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18-08 Ordinance
RECORD OF ORDINANCES ~ Dayton Legal Blank, Inc. Form No. 30043 ~ 18-08 Ordinance No. Passed . 20 1 1 1 AN ORDINANCE AUTHORIZING THE PROVISION OF CERTAIN INCENTIVES FOR PURPOSES OF RETAINING AND EXPANDING IGS ENERGY, INC. AND ITS OPERATIONS AND WORKFORCE WITHIN THE CITY OF DUBLIN AND AUTHORIZING THE EXECUTION OF AN ECONOMIC DEVELOPMENT AGREEMENT. WHEREAS, consistent with its Economic Development Strategy (the "Strategy") approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage commercial office and retail development and provide for the creation of employment opportunities within the City; and WHEREAS, IGS Energy Inc. ("IGS ") is desirous of retaining its operations and workforce within the City in consideration for the provision by the City of economic development incentives; and WHEREAS, this Council has determined to offer economic development incentives, the terms of which are set forth in a substantially final form of Economic Development Agreement presently on file in the office of the Clerk of Council, to induce IGS to establish its operations and workforce within the City, to retain jobs and employment opportunities and to improve the economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, this Council finds that it is in the best interest of the City to provide those economic development incentives to induce IGS to retain its operations and workforce within the City and to provide for the execution and delivery of that Economic Development Agreement with IGS. NOW, THEREFORE, BE IT ORDAINED the Council of the City of Dublin, Franklin, Union and Delaware Counties, Ohio, ~ of the elected members concurring that: Section 1. The Economic Development Agreement by and between the City and IGS, in the form presently on file with the Clerk of Council, providing for, among other things, the provision of incentives to IGS in consideration for IGS' agreement to retain its operations and workforce within the City, is hereby approved and authorized with changes therein not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager and Director of Finance. The City Manager and Director of Finance, for and in the name of this City, are hereby authorized to execute that Economic Development Agreement, provided further that the approval of changes thereto by those officials, and their character as not being substantially adverse to the City, shall be evidenced conclusively by their execution thereof. This Council further authorizes the City Manager and the Director of Finance, for and in the name of the City, to execute any amendments to the Economic Development Agreement, which amendments are not inconsistent with this Ordinance and not substantially adverse to this City. Section 2. This Council further hereby authorizes and directs the City Manager, the 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 maybe appropriate to implement this Ordinance. Section 3. This Council finds and determines that all formal actions of this Council concerning and relating to the passage of this Ordinance were taken in an open meeting of this Council and that all deliberations of this Council that resulted in those formal actions were in meetings open to the public incompliance with the law. RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 ~ 18-08 Page 2 Ordinance No. Passed , 20 II U Section 4. This Ordinance shall be in full force and effect on the earliest date permitted bylaw. Mayor -Presiding Officer Attest: Clerk of Council Passed: ~8 Effective 2008 II Office of the City 11~Ianager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614-410-4400 • Fax: 614-410-4490 crrY of rve~[N TO: Members of the Dublin City Council Memo FROM: Jane S. Brautigarn, City Manager DATE: April 3, 2008 INITIATED BY: Dana L. McDaniel, Deputy City Manager/Director of Economic Development RE: Ordinance 18-08, IGS Energy, Inc. Economic Development Agreement Suimnarv Staff has been in discussions with IGS Energy, Inc. ("IGS") for several months regarding the retention and expansion of its operations and workforce in the City of Dublin. IGS desires to retain and expand its workforce and operations and construct new corporate headquarters facilities in Dublin. IGS has filed for a rezoning of the site shot~~n in Enclosure 1. The construction of nejv corporate headquarters facilities demonstrates IGS' long-term commitment to Dublin, as well as its intention to expand its operations and workforce. IGS is a Dublin-based company, currently located at 5020 Bradenton Avenue in Dublin. Currently, IGS has approximately 150 employees in the city. IGS is a regional provider of natural gas to both residential and commercial customers. You may also recognize IGS as the City's provider of natural gas for