Ordinance 091-14RECORD OF ORDINANCES
Da" Ltgal Blank, Inc.
Ordinance No. 91 -14
.. _ rro— No. 3W43
Passed _
AN ORDINANCE AUTHORIZING THE PROVISION OF CERTAIN
INCENTIVES TO INDUCE A COMPANY TO LOCATE DATA
CENTER FACILITIES AND ASSOCIATED OPERATIONS AND
WORKFORCE WITHIN THE CITY, AND AUTHORIZING THE
EXECUTION OF AN ECONOMIC DEVELOPMENT AND REAL
ESTATE PURCHASE AGREEMENT, AND DECLARING AN
EMERGENCY.
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 development and create and
preserve jobs and employment opportunities within the City; and
WHEREAS, Vadata Inc. (the "Company] recently performed a comprehensive
examination of its needs, and based on the results of this examination, and induced by
and in reliance on the economic development incentives provided in the proposed
Economic Development and Real Estate Purchase Agreement (as described below),
the Company desires to construct facilities, begin operations and establish a workforce
within the City; and
WHEREAS, this Council has determined that it is necessary and appropriate and in
the best interests of the City to provide for certain economic development incentives
to the Company, including but not limited to the conveyance of land owned by the
City, as described in the proposed Economic Development and Real Estate Purchase
Agreement; and
WHEREAS, this Council has determined to offer the economic development incentives,
the terms of which are set forth in a substantially final form of Economic Development
and Real Estate Purchase Agreement presently on file in the office of the Gerk of
Council, to induce the Company to construct facilities, begin operations and establish a
workforce, all within the City, which will result in the possible creation of new jobs and
employment opportunities within the City, thereby improving 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.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of
Ohio, f., of the elected members concurring, that:
Secti 1. The Economic Development and Real Estate Purchase Agreement by and
between the City and the Company, in the form presently on file with the Clerk of
Council, providing for, among other things, the provision of certain economic
development incentives in consideration for the Company's agreement to construct
facilities, begin operations establish a workforce within the City, which will result in the
possible creation of new jobs and employment opportunities 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.
The City Manager, for and in the name of this City, is hereby authorized to execute that
Economic Development and Real Estate Purchase Agreement, provided further that
the approval of changes thereto by that official, and their character as not being
substantially adverse to the City, shall be evidenced conclusively by the execution
thereof. This Council further authorizes the City Manager, for and in the name of the
City, to execute any amendments to the Economic Development and Real Estate
Purchase Agreement, which amendments are not inconsistent with this Ordinance and
not substantially adverse to this City.
Section 2. This Council further hereby authorizes and directs the City Manager, the
Director of Law, the Director of Finance, the Clerk of Council, or other appropriate
RECORD OF ORDINANCES
Dayton Legal Blank, Inc.
91 -14
Ordokwice No. Passed
Page 2 of 2
Fort No 30613
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 3. This Council finds and determines that all formal actions of this Council and
any of its committees concerning and relating to the passage of this Ordinance were
taken in open meetings of this Council or committees, and that all deliberations of this
Council and any of its committees that resulted in those formal actions were in meetings
open to the public, all in compliance with the law including Section 121.22 of the
Revised Code.
Section 4. This Ordinance shall be in full force and effect on the earliest date
permitted by law.
Signed:
�r i- /
l l�yor - Presiding Offleer
* if
of ncil
Passed: 2014
Effective: 2�- 2014
Office of the City Manager
5200 Emerald Parkway* Dublin, OH 43017 -1090
Phone: 614 - 410 -4400 . Fax: 614 - 410 -4490
C '1 ty i it
of Dublin
To: Dublin City Council
From: Marsha I. Grigsby, City Manager
Date: September 19, 2014
Initiated By: Dana McDaniel, Director of Development
Colleen Gilger, Economic Development Director
Memo
Re: Ordinance 91 -14 - Economic Development And Real Estate Purchase Agreement
with Vadata Inc.
Background
Since the introduction of Ordinance No. 91 -14 and the proposed Economic Development
Agreement (EDA) to Council at its September 8, 2014 meeting, Staff and Vadata, Inc. have
continued to discuss the proposed EDA. Several changes to the proposed EDA have been made
since last presented to Council. Attached is the revised EDA for your review.
Key changes to the proposed EDA are summarized as follows:
Performance requirements, namely the amount of construction and jobs created, remain
unchanged. The language relative to performance requirements are very consistent with most all
previous EDA's approved by Council and comply with State statute and City Code requirements.
The proposed EDA has an additional requirement for the company to perform certain site
preparations within the first year from issuance of a permit. This allows for an additional option for
the land to be re- conveyed to the City or for the company to purchase the property. The
proposed EDA also still requires a land payback schedule in the agreement should the company
not complete the agreed upon square footage of new construction before December 2024. This
section is highlighted in yellow in the attached EDA.
A fundamental issue that has been raised by the Company is their need for perimeter fencing to
maintain adequate security for the facilities and to ensure the public safety. Facilities such as these
are high users of electric power. Given their co- location with the new Amlin Substation and the
potential expansion of additional electrical substation facilities, perimeter fencing should be
installed to prevent access to the site, similar to other electric substations and maintenance
facilities within the City. The fencing desired by the Company is a palisade style fencing at a
maximum height of 12' as illustrated in the attachment. The Agreement would permit a deviation
from the City Code to allow construction of the fence. Fence placement, landscaping and
mounding would be reviewed by Dublin Staff and subject to Staff approval. The Company must
comply with all other requirements of the ID -3 District or seek appropriate approval of deviations
Memo re: ORD 91 -14
September 19, 2014
Page 2 of 3
from these requirements. Staff desires Council to address this issue as part of its consideration of
this EDA to promote the speed -to- build - development environment intended with the original West
Innovation District code changes. Even though data center uses were anticipated in the district,
fencing requirements for facilities of this nature were not yet understood at the time the West
Innovation District Code was adopted. This section is highlighted in yellow in the attached EDA.
Recommendation
Staff recommends Council passage of Ordinance 91 -14 by Emergency at the second reading /public
hearing on September22, 2014 and requests Council waive the 30 -day waiting period.
