043-01 Ordinance RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No 0043
Ordinance No..........43-01 Passed
AN ORDINANCE APPROVING AND AUTHORIZING THE CITY
MANAGER AND DIRECTOR OF FINANCE TO EXECUTE AN
INFRASTRUCTURE AGREEMENT WITH MULTICON
DEVELOPMENT CO., WAIVING RELATED COMPETITIVE
BIDDING REQUIREMENTS, AND DECLARING AN EMERGENCY.
WHEREAS, the City is desirous of encouraging and promoting development within the
City of open space, parkland and public recreation facilities, all generally designed to
improve the quality of life of residents of the City; and
WHEREAS, in connection with the proposed development of certain property in the
southwestern portion of the City (the "Property"), the City and Edwards Golf Communities
LLC ("Edwards") previously entered into a Development Agreement dated August 14, 2000
(the "Development Agreement") in connection with that development; and
WHEREAS, that Development Agreement provided that the City would cause to be
constructed certain public infrastructure improvements (the "Infrastructure Improvements")
in connection with that proposed development; and
WHEREAS, this Council has further found that the provision of the public infrastructure
improvements would best be undertaken by entering into an agreement (the "Infrastructure
Agreement") with a private entity for the construction of the public infrastructure
improvements; and
WHEREAS, this Council finds that it is in the best interest of the City to enter into that
Infrastructure Agreement with Multicon Development Co. ("Multicon") to provide for the
construction of the Infrastructure Improvements and has determined to provide for the
execution and delivery of that Infrastructure Agreement with Multicon; and
NOW THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, Ohio,
of the elected members concurring, that:
Section 1. The Infrastructure Agreement by and between the City and Multicon, in the form
presently on file with the Clerk of Council, providing for, among other things, the
construction of the Infrastructure Improvements, 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 Infrastructure Agreement, and 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 Infrastructure Agreement, which amendments are not inconsistent with this Ordinance and
not substantially adverse to this City.
Section 2. This Council finds and determines that it is in the best interest of the City to waive
any competitive bidding requirement with respect to entering into and implementing the
Infrastructure Agreement, and directs that those requirements be so waived as permitted by
Section 8.04 of the City's Charter.
Section 3. 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 4. This Council further hereby finds and determines that all formal actions of this
Council concerning and relating to the passage of this Ordinance were taken in an open
I
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
Ordinance No .................43-0.1.................................. Passed .....................................................Page 2......................
meeting of this Council and that all deliberations of this Council that resulted in those formal
actions were in meetings open to the public in compliance with the law.
.
Section 5. This Ordinance is declared to be an emergency measure necessary for the
immediate preservation of the public peace, health, safety and welfare of the City, and for the
further reason that this Ordinance is required to be immediately effective in order to proceed
with the execution and delivery of the Infrastructure Agreement, which is necessary to timely
begin construction and completion of the Infrastructure Improvements in compliance with the
City's commitments under the Development Agreement to protect the public health and
safety by providing for the timely construction of roads and sewer and water lines; wherefore,
this Ordinance shall be in full force and effect immediately upon its passage.
Sign '
yor -Presiding Officer
Attest:
~'S 1 ~ /
.
Clerk of Council
s
Passed: " ~ / , 2001
Effective: , 2001
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1 hereby ce°tify that copies of this Ordnance/Resolution were posted in ihp
City of Dublin in accordance with Section 731.25 of the hhio Revised Code.
a~ Cler f Council, Dublin. Ohio
i
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into this 14th day
of August, 2000, 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 EDWARDS GOLF COMMUNITIES LLC ("Edwards", and collectively with the City,
""~n the "Parties") an Ohio limited liability company having its principal office in Columbus, Ohio, under
the circumstances summarized in the following recitals.
RECITALS:
WHEREAS, the City is desirous of encouraging and promoting development within the City of
open space, parkland, public recreation facilities and adequate transportation infrastructure, and one of
the strategies to be pursued by the City, particularly with respect to the development of the southwestern
sector of the City, is to encourage cohesive developments that incorporate landscaped public plazas,
water features and outdoor pedestrian areas, all generally designed to improve the quality of life of
residents of the City; and
WHEREAS, Edwards is the contract vendee or is negotiating to purchase approximately 635.07
acres within the corporate boundaries of the City (as such property is generally depicted on Exhibit A
and referred to herein as the "Property") for development, in part, as a proposed high quality residential
community development; and
WHEREAS, in connection with the proposed development of the Property, the City and Edwards
previously entered in a Memorandum of Understanding dated March 22, 2000 (the "Memorandum")
which generally provided for that development, including a commitment by Edwards to transfer a portion
of the Property to the City to provide for the construction of a publicly owned golf course; and
WHEREAS, that Memorandum also provided that the City and Edwards would undertake further
investigation and study to identify the public infrastructure improvements required to facilitate that
proposed development and related public park improvements as may be required by the City and once
identified, to provide for the construction and development of those public infrastructure and public park
improvements; and
WHEREAS, the Council has found that the City and generally all of its residents, and
particularly those in the southwestern sector of the City where the Property is located, will benefit from
a publicly owned golf course, public park, and other improvements to be made to the Property, including
improvements to the streets and roadways in the Property, all as contemplated in the Memorandum and
this Agreement; and
WHEREAS, the Council has further found that the development contemplated by the
Memorandum and this Agreement, due to the large amount of green space and provision for a public
golf course, the tremendous impact to improve residential quality of life in the southwest area, the wide
and spacious views around the golf course, and many other scenic amenities, sets a standard that exceeds
any previously outlined either in Ordinance No. 95-96 passed October 5, 1998 (the "Tree Preservation
Ordinance") or pending development ordinances, and due to the large amount of land that will result in
the City owning a public golf course and other park areas, the open space requirement for the
development of 73.751 acres is exceeded; and
WHEREAS, pursuant to Ordinance No. 50-00 passed on August 14, 2000, the City approved the
rezoning plan for the Property, dated July 7, 2000 (the "Development Text"); and
WHEREAS, pursuant to Ordinance No. 105-00 passed on August 14, 2000 (the "Ordinance"), the
City Council has authorized the execution of this Agreement and to undertake the City's obligations set
forth herein; and
WHEREAS, the Parties have determined to enter into this Agreement to provide for the
development of the Property within the City, all in accordance with the Development Text;
NOW THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the Parties covenant, agree and obligate themselves as follows:
Section 1. General Matters Relating to Property Development.
(a) General Development. The Parties have entered into this Agreement to develop, or cause to
be developed, the Property as portrayed on Exhibit A.
(b) Zoning of the Property. The Parties acknowledge and agree that the Development Text
for the Property was approved effective August 14, 2000 as follows:
(1) Planned Commerce District. The portion of the Property designated for use as the
golf club house, driving range and maintenance facility (as such area is portrayed on Exhibit B)
has been rezoned Planned Commerce District in accordance with Section 153.058 of the City's
Codified Ordinances. The approved zoning permit incorporated the conceptual site plan set forth
,
on Exhibit A attached hereto. Such rezoning shall permit the construction and operation of the
golf club house, driving range and maintenance facility and other ancillary uses.
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(2) Planned Low Density Residential District. All other property shown on Exhibit B
has been rezoned "Planned Low Density Residential District" in accordance with Section
153.051 of the City's Codified Ordinances. The final zoning for the Property will permit
Edwards to construct a residential development and the City to construct the public golf course
as portrayed in the conceptual site plan on Exhibit A.
(3) Condominiums and Cluster Homes. The Parties acknowledge that the approved
Development Text provides for the construction in the aggregate of 322 condominium units and
99 cluster homes in the areas depicted on Exhibit A. Edwards agrees that a second level of
review and approval as noted in the Development Text will be required as a condition precedent
to the construction of those proposed condominiums and cluster homes. However, the Parties
acknowledge and further agree that the additional review will in no way require Edwards to
reduce the number of condominium units or cluster homes unless such reduction is agreed to by
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Edwards. The City agrees that the secondary review will be undertaken by the City Planning
Commission within a reasonable period of time and shall not require the dedication of any
additional land for park purposes other than which is already provided for herein or in the
Development Text.
(4) Extension of Certain Streets. The Parties agree that the City shall not require
Edwards to extend streets from Kendall Ridge or Cramer Crossing into the Property.
' (5) Diversity and Architectural Materials. The Parties agree that the diversity and
architectural materials standards which Edwards shall be required to follow in connection with
the development of the Residential Community Development (as defined below) are set forth in
the Development Text.
(6) Other. The Parties agree that the Tree Preservation Ordinance, and City
Ordinance No. 24-00 currently pending before Council, will not apply to the Property.
(c) Maintenance Facility. The Parties acknowledge that the City owns a 17.7f acre tract of
land abutting the east side of the Property, south of Shier-Rings Road, which the City may use as a
maintenance facility (the "Maintenance Facility"). The Parties agree to work together to develop a
screening plan for the Maintenance Facility which shall be agreed upon by the Parties, prior to the
construction of the Maintenance Facility, and implemented by the City prior to the occupancy of that
Maintenance Facility. The Parties further agree that Edwards shall not be required to pay any expense
related to the implementation of that screening plan.
(d) Timin og f Property Development. The Parties acknowledge that their respective, mutual
cooperation and coordination will be necessary to complete the timely development of the Property in
accordance with the terms of this Agreement. Accordingly, the Parties agree that the provisions of this
agreement related to timing may be amended from time to time with the mutual consent of the Parties to
provide for the efficient, coordinated completion of the development of the Properly.
Section 2. Property Acquisition and Development.
(a) Property Acquisition. Edwards agrees to acquire:
(1) the Golf Course Parcels (as defined below), and
(2) such other portions of the Property determined by the City and Edwards to be
reasonably necessary to provide for:
(A) the construction of the Golf Course Development (as defined below) in
accordance with Section 2(b)(3), and
(B) the construction of the Woerner Temple/Eiterman Improvements (as
defined below) in accordance with Section 4(c),
all with reasonable dispatch but in no event no later than October 1 2000.
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(b) Golf Course Development.
(1) General City Agreement. In furtherance of the City's policies of encouraging and
promoting open space, parkland and public recreation facilities within the City for use by the
City's residents and the controlled growth of City industry and commerce, the City agrees that it
will construct and operate, or cause to be constructed and operated, a first class, eighteen-hole,
golf course open to the public, including a club house facility, practice facilities, related parking
and other public amenities (as such area is portrayed on Exhibit A and referred to herein as the
"Golf Course Development"), on the Golf Course Parcels (defined below) in accordance with
this Agreement. The Parties agree that the City's obligation to construct and operate, or cause
the construction and operation, of the Golf Course Development is subject to Edwards
transferring the Golf Course Parcels to the City in accordance with this Agreement.