its municipal aggregation program. IGS is a great example of a company that has grown successfully in our City and desires to maintain along-term presence here. IGS will construct and own its headquarters facilities and will establish the presence of yet another corporate headquarters on Emerald Park«~ay with I-270 frontage. IGS' new facilities will be "green" and LEED certified. The IGS headquarters will be built in two phases. Phase I will consist of an initial facility of approximately 100,000 square feet. Phase II will consist of a second facility of at least 40,000 square feet, but currently is anticipated to be 75,000 square feet. Enclosure 2 provides the proposed layout of the site. Enclosure 3 provides a rendering of the Phase I facility. The proposed IGS site ti~~as previously rezoned as part of the Tuttle North Extension Planned Commerce District rezoning in 1998. IGS will seek a modification in the development text, which includes some of the conditions established at the time of the rezoning. The items are listed below: 1. Setback from I-27~. The development text originally identified a building setback of 75 feet from I-270. Council amended the minimum building setback from I-270 to be equal to the building setback of One Parkwood Place which is 193 feet. IGS is proposing a building setback of 100 feet from I-270. A 193-foot setback would place parking between Memo to Council re Ordinance 18-48 IGS Energy Economic Development Agreement April 3, 2448 Page 2 of 3 the building and I-274. They do not desire to have parking located between their proposed building and I-274, preferring to have a presence similar to Cardinal Health, Verizon and Ashland. Instead they propose a water feature between the proposed building and I-274. 2. Parking structure. The development text addresses structured parking or parking garages as a conditional use and therefore shall be subject to conditional use procedure. Council added the condition at the rezoning that any structured parking requests come back to Council for approval. IGS is not proposing a parking garage, but is proposing a single-story parking structure under their proposed office building, similar to the building configuration at 444 Metro Place. 3. Shamrock Court. A condition of approval for the rezoning at the Planning and Zoning Commission stage included the provision for adequate right-of-l~~ay dedication and that the terminus of Shamrock Court be designed and installed to minimum turn-around specifications prior to building construction. Washington Township Fire Department waived this condition in a letter dated January 28, 1997 as it pertains to the opinion and needs of the fire department. ~~4'ashington Toy;unship Fire Department has stated verbally that it will still support this letter. 4. Cross access. The development text states that the proposed development will gain access from Emerald Parkway via a full service curb cut in addition to a right-in/right-out curb cut located in the northern portion of the site. The development text also states that the proposed development will incorporate an internal vehicular access from the existing One Parkwood Place site. IGS is proposing a modification to the location but intends to provide cross access. Ordinance No.18-48 authorizes an Economic Development Agreement between the City and IGS that includes: 1. Green Buildvig Grant. The City agrees to pay two Green Building Grants. The first grant will be paid in the amount of $75,444 for a Phase I building of at least 84,444 square feet (sf) and that is LEED certified. A second Green Building Grant of $54,444 will be paid for a Phase II building also of at least 84,444 sf and that is LEED certified. Payment of each grant ~;gill be made once a certificate of occupancy is issued or proof of LEED certification is received, whichever is later. 2. Payroll incentive. The City of Dublin offers an eight (8} year 24°./o withholding incentive beginning in 2414 and ending in 2417. If the Actual t?Vithholdings meet or exceed the Target «'ithholdings, net of refunds, for the preceding calendar year, the City will pay to IGS, solely from non-tax revenues, an amount equal to the actual withholdings multiplied by the incentive factor. The payroll incentive is capped at $85,444 per year. Providing IGS meets pre-determined payroll targets, the City will pay a minimum of $589,644 or a maximum of $684,444 over the eight-year period. The City is estimated to receive a total of $2,944,444 in income tax over the same period. Memo to Council re Ordinance 18-08 IGS Energy Economic Development Agreement April 3, 2008 Page 3 of 3 3. Off-site traffic control improvements. The City agrees to install at its expense the necessary traffic signals and turn lane rnoditications associated with IGS' new facility. It is not yet determined «~hat the cost of the required improvements will be. The City estimates the cost of these irnpro~~etnents to be at least $500,000. These improvements will be paid using Tax Increment Financing. 