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Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
Phone: 614-410-4400 • Fax: 614-410-4490
City of Dublin
To: Dublin City Council
From: Marsha I. Grigsby, City Manager
Date: September 5, 2014
Initiated By: Dana McDaniel, Director of Development
Colleen Gilger, Economic Development Director
Memo
Re: Ordinance 91 -14 - Economic Development And Real Estate Purchase Agreement
with Vadata Inc.
Background
The West Innovation District is the city's business area targeted for new development of high -tech
office space, research and development, information technology, clean manufacturing facilities,
and related supporting purposes. The site under consideration consists of a portion of the city-
owned land in the West Innovation District.
Council may recall that the key initiative regarding the West Innovation District is to develop a
research park, previously referred to as the Central Ohio Innovation Center (COIC). As early as
2004, the City worked with O'Brien /Adkins Associates (OBA), most known for its master planning
of the Research Triangle Park in North Carolina. Some specific recommendations regarding the
establishment of a research park were made by OBA:
• Recruit typical drivers of a research park to include technology development, i.e.
information technology, computer /electronics, software, medical and biotech.
• One or more research institutes should serve as an anchor due to the level of research and
promotion of new company attraction and creation.
• Put the following in place: critical infrastructure (fiber optics, robust/redundant electrical
service, utilities, and transportation network), predictive path to regulatory approval and
reasonable land costs.
Recently, the City has experienced the development of projects meeting this desired end state:
• The Ohio University Heritage College of Osteopathic Medicine Central Ohio campus.
• Ohio University's development of an Allied Health Services program and new facility,
currently under construction on the campus.
• The significant expansion of the Nestle Quality Assurance Center, the "light house" of
Nestle North and South America quality laboratories.
• The development of Ohio Health's Dublin Methodist Hospital and associated hospital
support services. This has been a critical component in the synergy and opportunities
regarding the Heritage College of Osteopathic Medicine.
• The addition of AEP's new substation.
In late 2011, Economic Development staff presented the findings of the Battelle Technology
Partnership's Cluster -based Economic Development Strategy. The study cited Information
Technology /Data as a significant emerging cluster in Dublin that continues to gain strength,
Memo re. Ord. 91 -14 — Vadata, Inc.
September 5, 2014
Page 2 of 3
evidenced by IBM's global data analytics facility choosing to locate near Tuttle Crossing and
Emerald Parkway recently.
Also in 2011, City Council passed new zoning regulations and rezoned the West Innovation area,
including the city -owned property. The new Innovation District zoning set the condition to promote
a speed -to- build - development environment aligned with research, high -tech industry and other
related commercial uses.
Project Summary
Economic Development staff has been in discussions with Columbus 2020, which is representing a
company from outside the Region, regarding a multi -state competition for a large data center
attraction project interested in a parcel on the City -owned West Innovation District Job Ready Site.
Staff proposes the attached Economic Development Agreement and Real Estate Purchase
Agreement for Council's consideration as a means to induce Vadata Inc. to invest in, establish and
potentially expand operations providing significant value to the City's emerging Information
Technology cluster, and serving as an additional anchor to the City's West innovation District.
The EDA/REPA includes the transfer of approximately 68.7 acres of City -owned land to, for the
purposes of constructing at least 750,000- square -feet of office, data center and related facilities
from 2015 -2024. The total value of the land incentive is approximately $6.75 million. Additionally
the City proposes a 10% Performance Incentive on employee withholdings paid, with a maximum
value of $500,000 over 10 years. The City proposes to extend public water and sanitary sewer to
the site via a new entry road, also to be designed and extended by the City. We will bring forward
at a later date a Tax Increment Financing (TIF) Ordinance to facilitate the City's construction of
public improvements to the area.
The State of Ohio Tax Credit Authority reviewed state -level incentives at its August 2V meeting
tied to this project. Incentives proposed from the Jobs Ohio include road /infrastructure money up
to $1.5 million to the local municipality. Dublin plans to use these funds, if approved, to extend the
public infrastructure improvements to the site.
In return, we expect the company to create hundreds of jobs: through full -time equivalent
employees, contractors and construction workers at the site, in addition to investing in the
construction of new facilities, equipment and fiber optics. As a risk - mitigating tactic, the City is
requiring site preparations within the first year after closing and a land payback schedule in the
agreement should the company not finish constructing at least 750,000 square feet before
December 2024.
This project will serve as another anchor tenant in the West innovation District. It has the potential
to attract and create an Information Technology supply chain, helping solidify Dublin's position as
a leader in this business sector. The project plans to bring significant, critical infrastructure for
fiber optics and broadband expansion. This project also has the ability to promote Dublin as an
industry leader location, providing career opportunities for the growing technology workforce.
Finally, per the zoning already in place, this site and the project match the Community Plan vision
for placing the highest and best use on the right site in our community.
Memo re. Ord. 91 -14 — Vadata, Inc.
September 5, 2014
Page 3 of 3
Recommendation
Staff recommends Council passage of Ordinance 91 -14 by Emergency at the second reading /public
hearing on September22, 2014, waiving the 30 -day waiting period. Should any changes be
proposed prior to the second reading of this Ordinance, staff will submit a report to Council
explaining any such changes to the documents. Please contact Colleen Gilger or Dana McDaniel
with any questions.
ECONOMIC DEVELOPMENT AND
REAL ESTATE PURCHASE AGREEMENT
THIS ECONOMIC DEVELOPMENT AND REAL ESTATE PURCHASE
AGREEMENT (this "Agreement ") is made and entered into on this day of
2014 (the "Effective Date', by and between VADATA, INC. (the "Company"),
a Delaware corporation, and the Crnr of DUBLIN (the "City"), an Ohio municipal corporation duly
organized and validly existing under the Constitution and the laws of the State of Ohio (the "State ")
and its Charter. The Company and the City may hereinafter be referred to individually as a
"Party", or collectively as the "Parties."
