.ive capa.cities set forth in E:y.hibit B. AllY contr\.)vcrsy c.t.rnong th(~ parties he:..-cto r.oncc'Orning the twe of the systern in viola- ti.on of the above-described lL."-'1itatimls or viilh regarrl ~o the size of a.ny additicmal force rnain to be constl'....lcted pur.suant to the peovLd.oaB of the second paragraph of ~2, above, shall be f:;(~ttled bi arbitration pursuant to the p:covisi.ons of Chap- tcr 271.1 of tIie Ohio Revi~;ed Code, by the majority vote 01 three arbitratorfj, all of whOln nll~3t he professional, .1 icensed engineers, one of whom sh::d.l bi' selected by [i),c; p2trLY rC'.lucFtlng arbitratioH: tIie second of \vhorn shan be se,. 10cted. by the pany or pa.:ti.es accused 01 vio.1atii"lg any of tIE; abcve-ckscJ:ibed ..~ 3- , .' limitations, and the third of whom. shall be selected by the first two. As a con-. clition to any sale of capacity in the system constructed pursuant to this agree- Inent (excepting in connection with the sale or service of a completed building, in connection with the sale or service of a condorninium unit to be used as a single-family dwelling, or il' connection with sale or service of one or more platted lots, each and all of which lots are subject to deed restriction limiting use to that for a single-family residence) every party purchasing such capacity shall be required by the party selling such capacity to sign a written agreement whereby such purchasing party agrees to abide by the terms of this P and where- in it shall be stated the arnount of capacity sold and the amount of capacity rc- ,-. ta ined by the s e 11 ing party, the total of which, together with any capacity pre- viously sold by the selling party, shall not exceed the total capacity allocated to the selling party pursuant to the table above. At least ten days before closing - of the sale or service of a completed building, other than single-family residence, in connection with which the purchasing party does not sign an agreement as set forth above, the selling or serving party shall give notice of the closing 01' service to the private parties or the other private parties, as the cas e rnay be. Such agreen~ent signed by each purchasing party shall be for the benefit of each and 3.11 of the parties to this agreement and shall be enforceable by each and all of the parties hereto. Notwithstanding any sale of such capacity, any such Se 11er shall not be released from any of its obliga.tions undertaken by it pursuant to this agreement. SS. Construction Contracts. Muirfield is a.uthorized to enter into contracts for the construction of the various force rnains, pump stations, and other facilities described herein, so long as but only in the event that the costs thereof to the parties to this agreement, excluding engineering fees, easerncnt costs, and fees to be paid to Muirfield, do not exceed 115% of the e~timated costs of such construction, as set forth on the attached IIExhibit B II 'which , Exhibit B is incorporated here in by this reference. Notwithstanding the fore-, --- going, no construction contract shall be entered into by Muirfield in behalf of the parties~ntil ea2.em~Il!s have been obtained for the entire system, and Muir- .........~ .,---'.-,.,..,.'>-,........, '. ......~.."-'""......._..,.,..,." field has determine dthat such easements aresufficlEtnf'Trom--re~rarand engi- ..~ ~;'"~..ripg,~ta;;:dpoTnrs'Ioi.-co-r;.sT~:ii:'~ti~;;:.and 1-1Se of the entir";;sy~tem as contern- plated Ullcie'i"'thisagreement. After enter,ing into any such contract, Muirfjeld '-shallther-ea!ter c1iltgendy Gupervise construction to completion p-u.l'cuant to such contract. All plans Cind specifications shall be submitted to Dublin alla to the" City of Colurnbus, and, if require d by lavv, to the Ohio Envirc:lmental P 1'0- tection Agency, for approval. All construction shall be inspected by the Village of Dublin in accordance 'with approved plans and specifications. All construction contracts entered into by Muirfield on behalf of the parties hereto shall contain the following provisions, unless Muirfield receives written con- sent to the waiver of. any such p:::ovision by the pCl.rty 01' parties '\vho sb.all pay the costs of such construction, in whole or in part: (A) Unless theretofore obtained by Iv1uirHeld, the contractor shaD. obtain doll pennits and necessary goverl1rnental apl::.rovals and authorizations before comrnencing work, including, without li.l'nitation, any necessary approvals of t.he Ohio EnvirolUYlental Protection P,gency. The contractor shall give Dublin and any rlll,,"1' gn\'ernrnenLa.l1jvdy ( c~.;e~1CY having jurisdiction, oppOl:tuuity ,... to inspect and approv'e sue 1 con:;truction whenever requcst.ed. (B) All contracts shall be t.erminable by Muirfield, acting on behalf of the padi.cs hereto, in the event that this agreement - is terrn inated in accor.dance with jhe Drovis ions of ~ 12. Subject .L to the provisions of ~2, the contractor shall prornptly corrunence and diligently pursue to completion the construction of the irnprove- rnents, and shall complete the work no later than August I, 1974:, subject to delays frorn occurrences beyond tbe r:ontractorls contI'ol, and if not so c01npleted by SUell cOlnpletion date, as extended for f:U ch delays, the contractor shaH be penalized not less thc:,n $200.00 fOl' each ddY until such iJlJpl'OVcrncr;l:' ar8 c'~.np.lct(;d. (~vtu;,r.E~.cld s}J;j.1J 1.:n. ~;.0od f.:-l,l~'~ f:Y(ll~('~~~f' 0C["0r1" f,"'""'\ '~e~~(,1-;"-h'~ ~110h r"'llr\rt'~.(",t~ "',',11tl!Cl1tl l/C() V l~-:; l.UJl ~".' C,('l~LY~; i.jl:,{.;" to t)c:(.tl.!<t.'.'J'i,-'~'..~:' !)c:/nl)(i, tl'l(~ Cl,..11J' I~,'lCtOC';3 '.',~-} ti.t,~' o.! . 11:1' r..~ll~!.>I;l_~J{t';; i.,t.::-,_L;.~j:':/ Ll.' ~'_<)L:'il t~:c: d'-:ic'ii".iij \.!~. ~;l,,:{'h ;.-: .".~_._~----_._,-~-- . provision shall not in'f~ll::'.)te Lhe cu"tract for thf; ;)'trDOses of this " . agreernent. ) The contractor shall obtain a ["ilyment and perfor- mance L0nd for the tinlely perf0nnance of all obligations under- taken by the contractor. (C) Monthly draws shall be lnade on the basis of percentage of completlOn as certified by Burgess & Niple Limited, with a 10% retainage to be paid 60 days after all items being constructed or installed pursuant to that contract are operational. All dis-. putes are to be settled by arbitration, Burgess & Niple Limited being the arbitrator, and the decision of such arbitrator shall be binding upon the parties with respect to all matters submitted to it. ,... (D) The contractor shall agree to waive any and all lien rights. it may have against the owners of the properties involved, and - shall require similar waivers from each subcontractor prior to comn1encement of work by such subcontractor. (E) The contractor shall warrant its work to be free from defects in workmanship and materials for a period of one year from the date of completion, and shall assign all warranties which the contractor receives with regard to the items constructed or installed to the parties who are payinf! for such construction or ins talla t ion. Prior to accepting bids for any particular portion of the construdion to be performed pursuant to this contract, MlJirfield shall provide t',8 pc. J<ties '.'.:10 are to pay the cost of such construction with the fonn of construction contra.ct proposed to be used and with copies of all engineering drawings and specificati.ons relating to such cons truction. Muirfield shall solicit bids from no fewer than three contractors with regard to any construction work described in this agree- ment, and shall open such bids simultaneously. Any party to this agreement requesting the opportunity to review such bids prior to the awarding of a con- ,,- tract shall be given such opportunity, as well as the opportunity to advise :M1.11r- field, but Muiriield shall have the right, subject only to its reasonable judgrnClJt., to accept any bid tendered to it. Upon the request of and reasonable notice horn '",- any party which is paying or sharing in the costs of any construction pursuant to this agreement, :tvfuirfield shall make its books and records with regard to such construction available to such party for inspection at Ml.11rficlcPs officE'? at any reasonable tin1es requested by such party. Muirfield may approve on behalf of the parties to this agreement