The Parties further agree that the City shall, to satisfy its obligation hereunder to
construct and operate the Golf Course Development, either:
(A) enter into an agreement with a private entity to provide for the financing,
construction, management and operation of the Golf Course Development, or
(B) alternatively and solely at the City's option, provide for the financing,
construction, management and operation of the Golf Course Development in such manner
as the City shall deem appropriate.
(2) Transfer of Required Parcels to City. By such time as is mutually agreeable to the
Parties but not later than December 31, 2000, Edwards shall transfer or cause to be transferred to
the City 209.761 acres of the Property required for the Golf Course Development (as those
parcels are portrayed on Exhibit C and referred to herein as the "Golf Course Parcels"). With
respect to the transfer of the Golf Course Parcels, the Parties further agree as follows:
rc (A) Deed. Edwards shall transfer unencumbered fee simple title in the Golf
Course Parcels to the City by one or more warranty deeds (collectively, the "Deed'). The
~ City shall promptly record the Deed with the Recorder of Franklin County, Ohio for
recordation in the Deed Records. The City shall pay all costs of recording the Deed.
Edwards shall pay any transfer fees.
(B) Title Insurance. Edwards shall furnish and pay for an owner's title
insurance commitment and policy in the amount of $7,000,000 or such other amount as is
mutually agreeable to the Parties. The title evidence shall be certified to within 30 days
prior to closing with endorsement as of 8:00 a.m. on the business day prior to the date of
closing, all in accordance with the standards of the Columbus Bar Association, and shall
show in Edwards marketable title in fee simple free and clear of all liens and
encumbrances except : (i) those created by or assumed by the City; (ii) those specifically
set forth in this Agreement; (iii) zoning ordinances; (iv) legal highways; and (v)
covenants, restrictions, conditions and easements of record which do not unreasonably
interfere with the City's intended use as the Golf Course Development.
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If title to all or part of the Golf Course Parcels is unmarketable, as determined by
Ohio law with reference to the Ohio State Bar Association's Standards of Title
Examination, or is subject to liens, encumbrances, easements, conditions, restrictions or
encroachments other than those excepted in this Agreement, Edwards shall within (30)
days after written notice thereof, remedy or remove any such defect, lien, encumbrance,
easement, condition, restriction or encroachment or obtain title insurance without
exception therefore. At closing, Edwards shall sign an affidavit with respect to off-record
title matters in accordance with the community custom.
~ (C) Taxes. The real estate taxes, if any, for the tax year in which the Deed is
delivered shall be apportioned between the City and Edwards as of the date of delivery of
the Deed on a calendar year basis. If the amount of such taxes is not ascertainable on
such date, the apportionment between the City and Edwards shall be on the basis of the
amount representing the total year's tax allocable to the Golf Course Parcels by
multiplying the valuation of the Golf Course Parcels as they appear on the last available
County Treasurer's tax duplicate by the most recent tax date, but such apportionment
shall be subject to final adjustment within thirty (30) days after the date of the actual
amount of such taxes is ascertained. Real estate taxes for the tax years previous to the tax
year in which such Deed is delivered, if any, will be paid by Edwards. If separate
permanent parcel numbers do not exist for each of the Golf Course Parcels, then the taxes
allocable to the Golf Course Parcels shall be apportioned among the separate Golf Course
Parcels on a pro-rata basis based upon the relative area of each Golf Course Parcel.
(D) Purchase Price. Upon completion of construction of the Golf Course
Development or July 1, 2002, whichever occurs earlier, the City shall remit to Edwards
an amount of $1,500,000, which amount shall represent the purchase price for the Golf
Course Parcels. The Parties acknowledge that the current market value of the Golf
Course Parcels is estimated at $7,100,000. The Parties agree that the difference between
the estimated current market value and the actual purchase price paid by the City will
constitute a gift from Edwards to the City.
(E) Recoupment. The City agrees that, upon the conveyance to the City of the
Golf Course Parcels, it will promptly file with the Franklin County Auditor any necessary
documentation to defer the recoupment of real property taxes on the Golf Course Parcels;
provided, however, the Parties acknowledge that the Franklin County Auditor shall in its
sole discretion determine whether such deferral will be approved.
(3) Construction and Operation of Golf Course Development. Once the Golf Course
Parcels are transferred to the City, the City agrees that it will provide for the diligent construction
of the Golf Course Development. Edwards agrees to grant to the City any and all reasonably
necessary access easements to the Golf Course Parcels over any part of the Property owned or
controlled by Edwards necessary to enable the City to perform and complete the construction of
the Golf Course Development. Edwards shall not be responsible for obtaining access for the
City to the Golf Course Parcels over any property which is not owned or controlled by Edwards.
The Parties agree that the design of the club house facility and the name of the Golf Course
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Development will be approved by the City, after consultation with Edwards. The City agrees to
use its best efforts to complete the Golf Course Development no later than July 1, 2002. Finally,
the Parties acknowledge and agree that the design, construction, management and operation of
the Golf Course Development, including the use of any related practice facilities, will be within
the sole discretion of the City and any construction, management and operation firms which may
be retained by the City from time to time; provided, however, the City agrees that it will reasonably
consider any input from Edwards with respect to such design, construction, management and
operation as the same may affect the Residential Community Development and the City shall not
make any change to the Golf Course Development that would adversely affect the Residential
Community Development without Edwards' prior written consent.
(c) Residential Community Development.
(1) Generally. Edwards agrees that it will use its best efforts to construct, or cause to
be constructed, on the Property a high quality residential community development in those areas
as depicted on Exhibit A (the "Residential Community Development"). Edwards agrees that it
shall have the first phase of the Residential Community Development completed and model
homes open for public viewing no later than July 1, 2002.
(2) Construction. In accordance with the Development Text and Section 1(b)(3) of
this Agreement, the City shall allow the construction of homes, cluster homes and condominiums
to commence before roadways are in place within the Property, provided that an acceptable haul
road is available to provide for that construction. The Parties agree that lots, homes, cluster
homes and condominiums may be sold at any time, but such homes, cluster homes and
condominiums shall not be occupied until roadways are in place and accepted by the City.
(3) Indemnification. Edwards acknowledges that the City, pursuant to this Agreement,
is permitting Edwards to undertake construction of homes, condominium units and cluster homes
within the Property prior to the completion of all necessary roadway improvements and that the
provision of certain public safety services, including but not limited to fire and police services, by
the City to the Property may be impaired due to the lack of those necessary roadways. Edwards
agrees that it will assume that risk during such period prior to the completion of all necessary
roadways and Edwards further agrees to indemnify the City against any and all liabilities, claims,
costs, suits, demands, actions, damages, judgments, fines, losses and expenses (including without
limitation, to the extent permitted by law, reasonable attorneys' fees and expenses), imposed
upon or asserted against the City, without negligence or bad faith on the part of the City as may
result from the construction of such homes, condominium units and cluster homes during the
period prior to the completion of all necessary roadways.
(d) Coordination of Development.
(1) General. The Parties acknowledge that the construction of the Golf Course
Development and the Residential Community Development will occur at substantially the same
time. The Parties agree to cooperate and coordinate their respective efforts in the design and
planning, including items such as grading and drainage, for each development in order that the
developments will complement one another.
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(2) Rough Grading. The Parties acknowledge that the Property will need to be rough
graded in a single, continuous manner to provide for the most efficient development of the Golf
Course Development and the Residential Community Development. Edwards agrees to undertake
the rough grading for the Property in a manner and within a timeframe which is mutually agreeable
to the Parties. The rough grading of the Property shall include, but not be limited to, the rough
grading necessary for the Golf Course Development, the Residential Community Development, the
Woerner Temple/Eiterman Improvement road profiles and the compaction of any fill deposited on
those road bed areas in accordance with ODOT specifications for road construction. The Parties
agree that the City shall reimburse Edwards for the cost of any rough grading and compaction as the
Parties mutually agree is allocable to the Golf Course Development and the cost of the Woerner
Temple/Eiterman Improvements.
Section 3. Park Acquisition and Development. In addition to the dedicated parkland the City
requires through the development process, the Parties acknowledge that the City is desirous of
identifying and purchasing park sites in the southwestern portion of the City to support the recreation
needs of the future population in that area.
(a) Park Acquisition. In furtherance of the above, the City agrees that it will, at its sole cost
and expense, acquire approximately 46.9E acres of land located adjacent to the Property (which area is
portrayed on Exhibit D as the Potential Dublin Park and referred to herein as the "City Parr') to be
owned and operated by the City as a community public park. The City will pursue this acquisition and .
will exercise its best efforts to take all necessary legislative and appropriation actions so that the City
may acquire the City Park no later than June 1, 2001. Notwithstanding the foregoing, Edwards agrees
that the City shall not be required to exercise its powers of eminent domain to acquire any of the
resident, freeholder parcels located south of Woerner Temple Road and west of Avery Road.
(b) Park Development. The Parties agree that the development of the City Park is integrally
related to the overall development of the Property. Therefore, the Parties agree that the City may
consider waiving any competitive bidding requirements imposed by the City Charter to provide for the
design and construction of the City Park. The City agrees to reasonably consider any input from Edwards
with respect to the design of the City Park.
(c) Cost of Development of the City Park. The Parties agree that the cost of developing the
City Park in accordance with the plan approved by the City shall be apportioned as follows:
(1) City Contribution. The Parties agree that the City shall pay at least $1,752,000,
which includes the Edwards contribution described in Section 3(c)(2), towards the cost of
designing and constructing the City Park.
(2) Edwards Contribution. Edwards agrees that it shall pay to the City an amount of
$452,000 to be applied towards the cost of the design and construction of the City Park.
Edwards pledges and agrees that such payment will be made in the following installments:
(A) $84,000 upon completion and acceptance of the City Park by the City;
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(B) $84,000 on each of the next two anniversaries of the first payment; and
(C) $200,000 on July 1, 2002.
The Parties acknowledge and agree that the payments made by Edwards to the City under
this subsection will constitute a gift to the City.
(d) Related Site. Edwards agrees to donate to the City the historic home site and related
property located on the south side of Shier-Rings Road (portrayed as Subarea U on Exhibit E). The City
shall maintain, or cause to be maintained, such site in a manner with is reasonably acceptable to the
Parties.
Section 4. Roadway Improvements.
(a) Traffic Study. The Parties acknowledge that the City commissioned a traffic study by the
Parsons Transportation Group to identify and assess the traffic needs in connection with the
development of the Property. The Parties agree that based on that traffic study, the construction and
improvement of certain arterial and collector streets in the southwest area of the City, located or to be
located in or around the Property, is vital to comply with the City's policy of providing a roadway
network with multiple connections between routes and uses. Further, the Parties acknowledge and agree
that the City's portion of the cost of certain public roadway improvements is supported by the findings
of that traffic study and that approximately two-thirds of the projected traffic on the improved Eiterman
Road and Woerner Temple Road will consist of Golf Course Development and off-site generated traffic,
and that the improvements to Woerner Temple Road and Eiterman Road are necessary to provide
ingress and egress to the Golf Course Development, as well as to provide for off-site and on-site
generated traffic. Therefore, in order to benefit all of the citizens of the City, the Parties agree to make
roadway improvements as follows:
(b) Dedication and Vacation of Public Rights-of--Way and Easements.
