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HomeMy WebLinkAboutOrdinance 070-15RECORD OF ORDINANCES ayton Legal Blank, Inc. Form No. 30043 70 -15 Ordinance No. Passed .20 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST AMENDMENT TO AN ASSIGNMENT OF A REAL PROPERTY PURCHASE AND SALE AGREEMENT ENTERED INTO BETWEEN THE CITY OF DUBLIN AND COMMERCIAL SITE ACQUISITIONS, INC. (- CASTO -) VIA ORDINANCE 11 -14. WHEREAS, the City of Dublin ( "Dublin" or the "City ") and Commercial Site Acquisitions, Inc. ( "Casto ") are Parties to that certain Real Property Purchase and Sale Agreement dated March 14, 2 014, pursuant to which Casto agreed to assign to Dublin and Dublin agreed to assume from Casto rights and obligations to purchase certain real property owned by a third party that is identified in the Agreement as the "Property"; and WHEREAS, the Agreement also contemplates that, if and when Dublin purchases the Property, Casto will have the right to repurchase that portion of the Property that is identified in the Agreement as the "Development Parcel ", which is generally located to the north of the proposed right -of -way for the new public streets to be known as John Shields Parkway and adjacent public greenway; and WHEREAS, Dublin has purchased the Property and is now the owner of said real estate; and WHEREAS, since the effective date of the Agreement, the City has made further progress in finalizing the alignment of John Shields Parkway and, as a result, it has been determined that there will be land located on the Property to the south of the right -of -way for John Shields Parkway and adjacent public greenway that will be suitable for development; and WHEREAS, Casto desires to expand its right to purchase portions of the Property so that this right provides the ability to purchase all of said land that is located on both the north side and south side of the right -of -way for John Shields Parkway and adjacent public greenway; and WHEREAS, Dublin desires to provide this right to Casto on the terms and conditions set forth in a First Amendment to Real Property Purchase and Sale Agreement. NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of Ohio, of the elected members concurring that: Section 1. The City Manager is hereby authorized to execute all necessary amendment documentation, including but not limited to, a first amendment to real property purchase and sale agreement in substantially the same form as the one attached hereto as Exhibit "A," with changes not inconsistent with this Ordinance, not substantially adverse to the City, and which shall be approved by the City Manager and Finance Director as depicted in the attached Exhibit "A." 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. Section 2. This Council further hereby authorizes and directs the City Manager, the Director of Law, the Director of Finance, the Clerk of Council, or other appropriate officers of the City to take any other actions as may be appropriate to implement this Ordinance. Dayton Legal Blank, Inc. 70 -15 Ordinance No. RECORD OF ORDINANCES Page 2 of 2 Passed -20 Section 3. This Ordinance shall take effect in accordance with 4.04(b) of the Dublin Revised Charter. Passed this day of U 6 , 2015. J or — Presiding ffi er ATTEST: Clerk of Council VrorwoskFoddLC ATTORNEYS MEMORANDUM To: Dublin City Council Dana McDaniel, City Manager From: Terry D. Foegler, Director of Strategic Initiatives /Special Projects Philip K. Hartmann, Assistant Law Director Date: October 8, 2015 Re: Ord. 70 -15 - First Amendment to Real Estate Acquisition - Casto I. Project Background On November 25, 2013, Commercial Site Acquisitions, Inc., an Ohio corporation wholly owned by Casto Communities Management Inc. ( "Casto "), entered into a Real Estate Purchase and Sale Agreement (the "Agreement ") with Byers Realty LLC ( "Byers" for 10 acres, more or less, owned by Byers and located to the northwest of the intersection of Village Parkway and Cooper Drive in the City of Dublin (the "Property") for Four Million Six Hundred Thousand Dollars ($4,600,000.00). Subsequently, the City and Casto entered into talks regarding the City's potential interest in purchasing the Property, because the City's Community Plan and Thoroughfare Plan anticipated a future roadway (John Shields Parkway) on the center portion of the Property. On March 14, 2014, the City and Casto entered into an Assignment of the Agreement allowing the City to accept an assignment of Casto's rights and obligations, and to purchase the property from Byers under the same terms and conditions. The City has purchased the property and is now the owner. This acquisition facilitated the implementation of the City's Community and Thoroughfare Plans for the Bridge Street District, and is intended to be used for the extension of John Shields Parkway and its adjacent greenway. Since the acquisition the City has made further progress finalizing the alignment of John Shields Parkway and, as a result, has determined that there will be land located on the property to the south of the John Shields Parkway right -of -way and adjacent public greenway that will be suitable for development. Ordinance No. 70 -15 authorizes the City Manager to execute a First Amendment to the Assignment of the Agreement. This First Amendment provides Casto an expanded right to purchase all of the land that is located on both the north side and now not previously contemplated south side of the John Shields Parkway and adjacent public greenway. Memo re. Ord. 70 -15 — Casto — First Amendment to Real Estate Purchase October 8, 2015 Page 2 of 2 II. Action to be Authorized by Ordinance Ordinance No. 70 -15 would allow the City Manager to execute all necessary documentation to formally incorporate the First Amendment into the City Agreement with Casto. III. Recommendation Staff recommends approval of Ordinance No. 70 -15 at the second reading/public hearing on October 26, 2015. EXHIBIT A FIRST AMENDMENT TO REAL PROPERTY PURCHASE AND SALE AGREEMENT THIS FIRST AMENDMENT TO REAL PROPERTY PURCHASE AND SALE AGREEMENT (this "First Amendment") is made and entered into as of the last date of signature by a party below (the "First Amendment Effective Date "), by and between the CITY OF DUBLIN, OHIO, a municipal corporation ( "Dublin "), and COMMERCIAL SITE ACQUISITIONS, INC., an Ohio corporation ( "CSI"), under the circumstances summarized in the following recitals. Dublin and CSI hereinafter may be referred to individually as a "Party" or together as the "Parties." RECITALS: WHEREAS, Dublin and CSI are parties to that certain Real Property Purchase and Sale Agreement dated March 14, 2014, pursuant to which CSI agreed to assign to Dublin and Dublin agreed to assume from CSI rights and obligations to purchase certain real property owned by a third party that is identified in the Agreement as the "Property"; and WHEREAS, the Agreement also contemplates that, if and when Dublin purchases the Property, CSI will have the right to repurchase that portion of the Property that is identified in the Agreement as the "Development Parcel ", which is generally located to the north of the proposed right -of -way for the new public street to be known as John Shields Parkway; and WHEREAS, Dublin has purchased the Property and is now the owner of said real estate; and WHEREAS, since the effective date of the Agreement, the City has made further progress in finalizing the alignment of John Shields Parkway and, as a result, it has been determined that there will be land located on the Property to the south of the right -of -way for John Shields Parkway that will be suitable for development (and correspondingly less suitable development land north of the new right -of -way alignment); and WHEREAS, CSI therefore desires to expand its right to purchase portions of the Property so that this right provides the ability to purchase developable portions of said land that are located on both the north side and south side of the right -of -way for John Shields Parkway; and WHEREAS, Dublin desires to provide this right to CSI on the terms and conditions set forth in this First Amendment; and Page 1 of 11 EXHIBIT A WHEREAS, Dublin, by passage of Dublin City Council Ordinance No. on , 2015 (the "Authorizing Ordinance "), has determined that it is in the best interests of Dublin to execute this First Amendment. Now, THEREFORE, in consideration of the promises and covenants contained herein, the Parties hereto agree and obligate themselves as follows: 1. Definitions. Unless otherwise expressly provided in this First Amendment, all capitalized terms used in this First Amendment shall have the same meanings attributable to them as provided in the Agreement. 2. Replacement of Exhibit B. Exhibit B of the Agreement is hereby removed from the Agreement and shall be replaced with Revised Exhibit B, which is attached hereto and is incorporated into the Agreement by reference. All references to "Exhibit B" in the Agreement are hereby amended to read "Revised Exhibit B ". 3. Amendment of Section 1 of the Agreement. Section 1 of the Agreement is hereby amended as follows: a. New Defined Terms. The following defined terms shall be added to and become a part of Section 1 of the Agreement: i. "Northern Development Land" shall mean that portion of the Property that is located to the north of the future public right -of -way for John Shields Parkway and adjacent to public greenways generally depicted on Revised Exhibit B. The final acreage of the Northern Development Parcel shall be determined by the Parties and finally agreed to by the City in a Survey. ii. "Southern Development Land" shall mean that portion of the Property that is located to the south of the future public right -of -way for John Shields Parkway and the adjacent public greenway as generally depicted on Revised Exhibit B. The final acreage and configuration of the Southern Development Parcel shall be Page 2of11 EXHIBIT A determined by the Parties, based in part upon the development plans of CSI for this parcel, and finally agreed to by the City in a Survey. b. Amended Definition of the term "Closing Date'. The definition of the term "Closing Date" as provided in Section 1 of the Agreement is hereby revised to read as follows: " `Closing Date' means the date on which the Closing occurs, which shall be on a date that is identified and mutually agreed to by the Parties that in no event shall be later than December 31 ,2017." C. Amended Definition of the term "Development Parcel". The definition of the term "Development Parcel" as provided in Section 1 of the Agreement is hereby revised to read as follows: " `Development Parcel' means the Northern Development Land and the Southern Development Land." d. Amended Definition of the term "Purchase Price". The definition of the term "Purchase Price " as provided in Section 1 of the Agreement is hereby revised to read as follows: " `Purchase Price' means either: (1) the sum of money equal to the product of (a) Three Hundred Thousand and No /100 Dollars ($300,000), and (b) the number of acres contained within the Development Parcel, or (2) an amount lesser than the sum in (1) that is supported by an appraisal report to be obtained by CSI (at its sole cost and expense) and delivered to Dublin at least thirty (30) days prior to the Closing Date and which is prepared in anticipation of the purchase and agreed to by the Parties in consideration for the purchase of the Development Parcel, as detailed in Section 3.2 below." Page 3 of 11 EXHIBIT A 3. Amendment of Section 3.3 of the Agreement. Section 3.3 of the Agreement is hereby amended so that on and after the First Amendment Effective Date it will read as follows: "Section 3.3 Closing for the Development Parcel . The Closing shall be held on the Closing Date. On the Closing Date, the Title Company, as escrow /closing agent, shall be directed by Dublin and CSI to close the sale and conveyance of the Development Parcel from Dublin to CSI in escrow in accordance with the terms and conditions of an escrow letter acceptable to the Title Company, Dublin and CSI and which is consistent with the terms of this Agreement. (a) Dublin's Closing Deliveries of the Development Parcel. At least two (2) business days prior to the Closing Date, Dublin shall deliver (or cause the delivery of) the following items to the Title Company, as escrow /closing agent: (i) The Deed, duly executed and acknowledged in recordable form, so as to convey the Development Parcel to CSI; (ii) The closing statement relating to the sale and purchase of the Development Parcel, to be prepared by the Title Company, duly executed by Dublin; (iii) Mechanics' and materialmen's lien affidavit relating to the Development Parcel, executed by Dublin and acknowledged; (iv) Evidence of authority for the execution of all documents; and (v) Such other affidavits, certificates, resolutions and related materials that are required from Dublin hereunder or that are reasonably requested by the Title Company in connection with the Closing. (b) CSI's Deliveries of the Development Parcel. At least two (2) business days prior to the Closing Date, CSI shall deliver (or cause the delivery of) the following items to the Title Company, as escrow /closing agent: (i) The closing statement relating to the Development Property to be prepared by the Title Company, duly executed by CSI; (ii) Evidence of authority for the execution of all documents; Page 4 of 11 EXHIBIT A (iii) Evidence of recorded fee simple title to parcel number 273 - 008811 currently titled in the name of Thomas Family L.P. directly to the north of the Development Parcel; and (iv.) Such other affidavits, certificates, resolutions and related materials that are required from CSI hereunder or that are reasonably requested by the Title Company in connection with the Closing. (c) Disbursements. On the Closing Date of the Development Parcel and at such time as the Title Company (x) is in possession of all items required to be delivered pursuant to subsections (a) and (b) hereinabove, and (y) is prepared to issue the Owner's Policy to CSI in accordance with the terms and conditions of this Agreement and the Commitment, the Title Company, as escrow /closing agent, shall take the following actions: (i) Deliver to Dublin the Purchase Price and all other amounts due to Dublin hereunder, net of any amounts to be paid by Dublin in connection with the Closing and taking into the account any proration of real property taxes, as set forth in the closing statement; (ii) Deliver the Deed to CSI and then record the same with the Office of the Recorder of Franklin County, Ohio (the "Recorder "); (iii) Disburse all other funds to be disbursed and distribute all other documents to be distributed in accordance with the terms and provisions of this Agreement. 4. Amendment of Section 3.5 of the Agreement. Section 3.5 of the Agreement is hereby amended so that on and after the First Amendment Effective Date it will read as follows: "Section 3.5 Possession; Condition of Development Parcel. Possession of the Development Parcel shall be provided by Dublin to CSI at the Closing, free and clear of all tenancies and/or rights of possession by third parties, with the exception of COTA which may be lawfully using the Development Parcel as a temporary Park and Ride for a time certain to be defined at the Closing and further provided that the terms of COTA's use and occupancy of the Development Parcel following the Closing shall be acceptable to CSI in its sole discretion, provided that closing occurs after September 30, 2016. Upon the request of CSI, Dublin shall deliver to CSI a current copy of any written lease or other instrument to which it is a party with COTA that Page 5 of 11 EXHIBIT A provides COTA with the right of use and possession of the Development Parcel. At the Closing, CSI will acknowledge in an affidavit that it has had, in accordance with Article V below, an adequate and sufficient opportunity to inspect the Development Parcel prior to Closing, and that it accepts the Development Parcel in an "AS IS" condition subject to its termination rights as set forth in Article V, it being understood that no representations or warranties have been or will be made to CSI with respect to the condition of the Development Parcel or its fitness for the development, construction, and/or operation of the Intended Use." 4. Amendment of Section 6.4 of the Agreement. Section 6.4 of the Agreement is hereby amended so that on and after the First Amendment Effective Date it will read as follows: "Section 6.4 Lot Splits or Other Actions. If necessary, in order to facilitate the transfer of ownership of the Development Parcel to CSI, an application to split and/or subdivide the Development Parcel from the Property shall be required so that following the Closing the Northern Development Land and the Southern Development Land each will be contained within its own tax parcel that is separate from the Property. Dublin shall be required to file and process applications to subdivide each of the Northern Development Land and the Southern Development Land into their own tax parcels at no expense to CSI. Dublin shall make reasonable good faith efforts to approve the lot split/minor subdivision applications at least five (5) business days prior to Closing. The lot splits shall be effectuated by the delivery of the Deed by Dublin to CSI and the recording of the Deed with the Recorder. Dublin's failure to timely approve the lot split applications contemplated in this paragraph shall vest in CSI the right to terminate the Agreement to purchase the Development Parcel." 5. Amendment of Section 8.2(d) of the Agreement. Section 8.2(d) of the Agreement is hereby amended so that on and after the First Amendment Effective Date it will read as follows: "(d) Receipt of evidence from Dublin that each of the Northern Development Land and Southern Development Land will be contained within a tax parcel separate and apart from the remainder of the Property immediately following Closing;" Page 6ofII EXHIBIT A 6. No Other Amendments: Unless expressly set forth in this First Amendment, no other terms or provisions of the Agreement are being altered, changed, or revised by the execution hereof. 7. Counterparts: This First Amendment may be executed in any number of counterparts and each of such counterparts shall, for all purposes, be deemed to be an original, and all such counterparts shall together constitute but one and the same document. Each of Dublin and CSI shall be permitted to exchange electronic copies of this First Amendment with its authorized signature in pdf form, and signatures found on such electronic copies shall be deemed to be original signatures. The executed version of this First Amendment may be delivered by each party to the other by electronic mail without the formalities of the notice requirements found in the Agreement. (SIGNATURE PAGES TO FOLLOW Page 7ofII EXHIBIT A IN WITNESS WHEREOF, Dublin has caused this First Amendment to be executed by its duly authorized representatives on the dates written below Approved as to Form: By: Printed: Title: Date: CITY OF DUBLIN, OHIO L-02 Printed: Title: City Manager Date: Printed: Title: Director of Finance Date: Page 8 of 11 EXHIBIT A IN WITNESS WHEREOF, CSI has caused this First Amendment to be executed by its duly authorized representative on the date written below. COMMERCIAL SITE ACQUISITIONS, INC. Printed: Title: Date: Page 9 of 11 EXHIBIT A FISCAL OFFICER'S CERTIFICATE The undersigned, Director of Finance of the City of Dublin, Ohio under the foregoing Agreement, certifies hereby that the moneys required to meet the obligations of the City during Fiscal Year 2015 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 Sections 5705.41 and 5705.44, Ohio Revised Code. Dated: , 2015 Printed: Director of Finance City of Dublin, Ohio Page 10 of 11 0127219.0608226 4839 - 399949850 EXHIBIT A REVISED EXHIBIT B Page 11 of 11 Revised Exhibit B • The depiction in revised Exhibit B is not drawn to scale and is meant only as an illustration to show the site and the approximate locations of the areas in question.