and without their prior C0.nsent all change orders which would increase the cost of construction less than $1,500.00,. provided that any such change order with respect to any portion of the s ystern (a "portionlt be ing tha t which is cons tructed pur suant to each of ~ 1, ~ 2, ~ 3, ~4 or S5), when added to all previous change orders with respect to such por- tion of the s ys tern would not increase the cost of cons truction of such po rtion to an alnount in excess of 1150/0 of the estimated costs of such construction, as set forth on the attached "Exhibit B. 11 All other change orders must be approved by a majority of the private parties paying for such construction, and when two priyate parties are paying for such construction, the approval of both must be obtained. Copies of all change orders shall be given to all parties. Such additional costs shall be borne by the parties in proportion to their respective shares of the cost of construction to which such change order applie s . In the event that such change orders are not approved by a majority of the parties, then the party approving such change may direct Muirfield to r- proceed with the necessary change, in which case the additional cost thereof shall be borne by the party approving t.he change. S9. Payment of Dublin1s Share of (:;ost8 of Irnprovelnents frniD Hi.gh - Street To IvfartinRo;Ld. At a!lY S11~h time as Dublin c~llects any\vherc in D~l-b-lin the "systen1S capa~ity charge" as referred to in the Dublin-Columbus Sewer Contract or such shnilar charge 2.:::1 shall be enacted or imposed hy Colurnbus 02' any equivalent charge enacted or imposed by Dublin then Dublin shall pay the portion of such fees and charges which it is required to collect and which it is not required to pay to Colurnbus, by coctract or hy law, to the other parti cs to this agreement as reirnburSelTICnt to vVestcrn Electric, AlnC:r1Can Urban, and Muirficld, for Dublin';:; S11Qye of the costs .H1vanced in behalf of Dublin for the: force rnai.ns aDd pU1';.lr stations -::onDtrlictcci pursu;.i.nt to ~1 ur thi::; ct"TC':> .. ment, in the follovving a!nounts: 9.43110 to \Vei::itern Electdc; 28. 300/0 to J..merica:-; Urban; and 62.27% to Muirfield until Dublin has paid, pursuam to both this 59, and ~10, below, a total amount equal to the sum of the following: (a) the differ ence between the actual costs of construction of the segment of the sewer systern be- tween the locations marked "x" ap.d "y" on the attached Map, and the estimated costs of construction of that same segment if such segment were constructed as a force main (for the purposes of the preceding computation, the "estimated cost" shall be those esthnated by the contractor whose bid is accepted for the actual construction of such segn"lent); plus, (b) 54.47% of the "adjusted cost of construction" (as that tenn is defined in ~ 1 0, below) in connection with the pump station and force n"lains described in ~1, a b ov e. Nothing in this contract shall . ,..... be construed to restrict any right of Dublin to fix and charge any sewer fees or rentals or other charges of any nature which Dublin is empowered or obligated to fix and charge pursuant to the law and pursuant to contractural arrangenlents '-- with the City of Columbus, or to restrict the prepayment by Dublin of its obli.ga- Hons hereunder to the private parties. ~ 10. Sale of Excess Capacity. In the event that (i) it is determ ined to the satisfaction of all parties to this agreement; or if not so determined, then in the event that it is determined by arbitration following the procedures set forth in p, above; that there exists any capacity in excess of the capacities reo. served to the parties in accordance with the provisions of ~7, above, (except for such capacity with regard to the force main from Case to Martin Roads, the sa Ie of which is discussed in ~ll. below) and that the use of such capacity would not limit the capacity availab Ie to any party to this agreement, in violation of the pr ovis ions of ~ 7. above; or. (ii) Dublin desires to sell or provide to another any portion of its capacity in the system under ~ 7; then Dublin may sell or