(1) Generally. Edwards agrees that, as part of the platting process, it shall dedicate to
the City the rights-of--way and easements for the construction and relocation of Woerner Temple
Road and Eiterman Road, the construction of turn lanes on Shier-Rings Road, Cosgray Road and
Rings Road and the construction and installation of all bikeways, utilities and tunnels as
provided for in the approved Development Text (and as such rights-of--way and easements shall
be described in the plat for the Property). Edwards further agrees to cooperate with the City and
grant to the City easements not described herein or in the plat for the Property as the City shall
deem necessary to provide for the construction of any infrastructure improvements benefiting the
Property or abutting property; provided, however, the City will compensate Edwards for the
additional easements to the extent the grant of such easements to the City results in an economic
loss to Edwards as developer in connection with the development of the Residential Community
Development. The City agrees that it will take all steps necessary to allow Edwards to undertake
all necessary rough grading over the portions of current Woerner Temple Road which are not
necessary to provide for the construction of the new Woerner Temple Road.
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(2) Realigned Rin s Road. The Parties agree that Edwards, through the platting
process and in accordance with the Development Text, will convey aright-of--way to the City to
provide a corridor for the construction of a portion of the realigned Rings Road (as such right-of-
way is marked as Subarea N on Exhibit E and referred to herein as the "Rings Right-of-Way").
The Parties further agree that if the City, through its standard engineering practice, determines
that the Rings Right-of--Way should be wider than originally provided for in the Development
Text and the number of condominium units which may therefore be constructed in accordance
with the Development Text is reduced, the City will compensate Edwards for the acquisition of
such additional right-of--way, based on the economic loss to Edwards as developer for any
necessary reduction in the number of condominium units as is otherwise provided for in the
Development Text.
(c) Construction of Woerner Temple Road and Eiterman Road Improvements.
(1) Generally. The Parties agree that the City shall design and construct, or cause to
be designed and constructed, Woerner Temple Road from Avery Road to Eiterman Road and
Eiterman Road from a point 250 feet south of Woerner Temple Road (as noted on Exhibit F)
north to Shier-Rings Road, including all related intersection improvements, utilities (including
but not limited to water lines along such roadway improvements), tunnels and related
appurtenances thereto (all as portrayed on Exhibit F and referred to herein as the "Woerner
Temple/Eiterman Improvements"). The Parties also agree that Edwards will, as soon as possible
after the execution of this Agreement, but no later than the date on which the plat for the
Property is filed with the City, provide the locations of the terminus points of the Woerner
Temple/Eiterman Improvements in order that field surveys may commence for the design
thereof. The Parties further agree that the City will exercise its best efforts to cause the Woerner
Temple/Eiterman Improvements to be substantially complete on or before November 1, 2001.
(2) Allocation of Costs. The Parties agree that, based on the current engineering
designs, plans and specifications prepared by or on behalf of the City, the portion of the
estimated cost of the Woerner Temple/Eiterman Improvements which is necessary for the
development of the Residential Community Development is between $4,500,000 and
$5,000,000. Accordingly, the Parties agree that the portion of the actual costs of the Woerner
Temple/Eiterman Improvements to be borne by the owners of the parcels in the Residential
Community Development in accordance with Section 4(c)(3) shall be limited to the lesser of (A)
$1,666,667 or (B) one-third (1/3) of the actual cost of the Woerner Temple/Biterman
Improvements.
(3) Special Assessments.
(A) General. The Parties agree that the lesser of (A) $1,666,667 or (B) one-
third (1/3) of the actual cost of the Woerner Temple/Eiterman Improvements shall be
paid by the owners of the parcels in the Residential Community Development in the fornl
of special assessments.
(B) Petition for Special Assessments. Edwards agrees that there will be
prepared and filed with the City a petition for such special assessments under Revised
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Code Chapter 727. The Parties agree that such petition will be in a form acceptable to the
City's bond counsel and shall be filed with the City no later than January 1, 2001. The
City agrees that upon receipt of the petition, it will proceed forward with the special
assessment proceedings provided for under Revised Code Chapter 727. The Parties agree
to cooperate in the special assessment proceedings in order that the special assessments
will be levied for a maximum of twenty (20) years beginning in the 2001 tax year and
first collected in calendar year 2002. Such assessments shall be liens running with the
land.
(C) Financing of Special Assessments. To the extent property owners do not
~ pay the special assessments as levied in the time period provided for by Ohio law, the
Parties acknowledge and agree that the City may, in accordance with Ohio law, issue
notes or bonds in anticipation of the collection of those unpaid special assessments. The
Parties further agree that in accordance with Ohio law, the City may increase those
unpaid special assessments by an amount necessary to reflect any financing costs,
including but not limited to, interest and issuance expenses.
(4) City Portion of the Cost. The Parties agree that the remainder of the cost of the
Woerner Temple/Eiterman Improvements shall not be borne by Edwards.
(5) Further Extension of Eiterman Road. The Parties agree that Edwards shall not, as
part of the development of the Property, be required to pay the cost of constructing Eiterman
Road from a point 250 feet south of Woerner Temple Road south to Rings Road.
(d) Roadway Improvements Constructed By Edwards. The Parties agree that as part of the
development of the Property, Edwards shall design and construct, or cause to be designed and
constructed:
(1) Generally. The roadway improvements which Edwards is generally required to
, construct in accordance with the Development Text.
y (2) Secondary Access Road. Within five (5) years of the issuance of the first building
permit in Subarea H, one or the other of the following: (A) a street connection from Subarea F
(through Subarea R) to Subarea N or (B) a street connection from Subarea H (through the Golf
Course Development and Subarea I) to Cosgray Road, all as depicted on Exhibit E.
(3) Realigned Rin sg Road. In conjunction with the development of either Subarea R or
S (as depicted on Exhibit E) whichever occurs first, the portion of the realigned Rings Road which
is depicted as Subarea N on Exhibit E.
(4) Left Turn Lane. The left turn lane and intersection improvements for the
intersection immediately east of the intersection of Shier-Rings Road and Eiterman Road in the
manner and at such time as would be customarily required by the City to preserve capacity of the
related through lanes; provided, however, Edwards shall only be required to contribute the lesser of
(A) the actual cost of that improvement or (B) $150,000, towards the cost of such left turn lane and
intersection improvements.
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Section 5. Utilities. In accordance with Resolution No. 48-99 adopted by the Council of the
City on November 15, 1999, pursuant to requirements found in Section 709.31 of the Revised Code, and
in furtherance of the City's commitment to provide services to residents of the City, the Parties agree
that utilities will be provided to the Property in the following manner:
(a) Utilities Provided by the City. The City agrees to provide for the design, construction
and installation of the following utility improvements in connection with the development of the
Property:
(1) Water. The City will provide adequate municipal water facilities including fire
demand, pressure and flows, from lines located in the City near the Property to service the
Property for its proposed uses. The City will cause the construction of (A) approximately 3200
lineal feet of water line along Eiterman Road, north from Shier-Rings Road and (B)
approximately 3000 lineal feet of water line along Shier-Rings Road, east from Eiterman Road.
The City shall obtain all easements necessary for the construction of said extension of water
lines, except that any and all easements from property under the control or ownership of Edwards
shall be donated to the City. The Parties agree to cooperate in the design of the utility
improvements.
(2) Sanitary Sewer. The City agrees that it will provide to the perimeter of the
Property adequate municipal sanitary sewer facilities from lines located near the Property for the
proposed uses. The City will cause the construction of approximately 2700 lineal feet of sanitary
sewer line along Shier-Rings Road, east from Eiterman Road. The City agrees that the sanitary
sewer lines shall be designed, sized and constructed to adequately serve the contemplated
development of the Property.
(3) Depiction and Timing. The Parties agree that the water and sanitary sewer
improvements described in this Section 5(a) are depicted on Exhibit F and that the City will
exercise its best efforts to cause such improvements to be substantially complete on or before
November 1, 2001. The City agrees that the water and sanitary sewer improvements will be
constructed within the public easements. The City further agrees that Edwards shall be permitted
` to commence construction of water and sanitary sewer improvements for the Residential
Community Development at the same time as the City is constructing its public improvements.
(b) Utilities Provided by Edwards. Edwards agrees as part of its development to oversize
sanitary sewer lines through the development in order to accommodate other properties in the area
which the City desires to service. Accordingly, the City agrees that it will contract with Edwards to
cause such oversizing to be put in place and such contract shall provide for payment by the City for the
cost of oversizing including, but not limited to, increased cost of pipe, additional excavation required,
additional rock removal and all other costs to be incurred by such oversizing. The Parties agree that
such additional cost is estimated to be approximately $175,000. Edwards shall notify the City upon
completion of each phase of such sanitary sewer construction and the City shall compensate Edwards for
such oversizing applicable to each completed phase within sixty (60) days of receipt of such notification.
Edwards also agrees to provide a tap to the sanitary sewer improvements which it shall construct within
the Property for the benefit of the club house facility in the Golf Course Development and such tap shall
-11-
be available to the City prior to the completion of the Golf Course Development. The City agrees to
reimburse Edwards for the cost of that sanitary sewer tap. This section is applicable to on-site utilities in
public easements or in rights-of--way dedicated or to be dedicated to the City. Finally, the Parties
acknowledge and agree that the City maintains a published policy for the oversizing of water lines and
that Edwards may submit expenses for reimbursement pursuant to that policy.
(c) Storm Water. Consistent with the City's storm water drainage ordinance (Ordinance No.
40-98) and standard civil engineering practices, the City agrees that Edwards shall be permitted to utilize
areas within the Golf Course Development for all storm water detention from the Residential
Community Development and further, Edwards may utilize a portion (not more than two acres of
drainage capacity) of a pond within the City Park for additional storm water detention.
(d) Maintenance of Existin Wells. The Parties acknowledge that the water service for
certain parcels abutting the Property is supplied by existing groundwater wells. The Parties agree to
cooperate during the course of development of the Property to use their best efforts not to disrupt or
diminish the water supplied by those wells. If it is determined that such water supply has been
diminished as a result of the development of the Property, the Parties agree to cooperate to restore that
water supply.
(e) Other Utilities. The City agrees that it will exercise its best efforts to cooperate with third
parties to facilitate the extension of utilities into the southeastern portion of the Property in a timely
manner to accomplish the objectives of this Agreement.
