Final Version

Page 1 of 12

ESCROW AGREEMENT

This Escrow Agreement (herein “Agreement) entered into on the ________ day of _________________20___ by and among the University of Cincinnati (herein “Owner”), a State University created and existing under the laws of the State of Ohio; and _____________________________________________________________ (herein “Contractor”, a Corporation organized and existing under the laws of the State of Ohio; and PNC Bank, National Association (herein “Escrow Agent”), a National Banking Association, all being duly authorized to execute and deliver this Agreement.

WITNESSETH:

WHEREAS, Owner and Contractor have heretofore entered into that certain contract (or contracts) described in Schedule “A” hereto with respect to the project (or projects) therein described (such contract or contracts, as hereafter amended or supplemented, being referred to as “Contract”); and

WHEREAS, Section 153.63 of the Ohio Revised Code, (a) requires creation of an escrow account into which shall be deposited Contract payments retained by the Owner in accordance with Sections 153.12 and 153.13 of the Ohio Revised Code (herein “Retained Amounts”), and (b) imposes certain other requirements with respect to the time of payment of Retained Amounts, the terms of this Agreement, the settlement of disputes, and other matters; and

WHEREAS, Owner, Contractor and Escrow Agent intend this Agreement to comply in all respects with Section 153.63, and hereby agree that this Agreement shall be so construed as to further the purpose and intent of said law;

NOW, THEREFORE, OWNER, CONTRACTOR AND ESCROW AGENT, INTENDING TO BE LEGALLY BOUND, do hereby agree as follows:

Section 1. Deposit of Retained Amounts. Escrow Agent hereby acknowledges deposit with it of the cash described in Schedule “B” hereto (herein “Escrowed Funds”). Owner and Contractor hereby acknowledge and affirm that such deposit represents the full sum of Retained Amounts lawfully retained by Owner to date, pursuant to Section 153.12 of the Ohio Revised Code, with respect to the Contract.

Section 2. Investment or Reinvestment of Escrowed Funds. Until payment of the Escrowed Funds, including interest thereon, the Escrow Agent shall invest and reinvest the Escrowed Funds, and, the interest earned thereon, in the following described savings accounts or obligations:

(a) Savings accounts maintained with the Escrow Agent, PNC Money Market Deposit Account (“MMDA”), or with any bank or domestic building and loan association which would be eligible to become a public depository under Section 135.03 of the Ohio Revised Code.

All earnings or other income received from investment and reinvestment of the Escrowed Funds, if any, incurred on such investment and reinvestment, shall be added to the Escrowed Funds and shall be disbursed as part of the Escrowed Funds in accordance with Section 3 hereof. Owner and Contractor agree that, subject to the terms and conditions of this Escrow Agreement, the owner of the funds held in the Escrow Account is Contractor for all tax purposes and the Escrow Agent shall report to the Internal Revenue Service (“IRS”), as of each calendar year-end, all income earned from the investment

Final Version

Page 2 of 12

of any sum held in the Escrow Account as the income of Contractor for purposes of the Code and applicable state and local income tax law. The Escrow Agent is authorized and directed to report all interest and other income earned on the Escrow Funds in accordance with the IRS Form W-9 or W-8 provided to the Escrow Agent by Contractor. Contractor shall report all interest or other income, if any, that is earned on the Escrow Funds as income of Contractor in the taxable year or years in which such income is properly includable in Contractor’s gross income and shall pay any and all taxes attributable thereto.

Section 3. Disbursement of Escrowed Funds. The Escrowed Funds, including interest earned thereon that shall be accumulated in the escrow account, after expiration of such reasonable time (not exceeding thirty days) as shall be required to permit orderly liquidation of any investments thereof made in accordance with Section 2 hereof, shall be held by the Escrow Agent and not disbursed until one of the following events has occurred, in which event the Escrow Agent is authorized and directed to disburse the Escrowed Funds, or a portion thereof, in the manner indicated:

(a) Receipt by Escrow Agent of notice (“Joint Written Direction”) from Owner and Contractor that the Escrowed Funds are to be paid to Contractor. Joint Written Direction shall mean a written notification, in the form of Exhibit B hereto and signed by an Authorized Representative of each of Owner and Contractor (a list of whom are provided in Exhibit A-1 and Exhibit A-2).

(b) Receipt by Escrow Agent of a certified judgment of the Court of Claims created by Section 2743.03 of the Ohio Revised Code; provided that in the case of (i), the Escrow Agent shall also receive the written waivers of the Owner and Contractor of their respective rights under Section 2711.09 of the Ohio Revised Code, unless the statutory period for exercise of such rights shall have elapsed, and in the case of (ii), the Escrow Agent shall also receive a waiver or waivers of the Owner's or Contractor’s right or rights of appeal in form and substance satisfactory to Escrow Agent, unless the period for appeal shall have elapsed; or (iii) a certified final judgment from a court of competent jurisdiction.