4. Right-of-ti~ray acquisition a. The City agrees to purchase, if IGS elects, the necessary right-of--way from IGS to accommodate additional roadway/turn lane and/or utilities for which the City must provide access. An amount equal to that paid to IGS for right-of--way will be deducted from the City's obligation to provide withholding incentive payments as outlined above. A deduction from the payroll incentive equal to the cost of right- of-«~ay acquisition will be made from the latter years of the payroll incentive. This incentive, if desired, will be paid from Tax Increment Financing. b. IGS agrees to grant the necessary easements for the construction of a bike path and other park-like improvements through the northern area of the site. Discussions are ongoing and may be left open for future discussion by Council's second reading and passage of the Ordinance. Such improvements would be constructed using Tax Increment Financing. Enclosure 5 provides a concept of the bike path and park-like amenities. 5. Utility burial. Currently, there is an above ground AEP power distribution line over I- 270 visually impacting the proposed site on both the east and west sides of I-270 (See Enclosure 6). The estimated cost to bury this line is $375,000, as estimated by AEP. The City will initiate construction of the line burial no earlier than July 1, 2012, and no later than December 3 1, 2012. Burial of the line will be paid from Tax Increment Financing. IGS' establishment of a new corporate headquarters brings great value to the City in terms of retaining and potentially growing new jobs, as well as, another significant presence along I-270 and Emerald Park ray. Reconmiendation Staff recommends City Council approve Ordinance No. 18-08. Approval of this ordinance will support Council's goal relative to retaining and expanding Dublin-based businesses. Please contact Dana McDaniel or myself with any questions you may have. Enclosures: 5 Memo to Council re Ordinance 1 S-OS - IGS Energy Economic Development Agreement -Enclosures 1-3 April 3, 2008 Enclosure 1 Memo to Council re Ordinance 18-08 - IGS Energy Economic Development Agreement -Enclosures 1-3 April 3, 2008 i, ~: ~1 e Ii ~I ~' ~ i ~}~ w ~"+-~~ ~1 ~~ GRAPHIC 3_ALC ~~ 1 ~ ~ ~ _Y„~~ ~a .....~ ~L .L~ r ~~~ ,~ ~ ~~ ~r ) r r I X ~ .«. ~ LI rl ~ f °~ ` p -~`. i ~ '--. ~ ~~ _ r - „ ~ ~~ 1 _~ use ~v„r n'ra„ -- _I/- r~'~- r f~ ~ Cx r,_ ~i _ - -~,... ~ifr;, 4.1 1 1 '~ I. / -~~~r,, a Ir- rr lip I 7ftj( ~4 ~ ~ ~ I r ~~ \ ~ ~~J~1 I ~ /~~ i - .a ~_- ~ II i 1 ~. , . , ~ P~ r ~ - -~~ ,~,. ~ - ~ w .~w.~. ~•ix ~.~ ~- ~ I' , VI rE ~ /: ~ ~ _ r ~~.. I. '.°- d ~ III ~ e.ee• V s ', ,_ T -r - - j r ~ - r 1" :; ~l ~~-- -- _:- _ I ~,'~_ a w i ~~z~ ~ ~ ~z o z~ x m ~ o a~ e a v ~~ ~~ i,~~i IVlemo to Council re Ordinance 18-08 - IGS Energy Economic Development Agreement -Enclosures 1-3 April 3, 2008 Enclosure 3 Enclosure 4 Enclosure 5 East of I-270 ~'t~est of I-270 IGS Site ECONOI~7IC DEVELOPI~~IENT AGREEMENT THIS ECONOMIC DES-'ELOPNIENT AGREEMENT (this ``Agreement") is made and entered into this day of , 2008, by and between the CITY OF DUBLIN, OHIO (the ``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 INTERSTATE GAS SUPPLY, INC. (the "Company" and collectively with the City, the "Parties"), an Ohio corporation with its main office currently located at 5020 Bradenton Avenue, Dublin, Ohio 43017, under the circumstances summarized in the following recitals. RECITALS: WHEREAS, consistent with its Economic Development Strategy (the "Strategy"} approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated Strategy approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage commercial office and retail development and provide for the retention and creation of employment opportunities within the City; and WHEREAS, based on the results of the Company's recent comprehensive examination of workforce needs, and induced by and in reliance on the economic development incentive provided in this Agreement, the Company is desirous of expanding its workforce and creating a corporate headquarters, all within the City; and WHEREAS, the Company has determined that it will construct one or more LEED certified buildings within the City {the location of such buildings is referred to herein as the "Site" and depicted on EXHIBIT A attached hereto and incorporated herein by reference) to facilitate the expansion of its operations, the retention of its existing workforce, the possible expansion of its existing workforce and the creation of a corporate headquarters, all within the City; and WHEREAS, pursuant to Ordinance No.18-08 passed April , 2008 (the "Ordinance"), the City has determined to offer the economic development incentives described herein to induce the Company to construct one or more new facilities and expand its operations and workforce «~ithin the City to improve the economic «--•elfare of the people of the State of Ohio and the City, all as authorized in Article ~7III, Section 13 of the Ohio Constitution; and WHEREAS, the City and the Company have determined to enter into this Agreement to pros~ide these incentives in order to induce the Company to construct one or more new facilities and expand its operations and workforce within the City; NOW THEREFORE, the City and the Company covenant, agree and obligate themselves as follows: Section 1. Operations and Workforce Within the City. For consideration of the economic development incentives to be provided by the City herein, the Company agrees that it will construct one or more new facilities upon the Site, expand its operations, retain its existing «~orkforce, possibly expand its «~orkforce and create a corporate headquarters, all within the City pursuant to this Agreement. The company expects to expand the number of its Employees from to over the years 2010- 2017. The average annual wage of these Employees for this period is estimated to be $ ,with total estimated payroll withholdings of approximately $ over the term of this agreement. Section 2. City Agreement to Provide Incentives. (a) General. In consideration for the Company's agreement to develop one or more new facilities and expand its operations and workforce within the City, the City agrees to provide economic development incentives to the Company in accordance with this Section. {b) Building Grants. The Company agrees to construct a Phase I Building (the "Phase I Building") and at its sole discretion a Phase II Building (the "Phase II Building" and, together with Phase I Building, the "Buildings") in the area depicted on EXHIBIT A to support the expansion of its operations within the City. The Company anticipates that the Buildings will be constructed as "green" buildings and will receive appropriate LEED certification following completion. In consideration of the Company's agreement to construct the Buildings and to expand its operations and workforce within the City, the City agrees to provide to the Company t~~~ith the follot~~ing incentive grants: {i) Phase I Building Grant. The City agrees to pay to the Company a Building Grant (the "Phase I Building Grant") in the amount of Seventy Five Thousand {$75,000.00} Dollars within thirty (30) days following the occurrence (to the City's reasonable satisfaction) of all of the following: (~) the Company completes construction of the Phase I Building with an aggregate square footage of at least 80,000 square feet, (B) the City has issued a certificate of occupancy for the Phase I Building, and {C) the City has received a copy of the LEED certification for the Phase I Building. (ii) Phase II Building Grant. The City agrees to pay to the Company a Building Grant (the "Phase II Building Grant") in the amount of Fifty Thousand ($50,000.00) Dollars within thirty (30) days following the occurrence (to the City's reasonable satisfaction) of all of the following: (A) the Company completes construction of the Phase II Building with an aggregate square footage of at least 40,000 square feet, (B} the City has issued a certificate of occupancy for the Phase II Building, and {C) the City has received a copy of the LEED certification for the Phase II Building. (iii) Forfeiture of Right to Receive Building Grants. The Company agrees and acknowledges that the Building Grants provided for in this Section 2(b) are being made by the City to the Company in consideration for the Company's agreement to construct the Buildings and expand its operations and workforce within the City. The Company further agrees that if the requirements of either Subsections 2(b){i) or 2(b)(ii) are not satisfied, the City shall not be obligated to make the respective Building Grant required by those Subsections. (iv) Standard of Conduct by City. In all matters related to the review, administration and granting of a certificate of occupancy in connection with Section 2(b), the City will act in good faith with all reasonable dispatch. In all matters related to the review and administration of any request for rezoning, variance or similar legislative or administrative change to area and use standards sought for the Site by Company in furtherance of it construction plans, City «~ill make it best efforts to expedite its review. [Further, so long as the format of this Agreement is finalized in time for its placement on the April 7, 2008 agenda of City Council, the City's Economic Development Director will apprise City Council of Company's Site development plans and the need for any associated rezoning and,ior variance.] (c) Workforce Retention,~Expansion Cn•ant. {i) Calculation of Actual Withholdings. On or before Iti~Iarch 15 of each of the years 2011 thru 2018, the City shall calculate the actual payroll withholding taxes collected during the preceding calendar year by the City from all Employees. For purposes of this Section 2, "En~~lo}%ees" shall include only those individuals employed by the Company or an Affiliated Entity working at the Buildings or at offices located within the City. For purposes of Section 2, "Affiliated Entity" shall mean any entity listed on EXHIBIT B or any entity controlled by or under common control «-~ith the Company and, "controlled by" or "under common control with" will refer to the possession, directly or indirectly, of the legal po«-~er to direct or cause the direction of the management and policies of an entity, whether through the exercise of, or the ability to exercise, voting power or by contract. The Parties agree that the Company may revise EXHIBIT B from time to time in a manner consistent with this Agreement, subject to the City's prior written approval which approval shall not be unreasonably withheld. (ii) Information Relating to Employ. The Company agrees that, in accordance with the Dublin City Code, the annual payroll reconciliation and related W-2 forms relating to all Employees will be provided to the City prior to February 28 of each calendar year. (iii) Incentive Payments to the Company. If the actual payroll «- ithholding taxes collected during the then preceding calendar year by the City fiom all Employees, net of refunds {"Actual u~'ithholdings"), meet or exceed the Target Withholdings for that preceding calendar year, the City shall, on or before April 15 of the then current calendar year, pay to the Company, solely from nontax revenues, an amount equal to the product of (A) an amount equal to the Actual Withholdings, multiplied by {B) the Incentive Factor (as defined below) {the "Incentive Payment"); provided, however, that the City shall not be required pursuant to this Section 2(c) to remit an Incentive Payment to the Company in excess of $85,000. (iv) Withholdings and Incentive Pa,~. With respect to the Actual Withholdings collected during each of the calendar years 2010 through 2017, inclusive, the Incentive Factor shall be twenty percent (20%). The Target Withholdings for each of the calendar years 2010 through 2017 shall be: Calendar Year Target ~Yithlioldvi6s 2a 1 a $27a,aaa 2x11 $3aa,aaa 2x12 $34a,aaa 2x13 $391,68a 2a 14 $399,514 2x15 $4a7,5a4 2x16 $415,654 2a 17 $423,967 (v} Forfeiture of Right to Receive Incentive Payment(s). The Company agrees and acknowledges that the Incentive Payments provided for in Section 2{c) are being made by the City to the Company in consideration for the Company's agreement to relocate its main office and associated workforce and to expand its operations and ti~•orkforce within the City. The Company agrees that if the Target Withholding requirement is not met for any given year as set forth in Subsection 2(c)(iv) above, the City shall not be obligated to make any Incentive Payment to the Company for the calendar year in respect of which the Target Withholding requirement was not satisfied. Failure to meet the Target y~4'ithholding requirement in respect of any one calendar year does not prohibit the Company from receiving an Incentive Payment for any subsequent calendar year in respect of «~hich the Target tt~ithholding requirement is satisfied. (d) Method of Payment. The payments provided for in this Section 2 shall be made by the City to the Company by electronic funds transfer or by such other manner as is mutually agreed to by the City and the Company. {e) City's Gbli~ation to Make Payments Not Debt; Payments Limited to Non-Tax Revenues. Notwithstanding anything to the contrary herein, the obligations of the City pursuant to this Agreement shall not be a general obligation debt or bonded indebtedness, or a pledge of the general credit or taxes levied by the City, and the Company shall have no right to have excises or taxes levied by the City, the State or any other political subdivision of the State for the performance of any obligations of the City herein. Consistent with Section 13 of Article ~jIII, Ohio Constitution, any payments or advances required to be made by the City pursuant to this Section 2 shall be payable solely from the City's non-tax revenues. Further, since Ohio law limits the City to appropriating monies for such expenditures only on an annual basis, the obligation of the City to make payments pursuant to this Section 2 shall be subject to annual appropriations by the City Council and certification by the Director of Finance of the City as to the availability of such non-tax revenues. For purpose of this Agreement, "nantax revenues" shall mean, all moneys of the City which are not moneys raised by taxation, to the extent available for such purposes, including, but not limited to the following: (i) grants from the United States of America and the State; (ii) payments in lieu of taxes now or hereafter authorized to be used for the purposes by State statute; (iii) fines and forfeitures which are deposited in the City's General Fund; {iv) fees deposited in the City's General Fund from properly imposed licenses and permits; (v) investment earnings on the City's General Fund and which are credited to the City's General Fund; (vi) investment earnings of other funds of the City that are credited to the City's General Fund; (vii) proceeds from the sale of assets which are deposited in the City's General Fund; and (viii) rental income which is deposited in the City's General Fund; (ix) gifts and donations. (f) Applicable City Payroll Tax Rate. For purposes of calculating the Actual t~'ithholdings in each calendar year under this Section 2, the City's payroll tax rate shall be assumed to be two percent (2%). (g) Other City Incentives. (i) Traffic Signals and Turn Lanes. The City agrees to finance, construct and install turn lanes and other traffic improvements which are sufficient to permit right and left hand turns by traffic coming in and out of the Site in a location to be determined in the sole, reasonable discretion of the City to be necessary to facilitate the development of the Site. The City further agrees to complete such turn lane improvements no later than the date on «-•hich the City issues a certificate of completion for the Phase I Building. A traffic signal will be considered for installation and activation by the City at its sole expense at the intersection of Emerald Parkway,`Innovation Drive if traffic volumes satisfy one of the warrant thresholds established in the Ohio Manual of Uniform Traffic Control Devices. Volume ~~~arrant thresholds for Warrants 1, 2 or 3 shall be acceptable triggers to consider the installation and activation of a traffic signal or other appropriate intersection traffic control at the sole discretion of the Citv. (ii) Rig~rt of Wa~and Easement Acquisition. The Parties acknowledge that the Company has commissioned the preparation of a traffic impact study for the area around the Site (the "Tr°a~c Impact Study"). Based on the results of the Traffic Impact Study, the Parties agree to work in good faith to identify the right-of--way «~hich may be required by the City to undertake the improvements identified in Subsection 2(g)(i) and such other public utility improvements for which the City must provide access. The City agrees to acquire said right-of--way from the Company at a price per acre equal to the price paid by the Company to acquire said real property (the "ROUYPrice") and at such time as is required to facilitate the construction ofthe respective Buildings and the improvements identified in Subsection 2(g)(i). The City and the Company agree that the purchase price paid by the City for the right- of-way shall be deducted from the amount of the Incenti~~e Payments computed pursuant to Section 2(c) in the following manner: The ROW Price shall be applied against Incentive Payments to be paid from the latest year of eligibility under this Agreement (2017), and to the extent that Incentive Payment is not reasonably projected to be sufficient, to each earlier year successively as necessary. The City and the Company shall agree to mutually determine a projection of Incentive Payments for the years necessary to accomplish the deduction, which projection shall in no event be less than the average of the last occurring calendar year's Incentive Payment and the annualized projected Incentive Payment to be paid during the calendar year in which the right-of--way acquisition is made. This projection shall govern the selection of the calendar year(s) in which the deduction will be made. In the event that the remaining years available for Incentive Payments would not reasonably allow the deduction to fully recover the ROtA~ Price, the Company shall be obligated to remit to the City the amount of the ROW Price not theretofore deducted from a prior year's Incentive Payment. Such amount (if any) shall be remitted to the City no later than April 30, 2018. City further desires that Company grant an easement to City in order that existing portions of bikepaths serving the City may be joined, and that there may be public use of the bikepath ~~~ithin that portion of the easement area. City agrees to use funding from the Tax Increment Financing ("TIF") district in which the Property is situated to pay for the construction of a footbridge and other amenities similar to a park within the area. of the easement on a reasonably expeditious manner. A site plan of the proposed easement area is attached hereto as Exhibit C. (iii) Utility Line Burial. The City and the Company ackno~~-•ledge that the Buildings may be impacted by a nearby overhead electric utility line {the "Electric Utility Lire") which is owned and operated by American Electric Power. The City and the Company agree that the Buildings would benefit from the burial of the Electric Utility Line which burial is estimated to cost $375,444. The City agrees to act in good faith to pay for and, working with American Electric Power, cause the burial of the Electric Utility Line no later than December 31, 2412; provided that, the Company acknowledges and agrees that the burial of the Electric Utility Line will not be undertaken without the cooperation of American Electric Power. The City represents that to the best of its knowledge that :4merican Electric Power is willing to cooperate with the City in this endeavor. The Company further agrees that if the cost of busying the Electric Utility Line is estimated to exceed $454,444 at the time such burial is to be undertaken, the City will not be obligated to undertake such burial unless the Company agrees to pay the cost of burial over $454,444. (iv) Zoning and Plan Review Processes. The City agrees to work cooperatively with the Company and its consultants in connection with the preparation by the Company of the development plans for the Buildings to facilitate compliance by the Company with the City's zoning and planning standards and the related review process. (v) State Incentives. The City agrees to work in a reasonable and cooperative manner with the Company to assist the Company in securing further funding from the State to further facilitate the Company's workforce expansion program. Section 3. I~~Iiscellaneous. (a) Assignment. This Agreement may not be assigned without the prior written consent of all non-assigning Parties, such consent not to be unreasonably withheld, conditioned or delayed. No consent shall be required for an assignment arising out of operation of law by reason of merger, restructuring or sale of substantially all of the assets of the Company; provided, hoiveve~, no such assignment shall be effective until thirty (34) days following receipt by the City of written notification from the Company. (b) Binding Effect. The provisions of this Agreement shall be binding upon the successors or assigns of the Parties. (c) Captions. The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement. (d) Day for Performance. Wherever herein there is a day or time period established for performance and such day or the expiration of such time period is a Saturday, Sunday or legal holiday, then such time for performance shall be automatically extended to the next business day. (e) 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. (f) Events of Default and Remedies. Except as othert~-~ise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by any Party hereto, such defaulting Party shall, upon written notice from any non-defaulting Party, 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 (3Q) day period, then in such event the defaulting Party shall upon written notice from any non-defaulting Party commence its actions to cure or remedy said breach within said thirty (30) day period, and proceed diligently thereafter to cure or remedy said breach. In case such action is not taken or not diligently pursued, or the default or breach shall not be cured or remedied within a reasonable time, the aggrieved non-defaulting 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 defaulting Party. The obligation to attain and maintain employment levels specified by this Agreement shall not be subject to an action for specific performance. (g) 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. (h) 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 co~•~enant, obligation or agreement shall be deemed to be a co~•~enant, obligation or agreement of any present or future member, officer, agent or employee of the City or the Company other than in his or her official capacity, and neither the members of the legislative body of the 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 City and the Company contained in this Agreement. (i) Governing Laty. 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 the City, its agents and employees, and the Company, its employees and agents, arising out of or relating to this Agreement or its breach will be decided in a court of competent jurisdiction within Franklin County, Ohio. (j) Legal AuthoritX. The Parties respectively represent and covenant that each is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. The Parties further respectively represent and covenant that this Agreement has, by proper action, been duly authorized, executed and delivered by the Parties and all steps necessary to be taken by the Parties have been taken to constitute this Agreement, and the covenants and agreements of the Parties contemplated herein, as a valid and binding obligation of the Parties, enforceable in accordance ~~~ith its terms. (k) Limit on Liability. Notwithstanding any clause or provision of this Agreement to the contrary, in no event shall City or the Company be liable to each other for punitive, special, consequential, or indirect damages of any type and regardless of «-•hether such damages are claimed under contract, tort (including negligence and strict liability) or atiy other theory of law. (1) 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 «-•riting and shall be deemed sufTiciently given if actually received or ifhand-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 Ue deemed to have been received when the retL~rn receipt is signed or refused. For purposes of this Agreement, notices shall be addressed to: {i) the City at: City of Dublin, Ohio 5800 Shier Rings Road Dublin, Ohio 43016-7295 Attention: Economic Development Director {ii) the Company at: Interstate Gas Supply, Inc. 5020 Bradenton A~•~enue Dublin, Ohio 43017-3560 Attention: David Warner, Chief Financial Officer 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. (m) Provisions of Compan,~jections. This Agreement contains certain projections by the Company as to its business operations, total payroll and employment. The City acknowledges that the Company has not warranted that the projections contained «-•ithin this Agreement ~~•ill actually be met, and that general business, energy industry and regulatory factors not t~~ithin the control of the Company may substantially impair the ability of the Company to reach any such projection. The failure of the Company to reach any economic projection contained in this Agreement shall result in no liability to the Company, other than to be ineligible for any City Incentive which specifically incorporates a target to be met or action to be made by the Company for its eligibility. (n) Recitals. The Parties acknowledge and agree that the facts and circumstances as described in the Recitals hereto are an integral part of this Agreement and as such are incorporated herein by reference; provided, however, that the provisions of Section 2(b)(i), (ii) and (iii) shall be the sole and exclusive criteria to the a~~-~ard of the Land Cost Reimbursement grants, and the provisions of Section 2(c)(i) through {v) inclusive shall be the sole and exclusive criteria to the award of Incentive Payments, and that the av~ard of other City Incentives shall be governed by their operative provisions in Sections 2(g)(i) through {v) inclusive, notwithstanding any inaccuracy, material omission or failure of any act to occur as set forth in the Recitals. (o) Severability. If any provision of this Agreement, or any covenant, obligation or agreement contained herein is determined by a court to be invalid or unenforceable, that determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained herein. That invalidity or unenforceability shall not affect any valid and enforceable application thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. (p) Survival of Representations and Warranties. All representations and warranties of the Parties in this Agreement shall survive the execution and delivery of this Agreement. (REII~IAINDER OF PAVE INTENTIONALLY" LEFT BLANK -SIGNATURE PAGE FOLLOt?VS) IN WITNESS WHEREOF, the City and the Company have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as of the date first «~°ritten above. CITY ©F DUBLIN, ©HIO Bv: Printed: Jane Brautigam Title: City I~Iana~er Approved as to Form: By Printed: Stephen J. Smith Title: Director of Law INTERSTATE GAS SUPPLY, INC. Bv: Printed: Title: FISCAL OFFICER'S CERTIFICATE The undersigned, Director of Finance of the City under the foregoing Agreement, certifies hereby that the moneys required to meet the obligations of the City 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 «-~ith Sections 5705.41 and 57175.44, Ohio Revised Code. Dated: , 2008 Marsha I. Grigsby Deputy City IVlanager/Director of Finance City of Dublin, Ohio EXHIBIT A Depiction of Site far Buildings EXHIBIT B List of affiliated Entities Name of Affiliated Entity Employer ID Number Crossfire Energy Group, Inc. (TBD) Emerald Innovation Properties, LLC, and its subsidiaries 26-1708453 Interstate Gas Supply of New York, Inc. 20-2372279 Interstate Gas Supply of Illinois, Inc. 20-245202 Interstate Gas Supply of Indiana, Inc. 22-2372224 The Manchester Group, LLC 20-4313286 Atlantic Global Polymers, LLC 26-1140995