Section 6. Public Pool and Recreational Facility. The Parties agree that certain additional
recreation facilities aze required for the residents of the southwestern portion of the City. The Parties agree
that Edwards shall make a gift to the City in the amount of $1,000,000, which gift shall be applied solely
towazds the cost of constructing a public pool and recreational facility in reasonable proximity to the
Property. The City agrees to reasonably consider any input from Edwards with respect to the design of the
public pool and recreational facility. Edwards agrees that such gift will be made to the City not later than
thirty (30) days after the completion of that public pool and recreational facility which completion is
presently expected to occur in calendar year 2004.
Section 7. Events of Default and Remedies.
(a) Generally. Except as may be otherwise provided~in this Agreement, in the event of any
default in or breach of this Agreement, or any of its terms or conditions, by any Party, or any successor to
such Party, such Party or successor shall, upon written notice from the other Parry, proceed promptly to
cure or remedy such default or breach. In case such remedial action is not taken or not diligently pursued
within thirty (30) days of such written notice, the party asserting default or breach may institute such
proceedings at law or in equity as may be necessary or desirable in its opinion to remedy such default or
breach. Nothing in this Agreement shall limit the right of any Party to pursue any remedy otherwise
available to it at either law or in equity.
(b) Force Majeure. If by reason of Force Majeure, any Party fails in the observation or
performance of any of its agreements, duties or obligations to be observed or performed under this
Agreement, that Party shall not be deemed to be in default under this Agreement. However, that Party shall
-12-
_s.._~..~ .
promptly give notice to the other Party of the existence of an event of Force Majeure and shall use its best
efforts to remove the effects thereof; provided that the settlement of strikes or other such disturbances shall
be entirely within its discretion.
The term Force Majeure shall mean, without limitation, acts of God; acts by the people of the City
initiating and filing any public referendum challenging the validity of this Agreement or any other
agreement or instrument adopted or approved by the City in conjunction with the development of the
Property; strikes, lockouts or other such disturbances; acts or delays of the other Party; acts of public
enemies; orders or restraints of any kind of the government of the United States of America or of the State
or any of their departments, agencies, political subdivisions or officials (except the City or its officials), or
any civil or military authority; insurrections; civil disturbances; riots; epidemics; landslides; lightning;
earthquakes, fires, hurricanes; tornadoes; storms; droughts; floods; unusually severe weather; arrests;
restraints of government and people; explosions; breakage; malfunction or accident to facilities, machinery
or transmission lines; partial or entire failure of utilities; freight embargoes; unavailability or shortages of
materials, labor, supplies, transportation or delays of contractors, subcontractors or materialmen due to any
of such causes; or any cause, circumstance or event not reasonably within the control of that Party.
Section 8. Miscellaneous.
(a) Notices. Except as otherwise specifically set forth in this Agreement, all notices, demands,
requests, consents or approvals given, required or permitted to be given hereunder shall be in writing and
shall be deemed sufficiently given if actually received or if hand-delivered or sent by recognized, overnight
delivery service or by certified mail, postage prepaid and return receipt requested, addressed to the other
Party at the address set forth in this Agreement or any addendum to or counterpart of this Agreement, or to
such other address as the recipient shall have previously notified the sender of in writing, and shall be
deemed received upon actual receipt, unless sent by certified mail, in which event such notice shall be
deemed to have been received when the return receipt is signed or refused. For purposes of this agreement,
notices shall be addressed to:
(1) the City at:
City of Dublin, Ohio
5800 Shier Rings Road
Dublin, Ohio 43016-7295
Attention: Director of Development
(2) Edwards at:
Edwards Golf Communities LLC
500 South Front Street
Suite 770
Columbus, Ohio 43215-7619
Attention: Deborah Rurik-Goodwin
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.
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(b) Assignments.
(1) General. Except as otherwise provided herein, each Party agrees not to assign this
Agreement without the prior written consent of the other Party.
(2) Assignment to Affiliate or Subsidiary. Edwards may, however, assign its rights and
obligations herein to an affiliate or subsidiary. For purposes of this Section 8, an "affiliate or
subsidiary" shall mean a legal entity which shall be directly or indirectly controlled, under the
control of, or be under common control within Edwards. For purposes hereof, "control" shall be
deemed to mean ownership of more than fifty percent (50%) of the outstanding voting stock of a
° corporation or other majority equity and controlling interest if the entity is not a corporation.
(3) Default. The City agrees that it will not unreasonably withhold its consent to an
assignment of this Agreement to any lender of Edwards which may be required as a result of a
default by Edwards on any agreement related to the development of the Residential Community
Development.
(c) Extent of Provisions Regarding City. All representations, warranties, covenants, agreements
and obligations of the City under this Agreement shall be effective to the extent authorized and permitted by
applicable law. None of those representations, warranties, covenants, agreements or obligations shall be
deemed to be a representation, warranty, covenant, agreement or obligation of any present or future
member, officer, agent or employee of the City or its City Council in other than his or her official capacity.
(d) Extent of Provisions Regazding Edwards. No representation, warranty, covenant,
agreement, obligation or stipulation contained in this Agreement shall be deemed to constitute a
representation, warranty, covenant, agreement, obligation or stipulation of any present or future officer,
agent or employee of Edwards in an individual capacity.
(e) Personal Liability. To the extent authorized and permitted by applicable law, no official
executing or approving the City's or Edwards' participation in this Agreement shall be liable personally
under this Agreement or be subject to any personal liability or accountability by reason of the issuance
thereof.
(f) Binding Effect. Subject to the Ordinance taking effect on September 13, 2000, the Parties
each represent, warrant and covenant to one another that each Party has fully power and authority to
perform their respective obligations under this Agreement and that the execution, delivery and performance
of this Agreement have been duly and effectively approved and authorized by all necessary action. This
Agreement shall be binding upon, and inure to the benefit of, the City, Edwards and their respective
permitted successors and assigns. Provided, however, any covenant, agreement or obligation of the City
which requires the expenditure of funds shall not be a general debt of the City. Each covenant, agreement
and obligation of the City under this Agreement is binding upon each officer of the City who may have the
authority or duty from time to time under law to take any action which may be necessary or advisable to
observe or perform that covenant, agreement or obligation.
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~ ~ w_,o
(g) Amendments. The Parties acknowledge that the terms of this Agreement relating to the
development of the Property may need to be amended from time to time and agree, therefore, that this
Agreement may be amended from time to time by written instrument executed by both of the Parties.
(h) Executed Counterparts. This Agreement may be executed in several counterparts, each of
which shall be regarded as an original and all of which shall constitute but one and the same agreement. It
shall not be necessary in proving this Agreement to produce or account for more than one of those
counterparts.
(i) Severability. In case any section or provision of this Agreement, or any covenant,
agreement, obligation or action, or part thereof, made, assumed, entered into or taken, or any application
thereof, is held to be illegal or invalid for any reason,
(1) that illegality or invalidity shall not affect the remainder hereof or thereof, any other
section or provision hereof, or any other covenant, agreement, obligation or action, or part thereof,
made, assumed, entered into or taken, all of which shall be construed and enforced as if the illegal
or invalid portion were not contained herein or therein,
(2) the illegality or invalidity of any application hereof or thereof shall not affect any legal
and valid application hereof or thereof, and
(3) each section, provision, covenant, agreement, obligation or action, or part thereof, shall
be deemed to be effective, operative, made, assumed, entered into or taken in the manner and to the
full extent permitted by law.
(j) 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.
(k) Governing Law and Choice of Forum. This Agreement shall be governed by and construed
in accordance with the laws of the State of Ohio. All claims, counterclaims, disputes and other matters in
question between the City, its agents and employees, and Edwards, 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.
(1) Survival of Representations and Warranties. All representations and warranties of Edwards
and the City in this Agreement shall survive the execution and delivery of this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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~ u
IN WITNESS WHEREOF, the City and Edwards have caused this Agreement to be executed in
their respective names by their duly authorized representatives, all as of the date first written above.
CITY OF DUBLIN, OHIO
By:
Printed: Timothy C. Hansley
Title: Cit Mana er
C
By:~~~~~~~_ ~
Printed: Marsha I. Grigsby
Title: Director of Finance
Approved as to Form:
By:
Printed: Stephen J. Smith
Title: Director of Law
EDWARDS GOLF COMMUNITIES LLC
By:~t'~f SC~S ~r
Printed: Peter H. Edwards
Title: Chairman
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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 during the year 2000 under the foregoing
Agreement have been appropriated lawfully for that purpose, and are in the Treasury of the City or in the
process of collection to the credit of an appropriate fund, free from any previous encumbrances. This
Certificate is given in compliance with Section 5705.41, Ohio Revised Code.
,~..,n,
Dated: ci , 2000 ~~~c~.~, ~ . , ~
Director of Finance
City of Dublin, Ohio
.,,-w.
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EXHIBIT A
GENERAL DEPICTION OF PROPERTY DEVELOPMENT
,~„r.
A-1
EXHIBIT B
DEPICTION OF ZONING FOR THE PROPERTY
.y
,r..,
B-1
_
EXHIBIT C
DEPICTION OF GOLF COURSE PARCELS
C-1
EXHIBIT D
DEPICTION OF CITY PARK
~,w„
D-I
EXHIBIT E
DEPICTION OF VARIOUS SUBAREAS WITHIN THE PROPERTY
E-1
EXHIBIT F
DEPICTION OF INFRASTRUCTURE IMPROVEMENTS
F-1
INFRASTRUCTURE AGREEMENT
THIS INFRASTRUCTURE AGREEMENT (the "Agreement") dated April ~ 2001, by and
between the CITY OF DUBLIN, OHIO (the "City"), a municipal corporation duly organized and validly
existing under the Constitution and laws of the State of Ohio (the "State") and its Charter, and
MULTICON DEVELOPMENT Co. ("Multicon", and collectively with the City, the "Parties" and each
individually a "Party"), an Ohio corporation duly organized and validly existing under the laws of
the State of Ohio, having its principal office in Columbus, Ohio.
WITNESSETH:
WxEREAS, Edwards Golf Communities LLC ("Edwards Golf') owns certain parcels of real
property in the Southwestern sector of the City on which it is developing a high quality residential
community development; and
WxEREAS, the City also owns certain parcels of real property in the Southwestern sector of
the City on which it is causing to be developed a public golf course, including an eighteen-hole golf
course, club house facility, practice facilities and parking, and a public park, all of which parcels are
located in proximity to Edwards Golf residential community development; and
WxEREAS, the City and Edwards Golf have heretofore entered into a Development
Agreement, dated August 14, 2000 (the "Development Agreement"), to provide for the simultaneous
development of the residential community development and the golf course development and to
further provide for the construction of various roadway, sewer and water infrastructure
improvements; and
WxEREAS, the Development Agreement provides that Edwards Golf and the City are each
responsible for the construction of various roadway, sewer and water infrastructure improvements,
all as more particularly described in the Development Agreement; and
WHEREAS, the Parties have determined that it would be in the best interests of the City and
Edwards Golf to provide for the efficient and coordinated development of the infrastructure
improvements described in the Development Agreement; and
WHEREAS, the City has determined pursuant to Ordinance No. 43-01, passed on April 2,
2001, that it would be in the best interest of the City to contract with Multicon to provide for the
construction and installation of certain of the infrastructure improvements identified in the
Development Agreement (as such infrastructure improvements are more fully described on Exhibit
A attached hereto and collectively referred to herein as the "Infrastructure Improvements");
Now THEREFORE, the Parties covenant, agree and obligate themselves as follows:
provided herein, excluding the costs of any easements or rights-of--way necessary for the
construction of the Infrastructure Improvements, all in accordance with the Budget.
"Event of
Default" means an Event of Default under Section 6.1 of this Agreement.
"Force Majeure" means acts of God; fires; epidemics; landslides; floods; strikes; lockouts or
other industrial disturbances; acts of public enemies; acts or orders of any kind of any governmental
authority; insurrections; riots; civil disturbances; arrests; explosions; breakage or malfunctions of or
accidents to machinery, transmission pipes or canals; partial or entire failures of utilities; shortages
of labor, materials, supplies or transportation; lightning, earthquakes, hurricanes, tornadoes, storms
:w,.
or droughts; periods of unusually inclement weather or excessive precipitation; or any cause or
event not reasonably within the control of Multicon or the City, as the case maybe.
"Guaranteed Maximum Sum" means (a) $6,584,000 with respect to the Roadway Project
Improvements, (b) $400,000 with respect to the Sewer Project Improvements and (c) $808,425 with
respect to the Water Project Improvements. Provided, however, any portion of the Guaranteed
Maximum Sum allocable to the Roadway Project Improvements which has been certified by the
Authorized City Representative pursuant to Section 4.3 as available for other Infrastructure
Improvements may be allocated to the Guaranteed Maximum Sum allowable for the Sewer Project
Improvements and/or the Water Project Improvements or for such other purpose or purposes, all in
accordance with Section 4.3 of this Agreement.
"Infrastructure Improvements" means collectively, the Roadway Project Improvements, the
Sewer Project Improvements and the Water Project Improvements. Infrastructure Improvements
may, if mutually agreed to in writing by the Authorized City Representative and the Authorized
Multicon Representative, mean any of the Secondary Improvements
"Infrastructure Improvements Site" means the real estate described in Exhibit B of this
Agreement.
"Multicon " means Multicon Development Co., an Ohio corporation duly organized and
validly existing under the Constitution and laws of the State of Ohio, having its principal office in
Columbus, Ohio.
"Notice Address" means:
(a) As to the City:
City of Dublin, Ohio
5800 Shier-Rings Road
Dublin, Ohio 43016-7295
Attention: Director of Development
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(b) As to Multicon:
Multicon Development Co.
500 South Front Street
Suite 770
Columbus, Ohio 43215-7619
Attention: Deborah Rurik-Goodwin
or a different address as to which notice is given pursuant to Section 7.1 of this Agreement.
"Ordinance" means Ordinance No. 43-01 passed by the Council of the City on April 2,
2001.
"Person" shall mean an individual, a corporation, a partnership, an association, a limited
liability company, a joint stock company, a joint venture, a trust, an unincorporated organization, or
a government or any agency or political subdivision thereof.
"Roadway Project Improvements" means any real and/or personal property identified
generally under the heading Roadway Project Improvements as described on Exhibit A attached to
this Agreement and specifically described in the Construction Documents.
"Roadway Fund" means the Golf Course Roadway Project Fund created under the
Ordinance.
"Secondary Improvements" means any of the real and/or personal property identified
generally under the heading Secondary Improvements as described on Exhibit A or such other
improvements as may be agreed to in writing by the Parties.
"Sewer Project Improvements" means any real and/or personal property identified generally
under the heading Sewer Project Improvements as described on Exhibit A attached to this
Agreement and specifically described in the Construction Documents.
"Sewer Fund" means the Golf Course Sewer Project Fund created under the Ordinance.
"State" means the State of Ohio, one of the United States of America.
"Termination Date" means the date which is one (1) year after the Completion Date.
"Water Project Improvements" means any real and/or personal property identified generally
under the heading Water Project Improvements as described on Exhibit A attached to this
Agreement and specifically described in the Construction Documents.
"Water Fund" means the Golf Course Water Project Fund created under the Ordinance.
"World' means the construction of the Infrastructure Improvements in accordance with
Articles 2 and 3 of this Agreement.
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_
Section 1.2. Certain Words Used Herein; References. Any reference herein to the City,
any members or officers thereof, or other public boards, commissions, departments, institutions,
agencies, bodies or other entities, or members or officers thereof, includes without limitation,
entities or officials succeeding to their respective functions, duties or responsibilities pursuant to or
by operation of law or performing their functions lawfully.
Any reference to a section or provision of the Constitution of the State, the Act, a section,
provision or chapter of the Ohio Revised Code, federal or State laws includes without limitation,
that section, provision or chapter, or those laws or regulations, as amended, modified, revised,
N
supplemented or superseded from time to time.
Words of any gender include the correlative words of any other gender. Unless the context
indicates otherwise, words importing the singular number include the plural number, and vice versa.
The terms "hereof," "herein," "hereby," "hereto" and "hereunder", and similar terms, refer to this
Agreement; and the term "hereafter" means after, and the term "heretofore" means before the date
of delivery of this Agreement.
ARTICLE II
CONSTRUCTION OF THE INFRASTRUCTURE IlVIPROVEMENTS
Section 2.1. General Considerations. In consideration of Multicon's promise to cause to
be developed the Infrastructure Improvements, the City agrees to finance the Cost of Work, up to
but not exceeding the Guaranteed Maximum Sum, in accordance with this Agreement.
Section 2.2. Construction of the Infrastructure Improvements. Multicon covenants and
agrees that it will contract for the construction of the Infrastructure Improvements in Multicon's
name with a contractor or contractors, and the City covenants and agrees to finance the costs of the
Infrastructure Improvements from the funds deposited in the Construction Funds in accordance with
the terms and provisions of this Agreement and the Ordinance.
Multicon covenants and agrees:
(a) to make, execute, acknowledge and deliver any contracts, orders, receipts,
writings and instructions hereafter delivered, and do all other things which may be necessary
or advisable for the construction, improvement and equipping of the Infrastructure
Improvements, all in conformity with all then applicable governmental laws, rules and
regulations;
(b) pursuant to the provisions of this Agreement, to provide for the payment of
all fees, costs and expenses incurred in the construction, improvement and equipping of the
Infrastructure Improvements from funds made available therefor in accordance with this
Agreement, by the City or otherwise; and
-5-
(c) to the extent commercially reasonable, to ask for, demand, sue for, levy
upon, recover and receive all sums of money, indebtedness and other demands whatsoever
which may be due, owing or payable to Multicon under the terms of each contract,
agreement, obligation, bond, performance security, order and receipt in connection with the
construction, improvement and equipping of the Infrastructure Improvements and to enforce
the provisions of each contract, agreement, obligation, bond, performance security, order
and receipt in connection therewith.
Section 2.3. Completion Date and Certifications. The Parties acknowledge that the City
covenanted in the Development Agreement to exercise its best efforts to cause the Infrastructure
Improvements to be substantially complete on or before November 1, 2001. Consistent with such
covenant, the Parties agree to cooperate hereunder in order that the Infrastructure Improvements
may be substantially complete on or before November 1, 2001. The Parties further agree that the
Work may be completed in several phases as mutually agreed upon in writing by the Authorized
City Representative and the Authorized Multicon Representative. Finally, the Parties agree that
such completion date may be extended by mutual written agreement of the Authorized City
Representative and the Authorized Multicon Representative.
The Completion Date of each phase of the Work shall be specified to the City in a certificate
signed by the Authorized Multicon Representative, which certificate (a) shall describe all property
acquired or installed as part of that completed phase of the Work from the monies deposited in the
Construction Funds, (b) shall state the Cost of Work allocable to that completed phase, and (c) shall
state that:
(i) the construction, improvement and equipping of that phase of the Work have
been completed substantially in accordance with the related Construction Documents, all
costs then due and payable in connection therewith have been paid, and all obligations, costs
and expenses in connection with that phase of the Work and payable out of the Construction
Funds or otherwise have been paid or discharged except for any amounts retained in the
Construction Funds as provided below;
(ii) all other facilities necessary in connection with that phase of the Work have
been constructed, improved and equipped; and
(iii) the construction, improvement and equipping of that phase of the Work have
been accomplished in a manner which conforms to all then applicable governmental laws,
rules and regulations.
The certificate also shall specify (d) the date by which the foregoing events shall have occurred, (e)
which costs and expenses, if any, are not yet due, or are being contested by Multicon, and (f) what
amounts should be retained for any other reasons. In reliance thereon, the City may retain in the
Construction Funds an amount equal to the aggregate of those costs and expenses. Notwithstanding
the foregoing, the certificate shall state that it is given without prejudice to any rights against third
parties which then exist or which may come into being subsequently.
-6-
Section 2.4. Acceptance of Infrastructure Improvements. Acceptance by the City of the
Infrastructure Improvements in one or more phases shall not relieve Multicon of its responsibility
for defects in material or workmanship as set forth in Section 5.5.
ARTICLE III
FURTHER PROVISIONS RELATING TO
THE CONSTRUCTION OF THE INFRASTRUCTURE IMPROVEMENTS
Section 3.1. Construction Documents. Multicon covenants and agrees that the
construction, improvement and equipping of the Infrastructure Improvements will be accomplished
in accordance with the Construction Documents as approved by the Authorized City Representative,
as those Construction Documents may be revised or supplemented from time to time, provided such
revisions or supplements are approved by the Authorized City Representative.
Section 3.2. Prevailing Wage. The Parties acknowledge and agree that the Infrastructure
Improvements are subject to the prevailing wage requirements of Ohio Revised Code Chapter 4115
and all wages paid to laborers and mechanics employed on the Infrastructure Improvements shall be
paid at not less than the prevailing rates of wages of laborers and mechanics for the classes of work
called for by the Infrastructure Improvements, which wages shall be determined in accordance with
the requirements of that Chapter 4115. The Parties shall comply, and Multicon shall require
compliance by all contractors and shall require all contractors to require compliance by all
subcontractors working on the Infrastructure Improvements, with all applicable requirements of that
Chapter 4115.