provide to another such capacity or any portion thereof if in connection therevlith Dublin pays to the private parties an amount equal to no less than the result obtained by applying the following computations, except as limited be lo\v: First, after the actual expended and estimated future costs of acquiring sites, engineer ing and construction have been determined, there shall be added thereto an additional AI""'" 8% per annum on the unreimbursed balance from the date of this agreenl.ent to . the time such capacity is sold, which total. an"lount snall be referred to as the <- "adjusted cost of construction". For the purposes of the precedi:1g sentence, "- such costs of acquiring sites, engineering and construction shall include all fees paid to ~fuirfield, as well as additional 10% of Muirfield's share of such actual c os to, which 10% corresponds to the fees paid to Muirfield by the other parties to this agreement. The next step in computing the sale or provision paynlcnt fa:;: st-~ch capacity shall be to compute thz adjusted cost of construction with regard to ea..:h section of the sanitary sewer force main system utilized in the sale of SHe h . capacity. The sale or provision payment for such capacity shall then be the reo. suIt obtained by adding the portions of the adjusted cost of construction of' ea ch section of the system utilized. For the purposes of the preceding sentence, the "portion of the adjusted cost of construction" of a particular section of the system shall be determined by multiplying the "adjusted cost of construction" of that section by a fraction, the numerator of which is the capacity (in cubic feet pel' second) being sold or provided, and the denorninator of which is the total capa- city (in cubic feet per second) of that section of the system, as shown on Exhibit B. All proceeds fron"l the sale or provision of such capacity, after the payment of all out-of-pocket expenses in connection with such sales, shall be distributed as follows: 9.43% to \V ester n Electric; 28. 30% to American Urban; and 62.27% to Muirfield until Dublin has paid pursuant to both this ~10 and s9, above, a total amount equal to the sum of the following: (a) the difference between the 3.ctual f'!"""'- easts of construction of the segment of the sewer system bet\veen the locations mar ked "x" and "y" on the attached 10ap, a.nd the estimated costs of constj'uction of that same segment if such segment were constructed c\s a fOl'ce maill (for the purposes of the preced ing computation, the "estimated costsll shall be tho;,e ~ estimated by the contractor whose bid is accepted for the actual construction of such f) egment); plus, (b) 54.47% of the "adjusted cost of constrnction" (a.;; that term is defined in this SIO) in connection with the pump station and force mains constructed pursua!1t to S I, above. In the event that any provis ion of this ~ 1 0 is inconsistent with the terms of the Dublin- Columbus sewer agreement dated November 9. 1971. then the tcrl11.S of such agreement shalJ. control. N otw i tJ-j .. standing anything contained LCl'ci.n to the contrary, once Dublin shall hav(: paiC) its obligations to the private parties under thi::: agrcerncnt, Dub lin in C OICl1CC ti on \vith the sale or proviAion of sewer capacity under tilis ~lO 1'nay establish any pcice it (1(:tel"lninc!; and no p;1yrnellt 0,1t of such price jo the prlFltr: p<.lrhv; :,hall t 1)(, f'>l fi:\;1_. be reel 1.1 j r (~d ~ C"''''~ ..;~ l!1..', k .......-.~"""".;....';A.~""'........_.,"'--.',_. .Ii.n _. ..~.,._W_!fl';I .~>> ..tl.~ ~.""r U , ~_'_'_l.UIl.,~_..1L L.'__w*,., ....',. -'.'.n'l'#'"'.<t..,.''''''..........ull'lii'''iI!W.~.IO;,_..-"'' --", --,.__..--._,_..~ ~ 11. Future Use of the Force Main from Martin Road to Case Road. It is the intention of the parties that constructi.on of the force main described in ~2, above, will make the following capacities available to the parties here- to, for us e by the following parties: Capa<:i!L Users Served 1. 02 cubic feet per second for use by Muirfield and its successors and assigns " ,.,.. . 