(c) As soon as practicable after receipt of a written certificate signed by the Owner substantially in the form attached hereto as Exhibit C (an “Owner Certificate”) stating that (i) a Contractor is in default or has breached its contract with the Owner and has not cured such violation to the Owners’ satisfaction within thirty (30) days of written notice of the default or breach to such Contractor, (ii) a Contractor cannot be located after reasonable efforts by the Owner or (iii) all work related to the Project has been completed and any Escrowed Funds remaining in the Escrow Accounts are to be released, and in each case, requesting the Escrowed Funds be returned to the Owner. Once such Escrowed Funds are returned to the Owner pursuant to such request, the Escrow Agent shall have no duty or responsibility regarding such Escrowed Funds. Within thirty (30) days of receipt by the Escrow Agent of a Completion Certificate, an Order or an Owner Certificate, the Escrow Agent shall pay the specified amount of Escrowed Funds to the person so indicated in such Completion Certificate, Order or Owner Certificate. In no event shall the Escrow Agent be required to take any action under this Section 3, until the Escrow Agent shall have received proper written notification by an Authorized Representative in the form of a Completion Certificate, an Order or an Owner Certificate.

Section 4. Compensation of Escrow Agent. Escrow Agent shall receive a fee for its services hereunder an initial one-time fee of $250.00 payable on the date hereof (which shall cover, among other things, all legal

Final Version

Page 3 of 12

and other costs incurred by the Escrow Agent on or prior to the date hereof). The Escrow Agent shall be entitled to reimburse itself from the Escrowed Funds for the one-time fee of $250.00. In addition, any other reasonable fees or expenses associated with Escrow Agent’s acceptance of, administration of, or performance under the Escrow Agreement including without limitation reasonable attorneys’ fees and costs incurred by it under this Agreement, otherwise than by reason of negligence or bad faith on the part of the Escrow Agent, such fees and costs shall be paid by Contractor to Escrow Agent on demand. The initial fee due the date hereof and any reimbursements which may become due in the future shall be payable by Contractor. In all cases, Escrow Agent shall make a good faith effort to collect such fees directly from the Contractor. The Escrow Agent shall have, and is hereby granted, a prior lien upon the Escrow Funds for any amount unpaid in regards to any such Escrow Funds which shall come due to the Contractor. Owner shall not become liable to Contractor for any fees retained by the Escrow Agent out of the Escrowed Funds.

Section 5. Escrow Agent’s Acceptance and Responsibilities: Indemnification by Contractor: Successor Escrow Agent. Escrow Agent accepts the duties imposed upon it by this Agreement, and agrees to perform said duties with ordinary prudence, subject to the following terms and conditions:

(a) Escrow Agent may rely, and shall be protected in acting or refraining from acting, upon any instrument furnished to it hereunder and believed by it to be genuine and believed by it to have been signed or presented by the appropriate party or parties (including without limitation, with respect to corporation, any instrument purporting to have been signed on its behalf by its president or any of its vice-presidents or its treasurer) Escrow Agent shall not be liable for any action taken (or any refraining from action) by it in good faith and in accordance with the opinion of such counsel.

(b) In performing its duties under this Escrow Agreement, or upon the claimed failure to perform its duties, the Escrow Agent shall have no liability except for the Escrow Agent’s willful misconduct or gross negligence. In no event shall the Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

(c) Contractor hereby agrees to indemnify and hold Escrow Agent and each of the Escrow Agent’s officers, directors, agents and employees (the “Escrow Indemnified Parties”) harmless against any loss, liability or expense incurred, without negligence or bad faith on its part, in connection with any claim arising out of or in connection with its entering into this Agreement and carrying out its duties hereunder, including the cost of defending itself against such claim. The provisions of this section shall survive the termination of this Escrow Agreement and any resignation or removal of the Escrow Agent.

(d) Escrow Agent’s accounts relative to the Escrowed Funds and interest thereon shall be subject to audit by the Auditor of the State of Ohio and shall be made available for such purpose during regular business hours.

(e) By thirty days’ notice to Owner and Contractor, Escrow Agent may resign as such hereunder, and in such event shall, upon demand, deliver the Escrowed Funds and interest earned thereon to a successor escrow agent designated by Owner. In default of such designation within thirty days after such notice is received by Owner, shall deliver the Escrowed Funds and interest thereon to Owner. Upon the delivery of the Escrow Funds to the Owner or successor escrow agent, the duties of the resigning Escrow Agent shall thereupon in all respects terminate, and the Escrow Agent shall be released and discharged from all further obligations hereunder.