Section 3.3. Awarding of Contracts. The City has prepared or caused to be prepared the
Plans and Specifications for the Infrastructure Improvements and has submitted them to Multicon
for review. The Parties agree that Multicon may request and receive bids on the Infrastructure
Improvements in one or more packages, the number and form of which shall be subject to the
reasonable approval of the Authorized City Representative. Multicon agrees that with respect to
each bid package, Multicon shall request and receive no less than three (3) responsible bids, except
as may otherwise be approved in writing by the Authorized City Representative. Multicon shall
award the contract for each bid package subject to the reasonable approval of the Authorized City
Representative.
Section 3.4. Traffic Control Requirements. Multicon shall be responsible for ensuring
the provision, through contractors or otherwise, of all traffic control devices, flaggers and police
officers required to properly and safely maintain traffic. All traffic control devices shall be
furnished, erected, maintained and removed in accordance with the "Ohio Manual of Traffic
Control Devices for Construction and Maintenance Operation."
Section 3.5. Security for Performance. Multicon shall furnish or require all contractors
performing Work to furnish prior to commencement of construction of that Work, one of the
following types of project guarantees:
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(a) Contract Bonds. A surety bond which shall name Multicon and the City as
obligee in the form provided by Section 153.57 of the Ohio Revised Code. The performance
and materialman's bond shall cover all Costs of Work, including a guarantee period of one
(1) year set forth in Section 5.5 hereof.
(b) Irrevocable Letter of Credit. A letter of credit naming Multicon and the City
as obligee in the form provided by 153.57 of the Ohio Revised Code. The letter of credit
,,a„ shall be subject to the Uniform Customs and Practices for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500. The letter of credit
shall cover all Costs of Work, including a guarantee period of one (1) year set forth in
Section 5.5 hereof.
Any bond shall be executed by sureties that are licensed to conduct business in the State and are
named in the current list of "companies Holding Certificates of Authority as Acceptable Securities
on Federal Bonds and as Acceptable Insurance Companies" as published in Circular 570 (amended)
by the Audit Staff Bureau of Accounts, U.S. Treasury Department or as may be otherwise approved
in writing by the Authorized City Representative. All bonds signed by an agent must be
accompanied by a certified copy of the authority to act. If the surety of any bond so furnished by a
contractor declares bankruptcy, become insolvent or its right to do business is terminated in the
State, Multicon shall within five (5) days thereafter cause the contractor to substitute another bond
and surety, both of which shall be acceptable to the City and Multicon. Multicon shall provide to
the City prior to commencement of any Work by each contractor a copy of the Contract Documents
relating to the Work to be performed by that contractor and the security for performance provided
by the contractor pursuant to this Section.
Section 3.6. Cost of Work in Excess of Guaranteed Maximum Sum. Multicon agrees to
assume and pay the Cost of Work in excess of the Guaranteed Maximum Sum and to indemnify the
City against any Cost of Work in excess of the Guaranteed Maximum Sum.
Section 3.7. Public Use. Multicon agrees that, upon satisfactory completion of the
Infrastructure Improvements in accordance with this Agreement, such Infrastructure Improvements
°1°~' shall be dedicated to the City for public use.
Section 3.8. Equal Opportunity Clause. Multicon will, in all solicitations or
advertisements for employees placed by or on behalf of Multicon, state that Multicon is an equal
opportunity employer. Multicon shall require all contractors and shall require all contractors to
require all subcontractors to include in each contract a summary of this equal opportunity clause.
Section 3.9. Insurance Requirements. Multicon shall require all contractors and shall
require all contractors to require all subcontractors to take out or cause to be taken out and
maintained until such time as that contractor or subcontractor has completed its portion of the Work,
such insurance as is required by the Construction Documents, which insurance shall protect the
Parties and any contractor or subcontractor performing Work covered by this Agreement from the
types of claims for damages as set forth in the Construction Documents. Such insurance policy or
policies shall include the Parties as additional named insureds. Such insurance policies shall further
provide that any attorney fees accruing or payable with respect to a claim under such policy shall be
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paid by the insurer and shall not count against the coverage limits of such policy. Prior to
commencement of any portion of the Work by any contractor or subcontractor, such contractor or
subcontractor, as the case may be, shall provide to the Parties an original certificate of insurance as
proof of such insurance coverage.
Such insurance shall remain in full force and effect during the Agreement Term. Insurance
may not be changed or canceled unless all insureds, including the Parties, are notified in writing not
less than thirty days prior to such change or cancellation.
Section 3.10. City Income Tax Withholdings. Multicon shall withhold and pay, shall
require all contractors to withhold and pay, and shall require all contractors to require all
subcontractors to withhold and pay, all City Income Taxes due or payable with respect to wages,
salaries, commissions and any other income subject to the provisions of Chapter 35, Dublin City
Codes.
Section 3.11. Compliance with Occupational Health and Safety Act of 1970. Multicon
and all contractors and subcontractors shall be solely responsible for their respective compliance
with the Occupational Safety and Health Act of 1970 under this Agreement.
Section 3.12. Provision of Security for Mechanic's Liens. To the extent any materiahnan,
contractor, or subcontractor files and records a mechanic's lien against the Infrastructure
Improvements, Multicon shall, or shall require the appropriate contractor to, provide any security
required by Ohio Revised Code Section 1311.11 to cause that mechanic's lien to be released of
record with respect to the Infrastructure Improvements.
ARTICLE IV
PAYMENT OF COSTS
Section 4.1. Deposit of Monies in the Construction Funds. Upon the execution of this
Agreement, the City covenants and agrees to deposit monies into the respective Construction Funds
in amounts equal to the respective Guaranteed Maximum Sums payable from each Construction
Fund, for the purpose of financing the Cost of Work.
Section 4.2. Disbursements from Construction Funds.
(a) The City agrees to pay the Cost of Work up to a maximum amount of the
Guaranteed Maximum Sum and with those payments made in accordance with the
Construction Documents, including any retainage as provided for therein, based on written
requisitions executed by the Authorized Multicon Representative substantially in the form
attached hereto as Exhibit C. The Authorized City Representative, with the concurrence of
the Director of Law, may agree to vary the lien waiver requirements in paragraph (vii) of
attached Exhibit C. All disbursements requested pursuant to this section shall be subject to
the prior approval of the Director of Finance. All disbursements pursuant to this Section
shall be made solely from the Construction Funds.
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(b) Pursuant to the Ordinance, the City has established the Construction Funds
for the payment of the Cost of Work, up to but not exceeding the respective Guaranteed
Maximum Sums for each of the Roadway Project Improvements, the Sewer Project
Improvements and the Water Project Improvements. The monies on deposit in the
Construction Funds shall be disbursed from time to time to make payments to persons
designated by Multicon in respect of portions of the Cost of Work, upon receipt by the City
of a written requisition executed by the Authorized Multicon Representative substantially in
the form attached hereto as Exhibit C. Upon request of the Authorized City Representative,
Multicon shall furnish invoices or other documentation in connection with each such
Written Requisition. Any Written Requisition under this Section 4.2 may be in the form of
a communication by telegram, telex, or facsimile transmission, but if in such form, it shall
be promptly confirmed by a Written Requisition executed by an Authorized Multicon
Representative and approved by the Authorized City Representative.
(c) In paying any Written Requisition under this Section 4.2, the City shall be
entitled to rely as to the completeness and accuracy of all statements in such Written
Requisition upon the approval of such Written Requisition by an Authorized Multicon
Representative, execution thereof, and communication thereof by telegram, telex, or
facsimile transmission, to be conclusive evidence of such approval, and Multicon shall
indemnify and save harmless the City from any liability incurred in connection with any
Written Requisition so executed or communicated by an Authorized Multicon
Representative.
(d) Multicon shall not submit or cause to be submitted to the City any Written
Requisition pursuant to this Section 4.2 and shall have no claim upon any monies in the
Construction Funds, so long as there shall have occurred and be continuing any Event of
Default.
~„,w, (e) The City shall remit payment in accordance with a Written Requisition
submitted in compliance with this Agreement within twenty-one (21) days following receipt
of such Written Requisition.
(f) Multicon acknowledges and agrees that the City may, from time to time,
expend monies on deposit in the various Construction Funds for purposes of paying costs of
engineering fees, permits to install, materials testing and right of way acquisitions, all in
connection with the design and construction of the Infrastructure Improvements. The City
agrees that it shall, prior to the time any such payments are made, notify Multicon of such
proposed payment, the amount of such payment and the Construction Fund from which such
payment will be made.
Section 4.3. Transfer of Excess Monies in Roadway. At any time during the term
of this Agreement, the Authorized City Representative may determine and certify to Multicon
whether any monies are on deposit in the Roadway Fund which, in the sole determination of the
City, will not be needed to pay any further costs associated with the Roadway Project Improvements
(such excess monies being referred to herein as the "Excess Roadway Monies"). If such Excess
Roadway Monies remain in the Roadway Project Fund, the City may, at the sole discretion of the
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Authorized City Representative, (a) transfer those Excess Roadway Monies to the Sewer Fund
and/or the Water Fund to the extent necessary to provide for the completion of the Sewer Project
Improvements and/or the Water Project Improvements, respectively, (b) use those Excess Roadway
Monies to provide for the design and construction of one or more of the Secondary Improvements
in accordance with Section 4.4, or (c) transfer those Excess Roadway Monies to the City's General
Fund.
Section 4.4. Design and Construction of Secondary Improvements. If the City
determines pursuant to Section 4.3 that such Excess Roadway Monies shall be used to provide for
the design and construction of Secondary Improvements, the Secondary Improvements to be
designed and construction shall be approved in writing by the Authorized City Representative and
the Authorized Multicon Representative. The Secondary Improvements designated pursuant to this
Section 4.4 shall be designed and constructed as Infrastructure Improvements in accordance with
this Agreement. Multicon acknowledges and agrees that the City shall not be required to pay any
costs associated with the design and construction of any Secondary Improvements in an amount
which exceeds the Excess Roadway Monies.
Section 4.5. Multicon Required to Pay Costs if Amounts in Construction Funds
Insufficient. The City represents and warrants that it will deposit the respective Guaranteed
Maximum Sums into the Roadway Fund, the Sewer Fund and the Water Fund, all in accordance
with the terms of this Agreement. In the event that the monies in the respective Construction Funds
are not sufficient as needed to pay in full the Cost of Work in accordance with the respective
Guaranteed Maximum Sums, Multicon covenants and agrees, for the benefit of the City, to pay that
portion of the Cost of Work necessary to complete the construction, improvement and equipping to
be accomplished pursuant to this Agreement which may be in excess of the monies available
therefor in the Construction Funds.
The City does not make any representation or warranty, either express or implied, that the
monies which will be paid into the Construction Funds, and which under the provisions of this
Agreement will be available for payment of the costs of the construction, improvement and
equipping to be accomplished pursuant hereto, will be sufficient to pay all of the costs thereof or
costs and expenses which will be incurred in connection therewith.
Multicon covenants and agrees that if, after exhaustion of the monies in the Construction
Funds which shall not be less than the Guaranteed Maximum Sum, Multicon pays pursuant to this
Section any portion of the costs and expenses necessary for the completion of the Infrastructure
Improvements as required under this Agreement, Multicon will not be entitled to any
reimbursement therefor from the City.
ARTICLE V
CERTAIN REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
Section 5.1. Certain Representations, Warranties, Covenants and Agreements of Citv.
The City represents and warrants as of the date of delivery of this Agreement that:
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e.~ _ ~
(a) It is a municipal corporation and political subdivision duly organized and
validly existing under the Constitution and laws of the State.
(b) It will have duly accomplished all conditions necessary to be accomplished
by it prior to the execution and delivery of the City Documents and to constitute such City
Documents as valid and binding instruments enforceable in accordance with their respective
terms.
(c) It is not in violation of or in conflict with any provision of the laws of the
State which would impair its ability to observe and perform its covenants, agreements and
obligations under the City Documents.
(d) It has and will have full power and authority (i) to execute, deliver, observe
and perform the City Documents and all other instruments and documents executed and
delivered by the City in connection therewith and (ii) to enter into, observe and perform the
transactions contemplated in the City Documents and those other instruments and
documents.
(e) It has or will have duly authorized the execution, delivery, observance and
performance of the City Documents.
Section 5.2. Certain Representations. Warranties. Covenants and Agreements of
Multicon. Multicon represents and warrants as of the date of delivery of this Agreement that:
(a) Multicon (i) is an Ohio corporation duly organized, validly existing and in
good standing under the laws of the State and (ii) has all requisite power and authority and
all necessary licenses and permits to own and operate its properties and to carry on its
business as now being conducted and as presently proposed to be conducted.
(b) There are no actions, suits, proceedings, inquiries or investigations pending,
or to the knowledge of Multicon threatened, against or affecting Multicon in any court or
before any governmental authority or arbitration board or tribunal which involve the
possibility of materially and adversely affecting the transactions contemplated by this
Agreement or the ability of Multicon to perform its obligations under this Agreement.
(c) The execution and delivery by Multicon of this Agreement and the
compliance by Multicon with all of the provisions hereof (i) are within the authority and
powers of Multicon, (ii) will not conflict with or result in any breach of any of the
provisions of, or constitute a default under, any agreement, articles of organization,
operating agreement or other instrument to which Multicon is a party or by which it maybe
bound, or any license, judgment, decree, law, statute, order, rule or regulation of any court
or governmental agency or body having jurisdiction over Multicon or any of its activities or
properties, and (iii) have been duly authorized by all necessary action on the part of
Multicon.
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(d) No event has occurred and no condition exists with respect to Multicon that
would constitute a default under this Agreement or which, with the lapse of time or with the
giving of notice or both, would become an Event of Default under this Agreement.
Section 5.3. Multicon to Maintain Legal Existence. Multicon covenants and agrees that it
will maintain its legal existence so long as Multicon remains liable under this Agreement.
Section 5.4. Indemnification. Multicon shall indemnify, defend and hold harmless the
City, its agents, and employees from and against any and all suits or claims for damages or losses
arising or allegedly arising out of, or resulting from performance of the Work by Multicon, its
contractors, subcontractors, agents, employees or representatives. Multicon shall require that all
contractor agreements, and shall require all contractors to require that all subcontractors agreements,
include indemnification language as found above. Multicon shall promptly reimburse the City and
its successors and assigns, for any cost, expense or attorney's fees incurred on account of any such
suit or claim incurred in enforcing the terms of this Agreement. This indemnification provision is
agreed by Multicon to expressly waive Multicon's immunity, if any, as a complying employer
under Section 35, Article II of the Ohio Constitution and Worker's Compensation laws of the Ohio
Revised Code from indemnifying and holding the City harmless from claims by employees, agents
or contractors of Multicon. This indemnity does not cover (a) any injuries or damages occurring
after the completion of construction of the Work by Multicon, or (b) any injuries or damages arising
out of the actions or inactions of the City or its agents or employees.
Section 5.5. Further Multicon Guaranties Relating to the Infrastructure Improvements.
Multicon warrants that it will cause to be exercised in the performance of the Work the standard of
care normally exercised by nationally recognized engineering and construction organizations
engaged in performing comparable services. Multicon further warrants that each phase of the Work
shall be free from defects in materials and workmanship (without regard to the standard of care
exercised in its performance) for a period of one (1) year after final written acceptance of that phase
of the Work. Multicon shall at its own expense:
(a) Correct or re-execute, or cause to be corrected or re-executed, any of the
Work that fails to conform with the requirements of the Construction Documents and
appears during the prosecution of the Work;
(b) Correct, or cause to be corrected, any defects in materials and workmanship
of the Work (without regard to the standard of care exercised in its performance) which
appear within a period of one (1) year after final written acceptance of that Work or within
such longer period of time as may be set forth in the Construction Documents; and
(c) Replace, repair, or restore, or cause replacement, repair or restoration of,
any parts of the Work or any of the fixtures, equipment, or other items placed therein that
are injured or damaged as a consequence of any such failure or defect, or as a consequence
of corrective action taken pursuant hereto. Should Multicon fail to make, or cause to be
made, corrections required by this Section, then the City may do so at the expense and for
Multicon.
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Section 5.6. Multicon Representations as to Personal Property Taxes. Multicon
represents that at the time of the execution of this Agreement, Multicon was not charged with any
delinquent personal property taxes on the general tax list of personal property of Franklin County.
Further, Multicon shall require all contractors to execute an affidavit in the form attached as Exhibit
D, a copy of which certificate shall be delivered to the Authorized City Representative prior to the
commencement of any work by that contractor or subcontractor.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default and Remedies. (a) Except as otherwise provided in this
Agreement, in the event of any default in or breach of this Agreement, or any of its terms or
conditions, by either Party hereto, or any successor to such Party, such Party or successor shall,
upon written notice from the other, proceed promptly to cure or remedy such default or breach. In
case such remedial action is not taken or not diligently pursued within thirty (30) days of such
written notice, the Party asserting default or breach may institute such proceedings at law or in
equity, or in the case of a claim against the City, an action in mandamus, as may be necessary or
desirable in its opinion to remedy such default or breach.
(b) Notwithstanding the preceding paragraph, if by reason of Force Majeure any Party
fails in the observance or performance of any of its agreements, duties or obligations to be observed
or performed under this Agreement, the Party shall not be deemed to be in default under this
agreement. The Party will give notice promptly to the other of any event of Force Majeure and will
use its best efforts to remedy that event with all reasonable dispatch; provided that a Party will not
be required to settle strikes, lockouts or other industrial disturbances by acceding to the demands of
any opposing Person, when in that Party's judgment, that course would be unfavorable to it; and no
suspension will constitute an Event of Default if that suspension is a result of the application of
,R..~ federal or State wage, price or economic stabilization controls, cost containment requirements,
restrictions on rates, charges or revenues of Multicon, which prevents Multicon from observing and
performing the applicable covenant, agreement or obligation.
(c) The declaration of an Event of Default hereunder and the exercise of rights,
remedies and powers upon the declaration are subject to any applicable limitations of federal
bankruptcy law affecting or precluding the declaration or exercise during the pendency of or
immediately following any bankruptcy, liquidation or reorganization proceedings.
Section 6.2. No Remedy Exclusive. Unless provided expressly otherwise herein, no
right, remedy or power conferred upon or reserved to either Party under this Agreement is intended
to be exclusive of any other available right, remedy or power, but each right, remedy and power
shall be cumulative and concurrent and shall be in addition to every other right, remedy and power
available under this Agreement or existing at law, in equity or by statute or otherwise now or
hereafter.
No exercise, beginning of the exercise, or partial exercise by either Party of any one or more
rights, remedies or powers shall preclude the simultaneous or later exercise by that Party of any or
w-=®
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all other rights, remedies or powers. No delay or omission in the exercise of any right, remedy or
power accruing upon any Event of Default hereunder shall impair that or any other right, remedy or
power or shall be construed to constitute a waiver of any Event of Default hereunder, but any right,
remedy or power may be exercised from time to time and as often as may be deemed to be
expedient.
Section 6.3. No Additional Waiver Implied by One Waiver. In the event that any
covenant, agreement or obligation under this Agreement shall be breached by either Multicon or the
City and the breach shall have been waived thereafter by Multicon or the City, as the case may be,
the waiver shall be limited to the particular breach so waived and shall not be deemed to waive any
other or any subsequent breach thereunder.
No failure by either Party to insist upon the strict observance or performance by the other
Party of any covenant, agreement or obligation under this Agreement and no failure to exercise any
right, remedy or power consequent upon a breach thereof, shall constitute a waiver of any right to
strict observance or performance or a waiver of any breach. No express waiver shall be deemed to
apply to any other breach or to any existing or subsequent right to remedy the breach.
Section 6.4. Waiver of A~praisement. Valuation and Other Laws. In the event that there
is an Event of Default under this Agreement and the defaulting Party does not contest the existence
of the Event of Default, the defaulting Party covenants and agrees to waive, and waives hereby, the
benefit of all appraisement, valuation, stay, extension or redemption laws in force from time to time,
all right of appraisement and redemption to which it maybe entitled, and all rights of marshaling, all
to the extent that the defaulting Party may effect that waiver lawfully. Neither the defaulting Party,
nor anyone claiming through it, shall set up, claim or seek to take advantage of any of those laws or
rights.
Section 6.5. Right to Observe and Perform Covenants. Agreements and Obli atg ions. If
Multicon shall fail to observe or perform any covenant, agreement or obligation, under this
Agreement, without demand upon Multicon and without waiving or releasing any covenant,
agreement, obligation or Event of Default, upon thirty (30) days' written notice to Multicon, the
City may observe or perform that covenant, agreement or obligation for the account of Multicon,
provided that the City shall have no obligation to take any of those actions. Any expenses incurred
by the City under this Section 6.5 shall be payable first from the respective Construction Fund in
accordance with this Agreement, and second shall be charged to and payable by Multicon.
Section 6.6. Provisions Subject to Applicable Law. All rights, remedies and powers
hereunder may be exercised only to the extent permitted by applicable law. Those rights, remedies
and powers are intended to be limited to the extent necessary so that they will not render this
Agreement invalid, unenforceable or not entitled to be recorded, registered or filed under any
applicable law.
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.
ARTICLE VII
MISCELLANEOUS
Section 7.1. 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 writing and shall be deemed sufficiently 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 be deemed to have been received
when the return receipt is signed or refused. A duplicate copy of each notice, certificate, request or
other communication given hereunder to the City or Multicon shall be given also to the others. 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.