15 cubic feet per second for use by Western Electric and its successors and assigns - .46 cubic feet per second for use by American Urban and its successors and assigns Dublin shall, at the request of Muirfield acting on its own behalf and as agent for Western Electric, or Anlcrican Urban, contract for the sale of the excess capacity of the force main described in ~2, above, aggregating up to .27 cubic feet-per-second of capacity, provided that Dublin shall have the right of first refusal with regard to the use of such excess capacity. With- our prior written cons ent otherwis e by all of the parties hereto, none of the parties shall permit the use, by themselves or their assigns, of capac ity of the force mains in excess of the respective capacities set forth in this ~11 and in Exhibit B. Any controversy among the parties hereto concerning use of the system in violation of the herein-descri.bed capacity limitations shall be settled by arbitration pursuant to the provi.sions of Chapter 2711 of the Ohio Revised Code as set forth above in P. Dublin shall have a right of first refusal to use capacity to be sold by private parties to other than another private party pursuant to this ~ll. Such rights of first refual shall be in ac- ,..... cOl'dance with the following pr ovis ions: In the event that one of the private parties shall desi.re to sell capacity other than to another private party, or Muirfield shall have requested Dubli.n to sell a porti.on of the excess capacity "'-" to a particular party, who is ready, willing and able to purchase the same, then Dublin shall have 15 days within which to adopt legislation exercising its right of first refusal and to authorize prompt payment for such capacity for an amount equal to the result obtained fr om app lying the following computations: First, after the actual expended and estimated future costa of engineer ing and con- struction of the force rnain described in ~2 have been determined there shall be added ther eta an additional 8% per annum fr om the date of this agreement to the t'i.me such capacity is sold, which total amount shall be referred to as the Iladj'clsted cost of construction". For the purposes of the preceding sentence, such costs of engineering and construction shall include all fees paid to Muirfielc1, as well as an additional 10% of Mu-i.rfield's share of sueb actual costs, which 10% corresponds to the fees paid to Muirfield by the other parties to this agreement. The sale price of such capacity shall then be determined by multiplying the "adjusted cost of construction" by a fraction, the numerator of which is the capacity (in cubic feet-per-second) being sold, and the denominator of which is the total capacity (in cubic feet-per-second) of the force main described in ~2, as shown on Exhibit B. If Dublin fails to adopt such legislation within such 15 -day period, then the private party n~ay complete the sale of its capacity, or Dublin shall complete the sale of such excess capacity, as the case Inay be, to r the party willing to purchase the S2.me, for no less than the sale price COlU- puted in accordance with the preceding computations. All proceeds from such a sale of capacity reserved to a private party by a private party shall be re- - tained by that private party. All proceeds frorn the purchase of excess capacity by Dublin shall be distributed as fo11O\v8: 9. 43% to Wester n E lec tric; 28.30% to American Urban; and 62.27% to Muirfield. It is the expectation of the parties that the force main described in ~2, above, shall be used only temporarily, until a luain trunk line is extended to the location, generally, designated "Bllon the Map. After such tirrle as a rI1ain trunk line is extended to such a location or any other trunk line is extended " ~w I ~~ -".,"_..._~ . . . . to and connected with the s ystcrn cOn:3tr~lct('u pursuant to this agreement and Dublin has abandoned its ternporary use of the above-described force main, Dublin shall, at the request of Muirfield, enter into a contract or contracts for the sale of the force main to the City of Columbus or to any other party or par- ties specified by Muirfield, who desire to purchase such force main, in whole or in part. Muirfield shall in behalf of the parties use its best efforts to ob- tain the highest reasonable offer for the purchase of such force main. All proceeds from such sale, after the pa )'rnent of all out-of-pocket expenses in *""" connection with such sale, shall be distributed to Western Electric, American Urban, Muirfield, and Dublin, in proportion to their adjusted cost of construc- tion (as that term is defined in the preceding paragraph), computed through '.~' the date of sale and after adjustment {or amounts paid for excess capacity pur- suant to the provisions of the preceding paragraph, paid in connection with the hnprovements des cribed in ~ 2. For the purposes of the preceding sentence, Muirfield's unreimbursed 'Costs shall be considered to be greater than its actual unreimbursed costs by an amount equal to 10% of Muirfield's share of the original costs incurred in connection '\lith the improvements described in ~2. Ho'.veve r, in no event shall the amounts reimbursed to Western Electric, Ame rican Urban, or Muirficld exceed an arnount equal to: (a) the surn 01 (i) all am01mts expended by the respective privatE:: parties with regard to the se\ver system constructed pursuant to this agreement, plus (ii) 8% per annum computed on the amount conlputed pursuant to subsection (i), above, from the time such expenditures are made to the time they are reimbursed; less (b) any proceeds from a sale of capacity under the preceding paragraph of this ~ 11; and Dublin shall retain all rnonies in exces s of the amount thus computed. S 12. Bight of Termination. \Vithin. 10 days after the date of thi s agreenlCnt, Western Electric, American Urban and Muirfield shall obtain irrevocable lette rs of credit, each is sued by a national banking institution, or such other security as shall be acceptable to the other private parties in their sole discretion, payable to Mv.irfield as agent for the parties hereto, securing the payment of their respective shares of the costs payable pursuant '~ to S~1-4, above, as those costs are estimated on the attachedExhibitB, Such letters of credit or other security sha.ll contain provisions specifically obligating the bank to l1.1.ake disbursernents for progress and final payments to Muirfield, as agent for the parties hereto, within 10 days after demand for such progress and final payn1.ents have been Inade upon the respective parties, in the e vo nt that such demand is not honored. In the event that Western Electric, Arnerican Urban, or Muirfield does not obtain such a letter of credit within t.he above- described 10-day period, then any other party hereto may terminate thif:l agreement by giving the other parties written notice of its election to terrnina,te within 10 days after the e:X'Piration of the above-described lO-day period, HI. which event this agreement, and the obligations of all parties hereto, shall cease and terminate. In the ev~nt that (i) Muirficld is unable, pri;:u: to FebJ:uary 15, 1974 (subject to the provisions of ~2), unless extended by agreement of all the pri- vate parties, to enter into construction contracts pursuant to ~8 of this agree- ment, for the cons truction of a.ll portions of the sewer system (a II portion" be ing that constructed pursuant to any individual section, 1 through 4, respectively) at costs not to exceed 1l5% of tb.e estimated costs therefor set :for.th on EX'..~ibit B, r- and (ii) the priva.te parties paying for s1..1ch portions v.+ich cannot be constructec: within such cost li'll-itations do not unanirnously <lpprove the letUng of such con- tracts for a higher am.ount, wit.hin 10 days after receiving notice of the cost of such constnJcti.on, t1H~n this agreernent shall terrni.nate and all costs incurred ~ to the date of such terminCltion in connection with each portion of the system, including without 1im itatioll costs of acqui.ri.ng CCtf;cn-18nts, sites, and engineering, shall be borne by the respective padie8 in there~)pective propoJ'tions set forth in ~~l through 4, provided that in the event that two (.f th(~ three private parti.es desire to proc.eed with the conf:tl'uction Ol the systenl, then all costs pa yable by, capacity available