Background Information
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 development and create and preserve jobs and employment
opportunities within the City; and
WHEREAS, based on the results of the Company's recent comprehensive examination of its
business needs, and induced by and in reliance on the economic development incentives provided
in this Agreement, the Company expects to build multiple facilities in the City which will
encompass at least 750,000 square feet (collectively, the "Facilities "), which will be owned by the
Company and enable it to locate certain elements of its business operations and workforce within
the City; and
WHEREAS, the Parties recognize that the exact legal and financing structure used by the
Company in the development, construction and operation of the Facilities may include additional
legal entities, provided that any such legal entity shall be controlled by or under common control
with the Company and, "controlled by" or "under common control with" will refer to the
possession, directly or indirectly, of the legal power to direct or cause the direction of the
management and policies of such a legal entity, whether through the exercise of, or the ability to
exercise, voting power or by contract (any such additional legal entity shall be referred to herein
as an "Affiliate "), and the Parties further recognize that such structures may evolve prior to and
during the operation of the Facilities; and
WHEREAS, to facilitate the proposed building of the Facilities and to promote the creation
of new employment opportunities within the City, the City has agreed to the sale of a parcel of
land owned by the City and depicted on Exhibit "A" (the "Property") for a purchase price of One
Dollar ($1.00) and other valuable consideration provided herein, including construction of the
Facilities by December 31, 2024 and the Company's expectation that it will create at least 25 full -
time jobs in the City by 2018; and
WHEREAS, the Property is zoned as Innovation District 3 and certified by the State as a Job
Ready Site for the Company's proposed use; and
2870260.13
WHEREAS, the City recently had the property appraised at One Hundred Thousand Dollars
($100,000) an acre; and
WHEREAS, pursuant to Ordinance No. 91 -14 passed on 2014 (the
"Ordinance "), the City has determined to offer the economic development incentives described
herein to induce the Company to construct the Facilities within the City, which the City expects will
result in the creation by the Company of at least 25 full -time jobs in the City by 2018 and will
improve the economic welfare of the people of the State and the City, all as authorized in Article
VIII, Section 13 of the Ohio Constitution.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the City and the Company covenant, agree and obligate themselves
to the foregoing Background Information and as follows:
Article I
Economic Development
Section 1. Company's Aueement to Construct Facilities and Locate Certain of Its
Operations and Workforce Within the City In consideration for the economic development
incentives to be provided by the City herein, the Company agrees that it will construct the
Facilities, which may include an office, and create employment opportunities within the City, all
consistent with the terms of this Agreement. The Company agrees that by the timeframes outlined
in Section II.2.(c)(i) it will complete or be in the process of diligent construction of the initial site
work as set forth on Exhibit "C" for the first of its Facilities, consistent with the "to be" permitted
design drawings. The Company expects to create twenty -five (25) full -time employee positions
within the City by December 31, 2018, but failure to do so will not be deemed to be a breach,
default or violation by the Company of this Agreement. The term "diligent construction" shall be
defined as the Company's substantial completion or active construction of all the initial site work
set forth on Exhibit "C ".
Section 2. City Agreement to Provide Incentives
(a) General In consideration for the Company's agreement to construct the Facilities
and its expectation to create employment opportunities within the City, the City agrees to provide
economic development incentives to the Company in accordance with this Section.
(b) Workforce Creation Incentive
(i) Calculation of Actual Payroll Wit Wlding Taxes On or before March 15
of each of the years 2017 through 2026, the City shall calculate the actual payroll withholding
taxes collected and received by the City from all Employees (as defined below) during the then
preceding calendar year. For purposes of that calculation, the Company acknowledges and agrees
that the total amount of actual payroll withholding taxes in respect of any calendar year shall be
2870260.13
determined based solely upon the amount of payroll withholding tax payments actually received
by the City from the Company or any Affiliate during that calendar year. For purposes of this
Section 1.2, "Employees" shall include only those individuals employed on a full -time basis by the
Company or an Affiliate and working within the City.
(ii) Information Relating to Em 10 ees. The Company acknowledges that the
Dublin City Code requires that the Company submit an annual payroll reconciliation and related
W -2 forms relating to its Employees to the City prior to the applicable deadline (currently February
28 of each calendar year), subject to the exercise of any right the Company may have under
applicable law, for example, to seek an extension of the due date. The City agrees that any such
tax information constitutes confidential taxpayer information and may not be disclosed by the City
to any third party in response to a public records request or otherwise.
ui Emplo Identification Number. The Company's Employer Identification
Number is 0". The Company agrees that if the Employer Identification Number changes
at any time during the term of this Agreement, the Company will promptly notify the City of such
change, including the new Employer Identification Number. The Company acknowledges that
failure to timely report any change in the Employer Identification Number to the City may result
in a delay of any payment which the City is required to make pursuant to this Section 1.2. The
Company further agrees that, to the extent any Employee is employed by an Affiliate, the Company
will promptly provide relevant information regarding such Affiliate to the City, including at a
minimum the legal name of the Affiliate and the Affiliate's Employer Identification Number.
(iv) Annual Incentive Pa eats to the Com an If the actual payroll
withholding taxes collected and received by the City pursuant to Section 1.2(b)(i) for a given
calendar year from all Employees, net of refunds (such amount being referred to as the "Actual
Withholdings "), exceeds zero dollars, the City shall, on or before April 15 of the then current
calendar year, pay to the Company or an Affiliate designated by the Company in writing to the
City (the "Payment Recipient "), solely from nontax revenues (as defined in Section I.2(d)), an
amount equal to the product of (A) an amount equal to the Actual Withholdings multiplied by (B)
ten percent (10 %) (with each such product being referred to as an "Annual Incentive Payment");
provided, however, that the aggregate amount of all Annual Incentive Payments remitted pursuant
to this Section I.2(b) by the City to the Payment Recipient shall not exceed Five Hundred Thousand
and 001100 Dollars ($500,000.00).
(v) Forfeiture of Right to Receive Workforce Creation Incentive Payment. The
Company agrees and acknowledges that Annual Incentive Payments provided for in Section I.2(b)
are being made by the City to the Payment Recipient in consideration for the Company's
agreement to construct the Facilities and its expectation to create employment opportunities within
the City. The City and Company further agree that if the Actual Withholdings for any given
calendar year do not exceed zero dollars, the City shall not be obligated to make an Annual
Incentive Payment to the Payment Recipient for the calendar year in respect of which the Actual
Withholdings did not exceed zero dollars. If the Actual Withholdings in any one calendar year do
not exceed zero dollars, such failure will not prohibit the Payment Recipient from receiving an
Annual Incentive Payment for any subsequent calendar year in respect of which the Actual
Withholdings do exceed zero dollars.
2870260.13
(c) Method of Payment The payments to be paid to the Payment Recipient as provided
in this Section I.2 shall be made by the City to the Payment Recipient by check, electronic funds
transfer or other means as is mutually agreed to by the City and the Payment Recipient.