Section 7.2. Extent of Provisions Re arding City. All representations, warranties,
covenants, agreements and obligations of the City under this Agreement shall be effective to the
extent authorized and permitted by applicable law. None of those representations, warranties,
covenants, agreements or obligations shall be deemed to be a representation, warranty, covenant,
agreement or obligation of any present or future member, officer, agent or employee of the City in
other than his or her official capacity.
Section 7.3. Extent of Provisions Regasdin~ the Citv and Multicon; No Personal
Liability. No representation, warranty, covenant, agreement, obligation or stipulation contained in
this Agreement shall be deemed to constitute a representation, warranty, covenant, agreement,
obligation or stipulation of any present or future trustee, member, officer, agent or employee of the
City or Multicon in an individual capacity, and to the extent authorized and permitted by applicable
law, no official executing or approving the City's or Multicon's participation in this Agreement
shall be liable personally under this Agreement or be subject to any personal liability or
r accountability by reason of the issuance thereof.
Section 7.4. Bindin,~. This Agreement shall inure to the benefit of and shall be
binding upon the Parties, and their respective permitted successors and assigns, subject, however, to
the specific provisions hereof; provided that any covenant, agreement or obligation of the City
which requires the expenditure of funds shall not be a general debt of the City.
The Parties will observe and perform faithfully at all times all covenants, agreements and
obligations under this Agreement.
Each covenant, agreement and obligation of the City under this Agreement is binding upon
each officer of the City who may have the authority or duty from time to time under law to take any
action which may be necessary or advisable to observe or perform that covenant, agreement or
obligation.
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Section 7.5. Execution Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which shall constitute but one
and the same agreement. It shall not be necessary in proving this Agreement to produce or account
for more than one of those counterparts.
Section 7.6. Severability. In case any section or provision of this Agreement, or any
covenant, agreement, obligation or action, or part thereof, made, assumed, entered into or taken, or
any application thereof, is held to be illegal or invalid for any reason,
(a) that illegality or invalidity shall not affect the remainder hereof or thereof,
any other section or provision hereof, or any other covenant, agreement, obligation or
action, or part thereof, made, assumed, entered into or taken, all of which shall be construed
and enforced as if the illegal or invalid portion were not contained herein or therein,
(b) the illegality or invalidity of any application hereof or thereof shall not affect
any legal and valid application hereof or thereof, and
(c) each section, provision, covenant, agreement, obligation or action, or part
thereof, shall be deemed to be effective, operative, made, assumed, entered into or taken in
the manner and to the full extent permitted by law.
Section 7.7. 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.
Section 7.8. Governing Law and Choice of Forum. This Agreement shall be governed by
and construed in accordance with the laws of the State. All claims, counterclaims, disputes and
other matters in question between the City, its agents and employees, and Multicon, its employees,
contractors, subcontractors and agents arising out of or relating to this Agreement or its breach will
be decided in a court of competent jurisdiction within the State.
..b
Section 7.9. Survival of Representations and Warranties. All representations and
warranties of Multicon and the City in this Agreement shall survive the execution and delivery of
this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the City and Multicon have caused this Agreement to be executed in
their respective names by their duly authorized representatives, all as of the date first written above.
CITY OF DUBLIN, OHIO
By:
Printed: Timothy C. Hanslev
Title: CitYMana~er
By:
Printed: Marsha I. Grigsby
Title: Director of Finance
Approved as to Form:
By:
Printed: Stephen J. Smith
Title: Director of Law
MULTICON DEVELOPMENT CO.
By:
Printed: Peter H. Edwards
Title: Chairman
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FISCAL OFFICER' S CERTIFICATE
The undersigned, Director of Finance of the City under the foregoing Agreement, certifies
hereby that the monies required to meet the obligations of the City during the year 2001 under the
foregoing Agreement have been appropriated lawfully for that purpose, and is in the Treasury of the
City or in the process of collection to the credit of an appropriate fund, free from any previous
encumbrances. This Certificate is given in compliance with Sections 5705.41 and 5705.44, Ohio
Revised Code.
Dated: April , 2001
Director of Finance
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EXHIBIT A
INFRASTRUCTURE IMPROVEMENTS
The Infrastructure Improvements shall consist of the following improvements as described
in greater detail in the Construction Documents:
Roadway Pr
ject Improvements:
m
The Roadway Project Improvements shall include of the design and construction of
Woerner Temple Road from Avery Road to Eiterman Road and Eiterman Road from a point
approximately 250 feet south of Woerner Temple Road north to Shier-Rings Road, including all
related intersection improvements, tunnels and all related appurtenances thereto.
Sewer Project Improvements:
The Sewer Project Improvements shall include the design and construction of
approximately 2700 linear feet of sanitary sewer line along Shier-Rings Road, east from
Eiterman Road, and all related appurtenances thereto.
Water Proiect Improvements:
The Water Project Improvements shall include the design and construction of
approximately 33201inear feet of water line along Eiterman Road, north from Shier-Rings Road,
approximately 3200 linear feet of water line along Shier-Rings Road, east from Eiterman Road,
and approximately 990 linear feet of water line along Avery Road north and south of Woerner
Temple Road, and all related appurtenances.
Secondary Improvements:
The Secondary Improvements shall include, but not be limited to, burial of existing power
lines, landscaping and irrigation improvements in and around the Infrastructure Improvements Site,
lighting improvements along the Roadway Improvements Project, and other parks and recreational
facilities and improvements in and around the Infrastructure Improvements Site.
A-1
EXHIBIT B
INFRASTRUCTURE IMPROVEMENTS SITE
B-1
il... _ _
EXHIBIT C
WRITTEN REQUISITION
The City of Dublin, Ohio
5800 Shier-Rings Road
Dublin, Ohio 43016-7295
Attention: ,Authorized City Representative
Re: Certificate and Request for Disbursement of Funds From the City of Dublin
[Roadway][Sewer][Water] Construction Fund
You are hereby requested to disburse from the [Roadway][Sewer][Water] Construction
Fund described above, which was created by Ordinance No. -O1, and in accordance with the
provisions of Section 4.2 of the Infrastructure Agreement, dated 2001 (the
"Agreement") between the City and Multicon Development Co. ("Multicon"), the amount of
$ as more fully set forth on Schedule A attached hereto to be paid pursuant to this
Written Requisition No. to the payee(s) listed on such Schedule A for the purposes therein
set forth.
The undersigned Authorized Multicon Representative does hereby certify in compliance
with Section 4.2 of that certain Agreement that:
(i) I have read the Agreement and definitions relating thereto and have reviewed
appropriate records and documents of Multicon relating to the matters covered by this Written
Requisition.
(ii) The amount and nature and the name and address of the payee of each item of the
Cost of Work hereby requested to be paid are shown on Schedule A attached hereto;
(iii) The disbursement herein requested is for an obligation properly incurred, is a
proper charge against the specified Construction Fund as a Cost of Work (as defined in the
Agreement), has not been the basis of any previous withdrawal from the specified Construction
Fund, and, if for acquisition or installation of the Infrastructure Improvements, was made in
accordance with the Construction Documents;
(iv) The Infrastructure Improvements have not been materially injured or damaged by
fire or other casualty in a manner which, if not repaired or replaced, would materially impair the
ability of Multicon to meet its obligations under the Agreement;
(v) Multicon is in material compliance with all provisions and requirements of the
Agreement;
C-1
r
(vi) No Event of Default set forth in Article VI of the Agreement, and no event which
but for the lapse of time or the giving of notice or both would be such an Event of Default, has
occurred and is continuing;
(vii) Attached hereto as Schedule B are lien waivers from any materialmen, contractors
and subcontractors who have provided services or materials to the Infrastructure Improvements
in excess of Five Hundred Dollars ($500) and who were paid pursuant to the previous Written
Requisition and Multicon acknowledges its obligation to require, or require provision of, certain
security pursuant to Section 3.12 of the Infrastructure Agreement in the event any mechanic's
liens are filed in connection with the Infrastructure Improvements;
(viii) The Infrastructure Improvement are being and have been installed substantially in
accordance with the Construction Documents for the Infrastructure Improvements, and all
materials for which payment is requested have been delivered to and remain on the Infrastructure
Improvements Site;
(ix) The payment requested hereby does not include any amount which is not entitled
to be retained under any holdbacks or retainages provided for in any agreement;
(x) Multicon has asserted its entitlement to all available manufacturer's warranties to
date upon acquisition of possession of or title to such improvements or any part thereof which
warranties have vested in Multicon and shall be wholly transferable to the City; and
(xi) All proceeds of the specified Construction Fund heretofore disbursed have been
spent in accordance with the Written Requisition applicable thereto.
(xii) The amount requested herein represents $ from the original
estimated cost in the budget and $ from the contingency portion of the budget.
emu.
EXECUTED this day of ,
By:
Authorized Multicon Representative
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SCHEDULE A
Requisition No. for the City of Dublin, Ohio
For the purpose of making the following payments in respect of work performed by the
following Payee(s):
Payee
Address of Payee
Amount of Payee Invoice : $
Purpose of Payment
Payment Requested by this Requisition $
EXHIBIT D
PERSONAL PROPERTY TAX AFFIDAVIT
STATE OF OHIO )
ss
FRANKLIN COUNTY )
The affiant being first duly sworn states that he or she is the
(Title)
of ,and that he or she or (check one):
(Company Name) (Company Name)
1. Was not charged, at the time the bid for
(Infrastructure Improvements)
was submitted, with any delinquent personal property taxes on the general tax list
of personal property of any county in which the taxing district has territory; or
2. Was charged at the time the bid for
(Infrastructure Improvements)
was submitted, with delinquent personal property taxes on the general tax list of
personal property of any county, in which the taxing district has territory, and
attached hereto is a statement setting forth the amount of such due and unpaid
delinquent taxes and any due and unpaid penalties and interest thereon.
Further Affiant sayeth not.
Company
By:
Affiant and Title
Sworn to before me, a Notary Public, this the day of ,
Notary Public
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EXHIBIT E
COST OF WORK BUDGET
Roadwayp Project Improvementsl:
Woerner Temple Road Improvements $3,212,000
Eiterman Road Improvements 3,372,000
Total Roadway Project Improvements Budget $6,584,000
Sewer Project Improvementsl:
Shier-Rings Road Sewer Line 400,000
Total Sewer Project Improvements Budget 400,000
Water Project Imurovements3:
Shier-Rings Road Water Line 313,000
Eiterman Road Water Line (North of Shier Rings Road) 355,200
Avery Road Water Line 140,225
Total Water Project Improvements Budget 808,425
Total Cost of Work Budget $7,792,425
I Roadway Project Improvements are payable solely from the Roadway Construction Fund.
z Except as otherwise provided herein, Sewer Project Improvements are payable solely from the
Sewer Construction Fund.
s Except as otherwise provided herein, Water Project Improvements are payable solely from the
Water Construction Fund.
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