to, and reirl'lbursernenls payable to lbe p;;,rty not vv'ishing to proceed shall be divided betwenn the rem<tin~ng privat€; pc)}'ties in proportion to their respective COE;ts, caracith~s, ant1 reirnburSClnents pursuant to the various s(,~ctions of this agreern0:nt, 2nd ll, (0 party not (:"-~s i.ring to proceed ~; in 11 ba\Tc no flLctber rirlbt,s ll.ndc\.r LItlS agl (~i~;lrlc;~~L.. , ...., 0, , '. . ~ 13. Des igna!ed Repre se'dt'1ti ve~. Immediately UpO.l the exe cution of this agreement by all of the pardcs hereto, each of the private parties shall designate a representative for the purpose of approving change orders. Such representative shall be de signa.ted by written r..otice thereof, delivered to the parties in accordance with the provisions of 514, below. Determinations and approvals of, or requests to proceed with, changes made by such representa- tives shall be binding upon the respective parties. ~14. r~ot!.cc:s. l.\r.lj J.l()ti.cc, i c~-ii...l.(: Ei t, (j' utilt: i' i,ape 1 '" Je sire d or re- quired to be given sh~l1 be in wriLing and sl.:.all be deemed giw>n: (a) to Western Electric when delivered personally to Jeff McNeale y, Esquire, or when depos ited ".,.,. in the United States mail, first class postage prepaid, addressed to Western Electric Company in care of Jeff McNealey at 37 West Broad Street, Columbus, Ohio 43215, with a copy sent to J. F. Ruth, General Manager, PlanL Design & '- Construction, 222 Broadway, New York, New York 10038; (b) to American U).'ban when delivered personally to Charles J. Ruma or when deposited in the United States mail, first class postage prepaid, addressed to American Urbar~. to the attention of Charles J. Ruma, 1681 Moler Road, Columbus, Ohio 43207, with a copy sent to Michael E. IvIoritz, J'vloritz, :McClure & Palmer, 100 East Broad Street, Columbus, Ohio 43215; (c) to Muirfield when delivered pel's onally to James L. Spung or when depos Heel in the United States mail, first cla-ss - . postage prepaid, addressed to Muidield Ltd. at 3040 Riverside Drive, Colum- bus, Ohio 43221; and (d) to Dublin when delivered personally to The Dublin Village Administrator or when deposited in the United States mail, first class postage prepaid, addressed to The Dublin Vi.llage Administrator at Dublin . Village Hall, Dublin, Ohio 430 1 7. Any party m,ay change the address at whi.ch such notices, requests, and other papers are to be maLle d by giving the other parties wri.tten notice of such change. ~ 15. Successor~3 in Interest. All provis ions of this agreement shall ----.---------.-.,------. -~ be binding upon, inure to the beneI:it of, and be enforceable by and agail1st the ,.... respective successors and assigns of any party to this agreement. The obli-- r gations and benefits of this agreement shall be llpersonal" to the respective parties and their respective successors and assigns and sball not be consid~red .~ to 11 run with the land" owned or controlled by tIJC respective parties. ~ 16. Agreem~D~_90cum,ents and Attorneys' Fees. This dOCUlnent fully sets forth all agreem,entE' and understandings of the parties with respect to the subject matter hereof. Each party shall pay its own legal fees and expenses incurred with regard to this agreement and all transactions con:.. templated hereby, including, without Hm it,Hion, those incurred in obtaining easements necessary for tb.e systern (irrespective of any COmmon benefit resulting therefrom). 517. Construction of Contract. The captions at the beginnings of the several sections of this agreement are not part of the context hereof, but have been inserted only to assist in locating and reading those sections and shall be ignored in. construing this agreelTICnt. ~ 18. S e veI~..!:~.il_~~..: In the event that any term or provision of this agrcer;...cnt s}L;'lll be helcl i~) be inva.lid 01" unenforc','lble, all other tenns 01" pro-. visions of this agreelTIcnt shaUDot be affected and shall rcrnain in full force and effect. r- WESTERN ELECTRIC COMPANY, VILLAGE OF DUBLIN lNCORPORATED --- By .-- Bv ----- '-, - . - , AMERICAN URBAN CORPORA TION M1JIRFIELD LTD. 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