(d) City's Obligation 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 neither the Company not any Affiliate shall have
any 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 VIII, Ohio Constitution, any payments or advances required to be made by the City pursuant
to this Section I.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 I.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, "nonlax 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; (viii) rental
income which is deposited in the City's General Fund; and (ix) gifts and donations.
ARTICLE 11
REAL ESTATE PURCHASE
Section 1. Sale of Real Property The City hereby agrees to sell the Property to the Company
or an Affiliate, and the Company hereby agrees to purchase the Property from the City, upon the
terms and conditions of this Agreement for the sum of One Dollar ($1.00).
Section 2. Consideration to City The Company agrees as follows:
(a) To construct on or before December 31, 2024 (which date shall be extended day
for day for any construction delays or Force Majeure Events beyond the Company's reasonable
control) evidenced by at least a conditional occupancy permit for Seven Hundred Fifty Thousand
(750,000) square feet of Facilities on the Property. If the Company fails to meet the condition in
this Section II.2(a), the Company agrees to by January 31, 2024 reimburse the City pursuant to the
following formula which the City hereby acknowledges and agrees to be the sole remedy for the
Purchaser's failure to meet the requirements of this Section II.2(a) as further described in Section
HL 12 hereof:
2870260 13
(750,000 — Total square footage of the Facilities)/ 750,000 = (Percentage less than
750,000) X ($[6,800,000] appraised value of the Property) = Amount to pay back
to the City. For purposes of the foregoing calculation, any portion of the Property
reconveyed to the City pursuant to Section II.2(c) shall not be included in either the
numerator or the denominator of the foregoing calculation.
(b) Except as otherwise provided Section 11.2(c), the Company or an Affiliate,
separately or jointly, shall maintain continuous ownership of the Property and Facilities through
the earlier of (i) the date on which the Company has constructed at least 750,000 square feet of the
Facilities and has satisfied the Employment Target; or (ii) December 31, 2024 (such date, the
"Compliance Date ").
(c) Reconveyance.
i. The Parties agree that if the Company or an Affiliate fails to complete or be
in the process of diligent construction of the initial site work as contemplated in Section
I.1, with additional time allowed on a day for day basis for events of Force Majeure as
defined herein, by the later of December 31, 2015 or one (1) year from receipt of a building
permit, the City shall have fifteen (15) days to notify the Company in writing that it is
either extending the deadline to a date certain or requesting reeonyence of the Property. In
the event the City exercises its right to extend the deadline to a date certain, the Company
shall be in the process of diligent construction of such work prior to the date certain (with
additional time allowed on a day for day basis for events of Force Majeure) or contest the
designation by the City. In the event the City exercises its right of reconveyance of the
Property, or the Company fails to complete or be in the process of diligent construction of
the site work by the extended deadline, the Company shall within fifteen (15) days provide
notice to the City in writing that it will either reconvey the Property to the City or reimburse
the City for the full appraised value of $[6,800,000], the payment for which must be
delivered to the city within thirty (30) days of Company's election to reimburse. Failure
to provide notice as stated herein is a waiver of any rights in this Section II,2(c).i. If the
Company is obligated, but fails, to so reconvey the Property to the City, the City shall be
entitled to seek such remedies as it deems reasonable to cause such reconveyance,
including. without limitation, the right to seek specific performance. No later than the later
of November 1, 2015 or the date that is forty-five (45) days prior to the one -year
anniversary of receipt of a building permit, the City shall notify the Company in writing of
any items included in Exhibit C that it deems are not in the process of diligent construction
and the Company shall either perform such work prior to the deadline described above or
contest the designation with the City.
ii. If at any time after the Company or an Affiliate fulfills its obligations and
commitments in Section I.1 but prior to the Compliance Date, the Company determines
that it will not develop any portion of the Property (the "Undeveloped Property") and
desires to sell, transfer or assign the Undeveloped Property to a person or entity that is not
an Affiliate of the Company, the Company shall provide the City with a right of first
opportunity to repurchase the Undeveloped Property, by delivering notice thereof to the
City (the "Offer Notice°'). The foregoing right of first opportunity shall not apply to a
287026013
transfer of any portion of the Property to a utility or other entity in connection with the
development of the Property and the Company's need for utility or other infrastructure,
which transfer shall follow the regular course of business for approval. If the City desires
to repurchase the Property then the City shall deliver to the Company written notice of such
election (the "Acceptance Notice ") within thirty (30) days of receipt of the Offer Notice, in
which event, the Parties shall reasonably work to close on the sale of the Undeveloped
Property to the City for a purchase price of One Dollar ($1.00), within Thirty (30) days of
the delivery of the Acceptance Notice, in which event, the Company shall have no further
obligations or liabilities with respect to the Undeveloped Property, unless otherwise
required by law (and will not be required to make any payment to the City under Section
II.2(a) with respect to such Undeveloped Property). If the City does not timely deliver the
Acceptance Notice, then the Company shall have the right to sell, transfer or assign the
Undeveloped Property at any time thereafter, and of such sale, transfer or assignment occurs
prior to the Compliance Date, the Company shall make a reimbursement payment to the
City at such time pursuant to the following formula:
(Acreage of the Undeveloped Property to be transferred / Total Acreage of the
Property) x $[6,800,000]
iii. Any portion of the Property reconveyed to the City pursuant to Sections
II.2(c)(i) or II.2(c)(ii) shall be reconveyed in a condition similar to the condition of such
Property as of the Effective Date, and free and clear of any mortgage or other encumbrance,
except those granted to any utilities in connection with the development of the Property or
any portion thereof.
Section 3. Due Diligence To the extent the City has not already done so, within Two (2) days
after the mutual execution of this Agreement, the City shall deliver to the Company any and all of
the following documentation, to the extent that such documentation and information is within the
possession or reasonable control of the City or any officer or agent of the City or can be secured
through ordinary means by the City or any officer or agent of the City: (i) copies of any tenant
leases with respect to the Property; (ii) copies of all material agreements with respect to the use or
operation of the Property; (iii) copies of all title policies, title commitments and surveys of the
Property; and (iv) copies of any and all hazardous waste or environmental audits, soil tests, utility
studies, water retention (storm sewer) and civil engineering drawings, studies, tests, examinations,
reports and other material documentation with respect to the physical and environmental condition
of the Property including but not limited to any orders, correspondence, consents, permits or
approvals from any governmental entities or authorities.
