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THIS LANDOWNERS' AGREEMENT ("Agreement") is by and between R. W. Beckett
Co. ("Beckett:"), located at 38251 Center Ridge Road, North Ridgeville, Ohio, Forest City Land Group ("Forest City"), located at 1250 Terminal Tower, 50 Public Square, Suite 1170,
Cleveland, Ohio, and FJD Properties, LLC ("FJD"), located at 37000 Center Ridge Road, North Ridgeville, Ohio 44039 (collectively "Landowners"), in the First part and the City of North Ridgeville ("City"), in the second part.

WHEREAS, the City is aware of the need for a sanitary trunk sewer to serve the western part of the City and to eliminate existing and potential hazards to public health and the environment as well as comply with regulatory requirements of the Ohio Environmental Protection Agency; and

WHEREAS, the Landowners are desirous of having the City construct a sanitary trunk sewer to serve, directly or indirectly, certain lands that they own or control in the western portion of the City; and

WHEREAS, the Landowners are willing to petition the City for the construction of said sanitary trunk sewer and to request that special assessments be levied against their properties for a portion of the cost thereof;

NOW, THEREFORE, the Landowners and City agree as follows:

1. Upon the fulfillment of all contingencies to this Agreement, including, but not limited to the Landowners' presentation of a duly signed petition in substantially the form attached hereto as Exhibit A ("Petition"), the City will construct a sanitary trunk sewer, together with necessary appurtenances and work incidental thereto, commencing at an existing manhole in Case Road at the northern corporate boundary of the City, thence running south in Case Road a distance of approximately 300 feet and easterly and southerly from that point in the City easements, properties and rights-of-way, dedicated and to be dedicated, to a point approximately 2,400 feet east of and 2,600 feet south of the intersection of Race Road and Sugar Ridge Road (hereinafter "the Improvement"). The route of the Improvement is generally depicted on the map attached hereto as Exhibit B. The precise route, including the northerly and southerly termini, of the Improvement shall be as set forth in the plans and specifications for the Improvement prepared by K.E. McCartney & Associates, Inc. and KS Associates, Inc. and reviewed by the Landowners and City. Major revisions to the route of the Improvement shall only be made upon the written consent of the City and the Landowner/s affected by the revision.

The City's obligation to construct the Improvement is conditioned upon the City's (i) receipt of an acceptable bid for a contract for construction; (ii) execution of a contract for construction; (iii) sale and issuance of notes to provide monies for paying all costs of the Improvement; and (iv) receipt of all applicable governmental and regulatory approvals for the Improvement.

2. The Improvement shall be constructed so that at the point that it crosses Center Ridge Road, the Improvement will be able to accommodate the proposed City project known as Phase II, the western Center Ridge Road sewer line.

3. The Landowners will provide, to the extent that they own or control, or cooperate with the City to obtain the properties and easements necessary for the Improvement for dedication to the City's public use.

4. The Landowners will circulate the Petition for the Improvement and make a good faith effort to gather signatures from the owners of benefited properties, not parties to this Agreement, who will thereby agree to have special assessments levied against their properties to pay the properties' portion of the cost of the Improvement.

5. The City will not levy special assessments for the Improvement against any properties the owners of which do not join in the Petition for the Improvement.

6. The City has adopted the Connection Charge Ordinance, in the form attached hereto as Exhibit C, revising the charges imposed for a connection to the City's sanitary sewer system to include an additional charge generally applicable for connections of properties that have not been assessed for a portion of the cost of the sanitary trunk sewer that will serve the property and thereby to provide a source of revenue to pay the City's portion of the cost of the Improvement and other proper costs of the system.

7. The Landowners will make a good faith effort to gather the signatures of the owners of certain single-family residences, located along the line of the proposed Improvement on Race Road and identified in Exhibit D, who will be required by the Lorain County Health Department to connect to the City's sanitary sewer system upon completion of the Improvement due to their proximity thereto, to the Petition, by agreeing to hold those owners harmless against their special assessments, to pay the cost of constructing a lateral and the cost of abandoning the existing septic tanks' serving those residences. The assessment for each residence affected by this paragraph shall be limited to a parcel of land with 100 feet of road frontage and 200 feet of depth upon which the residence is located.

8. City will not cause the assessments for the Improvement to be extended upon the tax duplicate until the fifth calendar year following the year in which the City first issues bond anticipation notes or otherwise incurs an obligation for the repayment of borrowed money in anticipation of the collection of the assessments for the Improvement. Interest on such notes or other obligations payable prior to the collection of the assessments shall be capitalized and included as a part of the cost of the Improvement to be assessed. The bonds to be issued to pay for the Improvement shall mature over a 20-year term.

9. The Landowners agree to indemnify the City for out-of-pocket engineering costs and expenses and real estate transfer fees the City will incur in the implementation of this Agreement if the Improvement is not constructed for any reason other than the City's breach of this Agreement. The indemnity section provided for in this Agreement only applies to the items identified above and specifically does not apply to engineering services provided by the City's engineering department or its employees nor any legal fees or expenses incurred by the City either through its Law Director, special counsel or any other counsel.

The Landowners will procure and pay for engineering and related services for Phases A through C of the "Mainline Trunk Sewer" Improvement ("the Engineering Services") as detailed in KE. McCartney & Associates, Inc.'s proposal dated September 15, 1999, and attached hereto as Exhibit E. The Landowners shall pay for the Engineering Services, which may be provided by K.E. McCartney & Associates, Inc. or other engineering firm, as well as any and all transaction costs for this Agreement on a pro rata basis, based on acres included within the Petition.

Upon the authorization and issuance of bond anticipation notes, the Landowners shall be reimbursed for the cost of the Engineering Services, transaction costs and real estate transfer fees from said bond anticipation notes. If the Improvement is not constructed pursuant to this Agreement, the Landowners shall retain all ownership and rights to any and all plans, profiles and specifications created by the Engineering Services for the Improvement and the City will assign all of its rights to, or to obtain or purchase the engineering plans, profiles and specifications owned by the County of Lorain and used by K.E. McCartney & Associates, Inc. or others to provide the Engineering Services.

10. The City has adopted a Planned Community Development ("PCD") ordinance, in the form attached hereto as Exhibit F, creating a new zoning category and specifying, among other matters, planned developments with open space.

11. The City understands and acknowledges that the Landowners' offer to consent to assessments for the cost of constructing the Improvement is based upon the Landowners' intention to develop the assessed properties for residential, recreational, commercial and industrial uses. The City further understands and acknowledges that the development of the assessed properties will be completed over a 10-15 year period.

Accordingly and in order to provide the regulatory stability necessary to undertake and complete such a long term development, the City agrees that the Landowners' rights and obligations under the City's Building Code and Zoning Ordinances, including the PCD ordinance referenced herein, shall vest at the time of City Council's approval of the preliminary PCD plan for each of the respective landowners. The City agrees to cooperate and expedite approvals in an orderly manner.

12. Contingent upon FJD and Forest City receiving final approval, including expiration of referendum periods and conclusion of all litigation, for PCD's for the land they are including in their petitions, FJD and Forest City will, upon request and acceptance by the City and only to the extent they contemporaneously own lands, donate an 80' right-of-way (hereinafter ' which will be dedicated to the City's public use as a street through the properties of said landowners. Similar to the route of the Improvement,. the Right-of-Way shall be on a line running generally from the northern corporate line of the City to the State Route 10 interchange near Chestnut Ridge Road and shall connect at or close to the northerly and southerly termini of Race Road. If FJD and Forest City do not receive approval for the PCD's as described herein, they will only donate a 60' Right-of-Way.

13. If requested by the City and contingent upon FJD and Forest City receiving final approval, including expiration of referendum periods and conclusion of all litigation, for PCD's for the land they are including in their petitions, FD and Forest City will agree to be voluntarily assessed for or will construct, or contribute to the City the cost of constructing, in phases as their projects are developed, a 2-lane collector street in the Right-of-Way. A 2-lane collector Street is defined herein as follows: two 13-foot lanes measuring back to back of curbs.

14. Beckett, to the extent it owns land at the time of the donation of the Right-of-Way, will contribute or grant an easement for land adjacent to the existing Race Road right-of-way to expand said right-of-way to a total of 80 feet in width.

15. The City retains the option to construct a roadway, larger than a 2-lane collector street, in the Right- ofWay. The Landowners, however, will have no obligation to construct said roadway or to contribute to the cost of construction of same beyond the contributions defined in paragraphs 12, 13 and 14.

16. All of the parties to this Agreement shall use their best efforts and cooperate to commence construction of the Improvement no later than April 1, 2001 or within 15 days after City obtains EPA approval for the Improvement, whichever is later. In the event the City has not entered into a contract for the construction of the Improvement on or before April 1, 2001 or within 15 days after City obtains EPA approval for the Improvement, Forest City and FJD may immediately proceed to construct the first 3,600 feet of the Improvement as described above at their own expense. To further facilitate construction of the first 3600 feet, Forest City will, upon execution of this Agreement, grant to the City an easement for said sewer.

If for any reason the construction of the proposed Improvement does not go as envisioned in this Agreement, but the first 3,600 feet of the Improvement is constructed by FJD and Forest City, the City agrees to use its best efforts to construct the remainder of said Improvement on an assessment basis LANDOWNERS: R. W. BECKETT CO., FOREST CITY LAND GROUP, FJD PROPERTIES, LLC (Frank J. Dettore, Manager), CITY OF NORTH RIDGEVILLE: (Deanna L. Hill, Mayor ), President of Council

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Page Updated Fri Oct 1, 2004 11:09pm EDT