Final Version

Page 4 of 12

(f) The Escrow Agent shall confirm each funds transfer instruction received in the name of a party by telephone call-back to an Authorize Representative specified on Exhibit A-1 or Exhibit A-2 at the telephone number specified for such authorized person on Exhibit A-1 or Exhibit A-2, as applicable (“Authorized Representative”). Once delivered to the Escrow Agent, Exhibit A-1 or Exhibit A-2 may be revised or rescinded only by a writing signed by an Authorized Representative of the applicable party. Such revisions or rescissions shall be effective only after actual receipt and following such period of time as may be necessary to afford the Escrow Agent a reasonable opportunity to act on it. If a revised Exhibit A-1 or Exhibit A-2 or a rescission of an existing Exhibit A-1or Exhibit A-2 is delivered to the Escrow Agent by an entity that is a successor-in-interest to such party, such document shall be accompanied by additional documentation satisfactory to the Escrow Agent showing that such entity has succeeded to the rights and responsibilities of the applicable authorized representative of each of Owner and Contractor under this Escrow Agreement. Owner and Contractor understand that the Escrow Agent’s inability to receive or confirm funds transfer instructions pursuant to the above security procedure may result in a delay in accomplishing such funds transfer, and agree that the Escrow Agent shall not be liable for any loss caused by any such delay.

Section 6. Notices. It shall be sufficient service or giving of any notice, request, complaint, demand, or other paper if the same shall be duly deposited in electronic mail (with confirmation from recipient), addressed as follows:

(a) To Owner:

University of Cincinnati Office of the Treasurer

PO Box 210641 Cincinnati, OH 45221-0641 Attention: Gary Hunt, Treasurer Email: huntgy@ucmail.uc.edu and

University of Cincinnati Capital Finance and Reporting PO Box 210637 Cincinnati, OH 45221-0637 Attention: Martha Morse, Director Email: morsema@ucmail.uc.edu

(b) To Contractor:

(Tax I. D. # ______________________________)

Name: ____________________________________________________

Address: __________________________________________________

__________________________________________________

__________________________________________________

Final Version

Page 5 of 12

Attention: _________________________________________________ Email: [ ]

(a) To Escrow Agent:

PNC Bank, National Association IDS Building 80 South Eighth Street, Suite 3715 Minneapolis MN 55402 Attention: James Baughman Email: james.baughman@pnc.com and pncpaidadmin@pnc.com Telephone: 412-768-7010

Duplicate copies of each notice, certificate or other communication given hereunder by Owner, Contractor or Escrow Agent to one of the others shall also be given to the other. The Owner, Contractor or Escrow Agent may, by notice, given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent, but no notice directed to any one such entity shall thereby be required to be sent to more than two addresses. All notices shall be effective upon receipt; provided, however any instruction, direction, approval, consent, or similar communication from an escrow party with respect to the Escrow Funds (“Instruction”) given to Escrow Agent by electronic mail shall not be effective, and the Escrow Agent shall not be obligated to act upon such Instruction, until the Escrow Agent has confirmed to the sending escrow party that the Instruction has been received and accepted by the Escrow Agent. The parties acknowledges that there are certain security, corruption, transmission error and access availability risks associated with using open networks such as the internet and Parties assumes such risks and acknowledges that the security procedures set forth herein are commercially reasonable.

Section 7. Mechanic’s liens: Additional Deposits with Escrow Agent. In the event that one or more sworn and itemized statements are filed with Owner pursuant to Section 1311.26 of the Ohio Revised Code, with the result that Section 1311.28 of the Ohio Revised Code applies, but the Escrowed Funds shall have been fully disbursed by Escrow Agent, neither the State of Ohio, OWNER nor Escrow Agent shall have any liability with respect thereto otherwise than pursuant to mechanic's lien laws of general application.

Should any such filing be made by Contractor, Owner reserves the right to deposit funds detained by reason of such filing with Escrow Agent hereunder, which fund shall (a) be invested and reinvested in the same manner as provided for Escrow Funds under Section 2 hereof, and (b) be released at such times, in such amounts, and to such persons as may be ordered by a court of competent jurisdiction or by agreement between Contractor, Owner, and lien Claimant.

Section 8. This agreement is governed by and in accordance with the laws of the State of Ohio.