Section 4. Contingencies
(a) Environmental Inspection. Up and until the Closing (as hereinafter defined), the
City agrees to permit the Company, the Company's lender and any qualified, professional
environmental consultant or consultants retained by the Company or its prospective lender(s) to
conduct, at the expense of the Company, environmental site assessments of the Property as the
Company may deem necessary. The Company agrees to indemnify and hold harmless the City
from any injury or damage to persons, property and crops caused by such inspection and to restore
2870260.13
the Property to substantially the condition in which the same were found before such inspection.
If such assessment is obtained and the consultant recommends further inspection to determine the
extent of suspected contamination or recommends remedial action, the Company, at its option,
may notify the City in writing, within the above - specified period, that this Agreement is null and
void. Failure of the Company to deliver written notice -and copy of the environmental report(s)
within such time period shall constitute a waiver of the Company's right to terminate this
Agreement pursuant to this provision. The indemnification herein shall survive the termination of
this Agreement.
(b) ProWg InInspection. The Company, at its own expense, shall have up to closing to
have the Property including any and all improvements, fixtures and equipment contained thereon,
if any, inspected. The Company shall be permitted to complete any inspection including but not
limited to soil sampling and testing, soil boring and soil compaction tests, and inspections
regarding the availability of necessary utilities of the Property. The City shall cooperate in making
the Property reasonably available for such inspection(s). The Company agrees to indemnify and
hold the City harmless From any injury or damage to persons, property and crops caused by such
inspection(s) and to restore the Property to substantially the condition in which the same was found
before such inspection. If the Company is not, in good faith, satisfied with the condition of the
Property as disclosed by such inspection(s), the Company may terminate this Agreement by
delivering written notice of such termination to the City, along with a written copy of such
inspection report(s), within the time period specified above, such notice and report(s) shall specify
the unsatisfactory conditions. Failure of the Company to deliver written notice and copy of the
inspection report(s) within such time period shall constitute a waiver of the Company's right to
terminate this Agreement pursuant to this provision. The indemnification herein shall survive the
termination of this Agreement.
(c) Survey Approval. The Company may_, at its own expense, hire a surveyor
registered in the State to perform an ALTA survey (the "Survey ") and legal description of the
Property.
Section 5. Title Examination
(a) The Company may obtain, at its own expense and through a title company and/or
agency of its choosing in its sole discretion (the "Title Insurance Company"), a letter report
( "Letter Report") or an ALTA Commitment for Title Insurance (2006) (the "Title Commitment "),
which Letter Report or Title Commitment shall show all recorded liens and encumbrances
affecting the Property, as the case may be, and shall include copies of all documents referenced in
the Letter Report or Title Commitment. The Letter Report or Title Commitment obtained by the
Company shall show in the City good and marketable title to the Property, free and clear of all
liens, charges, encumbrances and clouds of title, whatsoever, except the following ( "Permitted
Encumbrances "):
i. Those created or assumed by the Company;
ii. Zoning ordinances;
287026013
iii. Legal highways and public rights -of -way;
iv. Real estate taxes which are liens on the respective properties, but which are not
yet due and payable; and
v. Covenants, restrictions, conditions and easements of record which do not
unreasonably interfere with the Company's and/or any of its Affiliates'
proposed use of the Property.
The Letter Report or the Title Commitment, as the case may be, shall fully and completely
disclose all easements, rights -of -way, and any appurtenant rights and easements affecting the
Property, as applicable, and shall show the results of a special tax search and examination for any
financing statements filed of record which may affect the properties.
(b) Title Insurance At the Closing (as hereinafter defined), the Company shall have
the right to purchase, at its own expense, title insurance coverage for the Property.
(c) Title Defects In the event that an examination of either the Title
Commitment/Letter Report or the Survey discloses any matter adversely affecting title to the
Property, or if title to the Property is not marketable, as determined by Ohio law with reference to
the Ohio State Bar Association's Standards of Title Examination, or in the event of any
encroachment or other defect shown by the Survey (the foregoing collectively referred to as,
"Property Defects "), the Company shall, within ten (10) business days following the later of the
Company's receipt of both the Title Commitment/Letter Report and Survey, provide the City with
written notice of any such Defects to which the Company is objecting. The City shall have five
(5) days following receipt of such written notice to cure or remove any such Property Defects to
the reasonable satisfaction of the Company or for the Company to complete its due diligence
review of the Property.
Section b. Possession and Closing.
(a) Closing Date The Property shall be closed through the
(the "Closing ") on a date elected by the Company on no less than five (5) business days'
notice, which notice shall be provided within ninety (90) days following the Effective Date and
which Closing date may be extended in writing by mutual agreement of the Parties and shall be
extended by such time, if any, as is necessary to cure any Property Defects as set forth in Section
II.5 hereof.
(b) Limited Warranty Deed At the Closing, the City shall convey to the Company fee
simple title to the Property, by validly executed, recordable limited warranty deed, free and clear
of all liens and encumbrances, except the Permitted Encumbrances applicable to the Property and
as stated in the instrument.
(c) Adiustments at Closing At the Closing, the City and the Company shall apportion,
adjust, prorate and pay the following items in the manner hereinafter set forth:
2870260.13
i. Real Estate Taxes, CAUV�and Assessments. The City shall pay to the
Franklin County Treasurer all delinquent real estate taxes, if any, together with penalties and
interest thereon, and assessments which are a lien against the Property as of the date of Closing
(both current and reassessed, whether due or to become due and not yet payable). At Closing the
City shall pay to the Company a portion of all real estate taxes for the year in which the Closing
occurs, prorated through the date of Closing. Any such proration of taxes shall be based upon a
365 day year. Said calculation at closing shall be final. Notwithstanding the foregoing, the
Company and the City acknowledge that the Property is currently valued as "Current Agriculture
Use Value" ( "CAUP ") property on the books of the Franklin County Auditor and Treasurer. The
City shall be responsible for any and all real estate tax recoupment owed on the Property for
removing it from CAUV.
ii. The City's Expenses. The City shall, at the Closing (unless previously
paid), pay the following expenses:
1. The cost of all municipal services and public utility charges (if any)
applicable to the Property due through the date of Closing;
2. One -half (1/2) the fee, if any, charged by the Title Insurance Company
for closing the transactions contemplated herein.
3. Any transfer taxes or deed stamps to the extent not exempt.
iii. The Com an 's Ex uses. The Company shall, at the Closing (unless
previously paid), pay the following expenses:
1. The cost of furnishing the Title Commitment/Letter Report for the
Property, and the premium for any owner's policy of title insurance for
the Property desired by the Company;
2. The cost of recording the limited warranty deed transferring title in the
Property to The Company;
3. The cost of any and all "due diligence" items conducted pursuant to
Section IIA herein;
4. One -half (1/2) the fee, if any, charged by the Title Insurance Company
for closing the transactions contemplated herein.
iv. Other ClosingCosts. All other closing costs and expenses not herein
referenced and not specifically attributable to either Party shall be shared equally by the Parties.
V. Brokers Each Party represents and warrants that no realtor's or finder's fees,
brokerage commissions, or other forms of compensation are due to any realtor or broker in
connection with this transaction.
2870260.13
vi. Other Documents. The Parties agree that such other documents as may be
legally necessary or appropriate to carry out the terms of this Agreement shall be executed and
delivered by the appropriate party to the Title Insurance Company at Closing. Such documents
shall include, but not be limited to, a settlement statement, affidavits regarding liens, unrecorded
matters and possession as may be reasonably requested by the Title Insurance Company
Section 7. Warranties And Representations Of The Parties
(a) The City hereby represents and warrants as follows:
L The City has not received any written notice or notices from any municipal,
county, state or any other governmental agency or body, of any zoning, fire, health,
environmental or building violation, or violation of any laws, ordinances, statutes
or regulations relating to pollution or environmental standards, which have not
heretofore been corrected;
ii. The execution, delivery and performance of this Agreement, and the
consummation of the transaction contemplated hereby, will not result in any breach
of, or constitute any default under, or result in the imposition of any lien or
encumbrance against, the Property, under any agreement or other instrument to
which the City is a party or by which the City or the Property might be bound;
iii. The City has no knowledge of any fact or condition which would result in
the termination or material limitation of the existing pedestrian and/or vehicular
access to the Property from abutting public roads;
iv. No other person or entity other than the Company has or will have any right
to acquire the Property, or any portion thereof, and except as set forth in Section
11. 12 below, no person or entity other than the Company has or will have any right
to use or occupy the Property from and after the Closing;
V. From the Effective Date through and until the Closing, the City shall not
enter into any easement, lease or other contract pertaining to the Property and shall
not modify or change the condition of the Property, unless the Company has
approved of such modification or change; and
vi. The City is not a "Foreign Person" as that tern is defined in the Foreign
Investment in Real Property Tax Act.
vii. The City's execution and delivery of, and performance under, this
Agreement is pursuant to valid authority duly conferred upon City and the signatory
hereto; and the consummation of the transactions contemplated hereby and the
compliance by City with the terms of this Agreement do not and will not conflict
with or result in a breach of any of the terms or provisions of any agreement,
arrangement, understanding, accord, document, or instrument to which City is a
party or by which City is bound, or constitute a violation of any law or ordinance
to which City is bound or subject.
2870260 13
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CITY HEREBY EXPRESSLY
DISCLAIMS AND NEGATES ANY .REPRESENTATIONS OR WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE CONDITION OF OR
VALUE OF THE PROPERTY. THE COMPANY IS PURCHASING THE PROPERTY "AS -IS
WHERE -IS" AND IS SOLELY RELYING ON ITS OWN DUE DILIGENCE AND
INSPECTION OF THE PROPERTY.
(b) The Company hereby represents and warrants, as of the Effective Date, as follows:
i. It is a State of Delaware incorporated company organized and validly
existing under the applicable laws of the State of Delaware.
ii. To the Company's knowledge, it is not in violation of or in conflict with
any provisions of the laws of the State or of the United States of America applicable to the
Company which would materially and adversely impair its ability to carry out its
obligations contained in this Agreement.
iii It is legally empowered to execute, deliver and perform its obligations this
Agreement and to enter into and carry out the transactions contemplated by this Agreement.
To the Company's knowledge, the execution, delivery and performance do not violate or
conflict with any provision of law applicable to the Company, and do not conflict with or
result in a default under any agreement or instrument to which Company is a party or by
which it is bound.
iv. This Agreement to which it is a party has, by proper action, been duly
authorized, executed and delivered by the Company and all steps necessary to be taken by
the Company have been taken to constitute this Agreement, and the covenants and
agreements of the Company contemplated herein are valid and binding obligations of the
Company, enforceable in accordance with their terms.
V. There is no litigation pending or to its knowledge threatened against or by
the Company wherein an unfavorable ruling or decision would reasonably be expected to
materially adversely affect the Company's ability to carry out its obligations under this
Agreement.
vi. To the Company's knowledge, it does not owe: (i) any delinquent taxes to
the State or a political subdivision of the State; (ii) any moneys to the State or a state agency
for the administration or enforcement of any environmental laws of the State; and (iii) any
other moneys to the State, a state agency or a political subdivision of the State that are past
due, whether the amounts owed are being contested in a court of law or not.
Section 8. Breach of Warranties Prior to Closing If, during the pendency of this
Agreement, either Party determines that any warranty or representation given to the other Party
under this Agreement shall be untrue, incorrect or misleading, in whole or in part, the same shall
constitute a default hereunder. In such event, the Party claiming default may give written notice
2870260.13
thereof and shall thereafter have such rights and remedies as may be available as provided herein,
at law or in equity, including, but not limited to, the right to terminate this Agreement and receive
compensation for damages or to proceed to Closing for the completion of this transaction.
Section 9. Zoning and Plan Review Process
(a) 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 Facilities
to facilitate compliance by the Company with the City's zoning and planning standards and
related review process.
(b) The Company requires perimeter fencing in order to adequately secure the
Facilities. The fencing desired by the Company is a palisade style fencing at a maximum
height of 12' as illustrated in attached Exhibit D. Under Section 153.040, all fences in the
Innovation Districts will comply with Sections 153.078 - 153.083 of the Dublin Codified
Ordinances. The City agrees that the Company will be permitted to deviate from these
fence requirements and, instead, the fence in Exhibit D shall be permitted. However, in no
event shall barbed wire, razor wire, or other similar products be permitted on the top of the
fencing. Fence placement, landscaping and mounding shall be reviewed by Dublin Staff
and shall be subject to Staff approval. Landscaping and mounding will be placed in front
of the fence to provide appropriate screening from adjacent right of ways, however such
planting shall take into account potential security risks in regard to the height and
placement of the mound and landscaping in relation to the perimeter fence. Screening
along property lines adjacent to like properties or industrial and utility properties shall not
be required. The Company shall comply with all other requirements of the ID-3 District or
seek appropriate approval of deviations from these requirements.
Section 10. Provision of Utilities and,Roadwav Improvements The City agrees to extend a
minimum twelve inch (12 ") public water service line and a public sanitary sewer line at a size to
be mutually agreed to by the Parties, in order to accommodate the Company's development and
use of the Property, to service to the Property's northern boundary as part of the City's construction
of a new entrance road as all is depicted on "Exhibit A ".
Section 11. Construction of Fiber Optic Infrastructure The City agrees to work
cooperatively with the Company and its consultants in connection with DubLink/CFN, and the
Company will make its best effort to utilize this conduit in accordance with Chapter 98, Right of
Way Management, of the Codified Ordinances of the City of Dublin in order to expedite fiber
optic deployment while minimiz disruption to the City's rights -of -way.
2870260.13
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 1. Notices. Notice from one Party to another relating to this Agreement shall be deemed
effective if made in writing and delivered to the recipient's address set forth below by any of the
following means: (i) hand delivery, (ii) registered or certified U.S. mail, postage prepaid, with
return receipt requested, or (iii) Federal Express, UPS, or like overnight courier service. Notice
made in accordance with this Section shall be deemed delivered when delivered by hand, upon
receipt or refusal of receipt if mailed by registered or certified U.S. mail, or the next business day
after deposit with an overnight courier service if delivered for next day delivery. The Parties agree
that electronic mail shall not constitute a permitted form of notice under this Section. All notices
shall be addressed as follows:
If intended for the Company, to:
c/o Vadata, Inc.
I &
With copies to:
c/o Vadata Inc.
I &
Attn: General Counsel real estate)
Attn: Director of Economic Development
If intended for the City, to:
City of Dublin
5200 Emerald Parkway
Dublin, OH 43017
Attn: Marsha Grigsby, City Manager
2870260.13
Email: mgrigsby @dublin.oh us
With a copy to:
Squire Patton Boggs (US) LLP
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
Attn: Chris Franzmann, Esq.
Email: chris.franzmann @squirepb.com
Frost Brown Todd LLP
10 West Broad Street, Suite 2300
Columbus, OH 43215
Attn: Philip K. Hartmann, Esq.
Email: phartmmm@fbtlaw.com
The Parties, by notice given hereunder, may designate any finther or different addresses to
which subsequent notices; certificates, requests or other communications shall be sent.
Section 2. Recordation of Agreement The executed Agreement shall be filed with the
Recorder of Franklin County, Ohio and for recordation in the official records of Franklin County,
Ohio as soon as practicable following the Effective Date for the purpose of providing notice of the
existence of this Agreement and its applicability to the Property. The City shall pay any costs
associated with the recording of this Agreement. The City shall, promptly following such
recordation, provide, without charge, photocopies of the recorded and date- stamped Agreement to
Company.
Section 3. Assignment This Agreement may not be assigned without the prior written consent
of all non - assigning Parties except that the Company may assign this Agreement to an Affiliate or in
connection with a merger, asset sale, combination, reorganization or similar transaction without the
City's consent.
Section 4. Survival The warranties, representations, covenants and agreements set forth in
this Agreement shall not be cancelled by performance under this Agreement, but shall survive the
Closing and the delivery of the deed of conveyance hereunder.
Section S. Governing Law This Agreement is being executed and delivered in the State and
shall be construed and enforced in accordance with the laws of the State. For all litigation, disputes
and controversies which may arise out of or in connection with this Agreement, the undersigned
hereby waive the right to trial by jury and consent to the jurisdiction of the courts of Franklin
County, Ohio.
28702%13
Section 6. Entire Agreement This Agreement constitutes the entire Agreement between the
Parties hereto, and may not be modified except by an instrument in writing signed by both Parties,
and this Agreement supersedes all previous agreements, written or oral, if any, between the Parties.
Section 7. Economic Development_ Assistance Certification The Company represents and
warrants to the City that, as of the Effective Date, the Company has not knowingly made any false
statements to the City in the process of obtaining approval of the incentives described in this
Agreement. If the Company has been fully adjudicated, after provision of any legally required
notification, to have knowingly made a false statement to the City to obtain the incentives described
in this Agreement, the Company shall be required to promptly return all benefits received under this
Agreement pursuant Ohio Revised Code Section 9.66(C)(2) and shall be ineligible for any future
economic development assistance from the State, any State agency or a political subdivision pursuant
to Ohio Revised Code Section 9.66(C)(1). The Company acknowledges that any person who provides
a false statement to secure economic development assistance may be guilty of falsification, a
misdemeanor of the first degree, pursuant to Ohio Revised Code Section 2921.13(1)(1), which is
punishable by a fine of not more than $1,000.00 and/or a term of imprisonment of not more than six
months. The return of benefits by the Company pursuant to this Section and/or applicable law shall
be the sole and exclusive remedy for any breach, default or violation described by or resulting from
this Section.
Section S. Day for Performance. Wherever herein there is a day or time period established for
performance and such day or expiration of such time period is a Saturday, Sunday or legal holiday,
then such time for performance shall be automatically extended to the next business day.
Section 9. Time of Essence. Time is of the essence of this Agreement in all respects.
Section 10. 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 11. Extent of CovenantiNo Personal Liability. All covenants, obligations and
agreements of the Parties contained in this Agreement shall be effective to the extent authorized and
permitted by applicable law. No such covenant, obligation or agreement shall be deemed to be a
covenant, obligation or agreement of any present or future member, officer, agent or employee of the
City or the Company and/or any of its Affiliates 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 and/or any of its Affiliates contained in this Agreement.
Section 12. Events of Default and Remedies. Except to the extent that this Agreement or
applicable law require otherwise, the remedies set forth in this Section are the sole and exclusive
remedies available upon a violation, default, or Breach of this Agreement.
2870260 13
(a) Effect of Breach. A Party will be deemed to be in "Breach" of this Agreement
only if: (i) it fails to comply with any material provision of this Agreement; and (ii) it does not
cure such failure within a reasonable period of time following delivery to it of notice by the other
Party describing such failure in reasonable detail, which period will not be less than 60 days. In
the event of a Breach for which this Agreement does not provide a specific remedy, either Party
may pursue any legal or equitable remedies they may have under this Agreement or applicable
law.
(b) Effect of Force Majeure Event. A Parry will not be deemed to be in Breach,
default or otherwise in violation of any term of this Agreement to the extent such party's action,
inaction or omission is the result of Force Majeure Event. Company and the City agree to use
commercially reasonable efforts to promptly resolve any Force Majeure Event that adversely and
materially impacts their performance under this Agreement. A force majeure event pauses a
party's performance obligation for the duration of the event but does not excuse it. "Force Majeure
Event" means any event or occurrence that is not within the control of such party or its Affiliates
and prevents a party from performing its obligations under this Agreement, including without
limitation, any act of God; act of a public enemy; war; riot; sabotage; blockage; embargo; failure
or inability to secure materials, supplies or labor through, ordinary sources by reason of shortages
or priority; labor strike, lockout or other labor or industrial disturbance (whether or not on the part
of agents or employees of either party); civil disturbance; terrorist act; power outage; fire, flood,
windstorm, hurricane, earthquake or other casualty; any law, order, regulation or other action of
any governing authority; any action, inaction, order, ruling moratorium, regulation, statute,
condition or other decision of any governmental agency having jurisdiction over the party hereto,
over the Facilities or over a party's operations; provided, however, that the Company agrees that
any zoning or permitting delays that result from review and approval of any proposed fence beyond
current code shall not constitute a Force Majeure Event.
Section 13. Leval Authority. 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 with its terns.
Section 14. Bindine Effect This Agreement shall be binding upon and inure to the benefit of
the Parties hereto, their respective heirs, legal representatives, successors and assigns.
Section 15. 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.
2870260.13
Section 16. Invalidity. In the event that any provision of this Agreement shall be held to be
invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this
Agreement.
Section 17. 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.
Section 18. Waiver. Except as otherwise provided in this Agreement, no waiver of any of the
provisions of this Agreement shall be deemed, nor shall the same constitute a waiver of any other
provision, whether or not similar, nor shall any such waiver constitute a continuing waiver. No
waiver shall be binding, unless executed, in writing, by the Parry making the waiver.
Section 19. Limit on Liability Notwithstanding any clause or provision of this Agreement to the
contrary, in no event shall the City or the Company or any of its Affiliates be liable for punitive,
special, consequential, or indirect damages of any type and regardless of whether such damages are
claimed under contract, tort (including negligence and strict liability) or any other theory of law;
provided, however, that the foregoing limitation shall not apply to (a) third party claims and
indemnification obligations; (b) gross negligence, willful or intentional misconduct; (c) fraud or
criminal acts; and (d) breaches of confidentiality obligations.
Section 20. Third PaM Beneficiaries. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
Section 21. Headings. The section headings contained in this Agreement are for convenience
only and shall not be considered for any purpose in construing this Agreement. As used in this
Agreement, the masculine, feminine and neuter genders, and the singular and plural numbers shall
be each deemed to include the other whenever the context so requires.
Section 22. Public Records, Confidentiality. The Company acknowledges and agrees that
portions of this Agreement are a public record subject to disclosure under the State's public records
laws. The City acknowledges and agrees that the State's public records laws exempt from
disclosure certain types of records, materials and information, including without limitation: tax
returns and related information (R.C. Sections 718.13, 5703.21, 5711.101); records confidential
under other state or federal law (R.C. Section 149.43(A)(v)); social security numbers (R.C. Section
149.45); trade secrets (R.C. Section 122.36, 1333.61 et seq); and financial information (R.C.
Section 122.36). The City agrees to use reasonably adequate physical and technical safeguards
as a similarly situated municipality would to maintain the security and confidentiality of all
materials and information related to this Agreement. The Company acknowledges that portions
of this Agreement and the materials, communications, data and information related to this
Agreement constitute public records subject to disclosure under the State's public records laws
and agrees that the City may disclose such portions of this Agreement and the materials,
communications, data and information related to this Agreement as required by law, provided that
the City (a) gives the Company prior written notice sufficient (in no event less than three (3)
business days) to allow the Company to seek a protective order or other appropriate remedy at the
2870260.13
Company's sole cost and expense, (b) discloses only such information as is reasonably determined
by the City to be required to be disclosed under the applicable law, (c) reasonably cooperates with
the Company in responding to any such records request, and (d) limits disclosure, refuses to
disclose, and redacts and/or omits portions of materials to the extent the City reasonably deems it
is permitted by applicable law to do so. In particular, the City hereby agrees to redact from any
record that is sought to be disclosed any information that a Court of Law determines is not required
to be disclosed, or that the City reasonably determines is not required to be disclosed under
applicable law.
Section 23. Term. The term of this Agreement begins on the Effective Date and ends on the
earlier of (a) the Compliance Date or (b) December 31, 2024. The Company may terminate this
Agreement upon 90 days advance written notice for any reason or no reason, in which case the
City will be entitled to the remedies available to it under herein to the extent the Company and its
Affiliates have not satisfied their obligations hereunder.
Section 24. Amendment. This Agreement may be amended or modified only by a written
instrument signed by a duly authorized agent of each party.
2870160..13
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 written above_
CITY: COMPANY:
City of Dublin, Ohio Vadata, Inc.,
an Ohio municipal corporation a Delaware corporation
:
Marsha I. Grigsby, City Manager
Approved as to Form:
Printed: Stephen J. Smith
Title: Direct2r of Law
0
Its:
2870260.13
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 during
Fiscal Year 2014 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: , 2014
Angel Mumma
Director of Finance
City of Dublin, Ohio
2870260 13
ExhibitA
ExhibitA
ExhihitA
Exhibit 6
Exhibit B
Exhibit B
Exhibit B
Exhibit 6
Exhibit 6
Exhibit B
Exhibit B
Exhibit B
Exhibit
Exhibit e
Fxhlbit C
Exhibit C
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