Section 9. Counterparts: This Escrow Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

[Signature Page Follows]

Final Version

Page 7 of 12

Schedule “A”

Project Number: ________________________________________________

Project Name: ________________________________________________

Contractor: ________________________________________________

Select Type of Contract:

General

HVAC

Plumbing

Electrical

Fire Protection

Other: _________________________________________________________

Final Version

Page 8 of 12

Schedule “B”

The MMDA is an interest bearing account and is insured by the Federal Deposit Insurance Corporation, to the standard maximum deposit insurance amount, (including principal and interest), for all deposits held in the same ownership capacity with the Escrow Agent. The MMDA has monthly withdrawal/disbursement restrictions of a maximum of six (6) per month and in the event the maximum is reached in any one calendar month, the funds will be moved to a PNC non-interest bearing deposit option until the beginning of the following month. Deposits shall in all instances be subject to the Escrow Agent’s standard funds availability policy.

Final Version

Page 9 of 12

EXHIBIT A-1

Certificate of Incumbency (List of Authorized Representatives of Owner)

Client Name: University of Cincinnati

As an Authorized Officer of the above referenced entity, I hereby certify that each person listed below is an authorized signor for such entity and is authorized to provide direction and initiate or confirm transactions, including funds transfer instructions, on behalf of the above referenced entity, and that the title, signature and contact number appearing beside each name is true and correct.

Name Title Email Address Signature Contact Number

IN WITNESS WHEREOF, this certificate has been executed by a duly authorized officer on:

Date

By: __________________________

Its: Authorized Officer

Final Version

Page 10 of 12

EXHIBIT A-2

Certificate of Incumbency (List of Authorized Representatives of Contractor)

Client Name: [ ]

As an Authorized Officer of the above referenced entity, I hereby certify that each person listed below is an authorized signor for such entity and is authorized to provide direction and initiate or confirm transactions, including funds transfer instructions, on behalf of the above referenced entity, and that the title, signature and contact number appearing beside each name is true and correct.

Name Title Email Address Signature Contact Number

IN WITNESS WHEREOF, this certificate has been executed by a duly authorized officer on:

Date

By: __________________________

Its: Authorized Officer

Final Version

Page 11 of 12

EXHIBIT B

JOINT WRITTEN DIRECTION

[INSERT DATE]

Pursuant to that certain Escrow Agreement dated as of [●], 20[__], by and among University of Cincinnati (“Owner”), (the “Contractor”), and PNC Bank, National Association, a national banking association (the “Escrow Agent”), Owner and the Contractor hereby instruct the Escrow Agent to release funds from the Escrowed Fund in accordance with the following instructions:

$ [_______________] to: Wire Instructions: Account Name: _______________________ Account Number: _______________________ Bank Name: _______________________ Bank ABA Number: _______________________ Bank Address: _______________________ For credit to: _______________________ Special Instructions: _______________________ Bank Check: Payee Name: _______________________ Mailing Address: _______________________

$ [_______________] to: Wire Instructions: Account Name: _______________________ Account Number: _______________________ Bank Name: _______________________ Bank ABA Number: _______________________ Bank Address: _______________________ For credit to: _______________________ Special Instructions: _______________________ Bank Check: Payee Name: _______________________ Mailing Address: _______________________

IN WITNESS WHEREOF, the parties hereto have caused this Joint Written Direction to be executed as of the date first above written.

OWNER By: ____________________________ Name: ____________________________ Title: ____________________________

CONTRACTOR By: ____________________________ Name: ____________________________ Title: ____________________________

Final Version

Page 12 of 12

EXHIBIT C

OWNER CERTIFICATE

[Date]

PNC Bank 201 East 5th Street, Loc. B1-BM01-03-3 Cincinnati, OH 45202 Attention: : James Baughman

Re: Owner Certificate and Disbursement Request

The undersigned, an Authorized Representative of the University of Cincinnati (the “Owner”) hereby certifies, pursuant to Section 4(a) of that certain Escrow Agreement (the “Escrow Agreement”), dated __________ ___, 20__, by and among PNC Bank, as escrow agent (the “Escrow Agent”), the Owner, and [_______________] (the “Contractor”), that the Contractor [is in default or has breached its contract with the Owner and has not cured such violation to the Owners’ satisfaction within thirty (30) days of written notice of the default or breach to such Contractor] [cannot be located after reasonable efforts by the Owner]. As a result of this [default or breach by such Contractor] [failure to locate such Contractor], the undersigned on behalf of the Owner hereby requests that the Escrow Agent pay from the Escrowed Funds held under the Escrow Agreement the amount(s) set forth below to the person(s) designated below as payee and directs the Escrow Agent to disburse the amount(s) set forth below and in the manner set forth below. Capitalized terms used but not defined in this Certificate shall have the meanings ascribed thereto in the Escrow Agreement.

Disbursement to: [________________]

Disbursement Amount: [________________]

Wiring Instructions: [________________]

IN WITNESS WHEREOF, the undersigned as an Authorized Representative of Owner has caused this Certificate to be executed and delivered on this ____ day of ________, 20___.

OWNER:

UNIVERSITY OF CINCINNATI

By: Name: Title: