21-05 Ordinance RECORD OF ORDINANCES
Dayton Legal Blank, Inc. Form No. 30043
21-OS Pissed 24
Ordinance No.
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER
INTO AN ASSIGNMENT OF REAL ESTATE PURCHASE
AGREEMENT WITH DUKE CONSTRUCTION LIMITED ~
PARTNERSHIP FOR THE PURPOSE OF ACQUIRING A 74 PLUS OR
MINUS ACRE TRACT OF LAND AT THE SOUTHWEST CORNER
~ AD APPROPRIATING
OF EITERMAN ROAD AND S.R.16Lr~ST R~ ,
FUNDS THEREFOR, AND DECLARING AN EMERGENCY.
WHEREAS, a goal of Dublin City Council is to acquire land for continued development
it • and
within the C
Y
WHEREAS, the City desires to enter into an Assignment of Real Estate Purchase Agreement
to purchase a 74 acre, more or less, tract of land, located south of Post Road and west of
rman Road for continued develo ment within. the City for $4,510,000, with $3,860,000 to
Erte P
on earlier of a the sale of the
id u
be paid at the closing and the balance of $650,000 to be pa p O
roe and b the date of which is 36 months after the closing; and
P P rh'
WHEREAS, the aforementioned objectives will require the City of Dublin to obtain a fee
simple interest in the 74 acre, more or less, tract of land, located south of Post Road and west
f Ohio as
to o
' s of Franklin and Union Sta ,
'n ounhe ,
n Road Ci of Dubh C
of Etterma ty ,
described in the attached Exhibit "A"; and
WHEREAS, it is necessary to amend the annual appropriations ordinance to provide fiznding
authorization for the acquisition of the property.
NOW, HEREFORE, 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 an Assignment of Real
i
Estate Purchase Agreement and any necessary closing documents related to the acquisition of
the 74 acre, more or less, tract of land and paying any related costs.
Section 2. There be advanced from the General Fund the amount of Three Million Eight
Hundred Sixty Thousand Dollars ($3,860,000.00) to the Land Acquisition Fund. This j
advance is to be reimbursed from proceeds of a fizttire debt issue.
Section 3. There be appropriated in the Land Acquisition Fund the amount of Three
Dollars 3 860 000.00 to account 445-0314-780-
Thousand $
ix
Hundred S )
'ineih
ty
Mill o
g
2510, for the purchase of acquiring the 74 acre, more or less, tract of land and paying any
related acquisition costs.
Section 4. This Ordinance is declared to be an emergency measure for the immediate
eace health safet or welfare and for the fizrther reason of
I p
reservation of the ublic .y ,
P
P,
executing the Assignment of Real Estate Purchase Agreement; therefore, this Ordinance
shall take effect and be m force tmmedtately upon its passage.
' da of Z ~ 2005.
/SIC
Passed this f ,
Y
i
I
Mayor -Presiding Officer II
ATTEST:
h reb certif that co ies of this
I e P
Y Y
Clerk of Council Ordinance/Resolution were posted in the'
cordance with Section
City of Dublin in ac
vised Code.
731.25 of the Ohio Re
D p ty Clerk of Council, Dublin, Ohio ~i
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City of Dublin Ordinance 2'I -05
Land Use and Eiterman i Posf-161 N
Long Range P{arming 74 Acres Feet
0 370 740
ASSIGNMENT OF REAL ESTATE PURCHASE AGREEMENT
For and in consideration of the mutual promises and agreements contained herein, the
undersigned, DUKE CONSTRUCTION LIMITED PARTNERSHIP, an Indiana limited
partnership ("Assignor"), hereby assigns to the CITE' OF DUBLIN, OHIO, a municipal
corporation ("Assignee"), all of its right, title and interest in and to that certain Real Estate
Purchase Agreement by and between Franklin-Union Real Estate LLC ("Seller") and Duke
Realty Ohio ("DRO") dated August 2, 2004, as amended by instruments dated as of December
21, 2004, and March 9, respectively (collectively, the "A€;reement"), and assigned to Assignor by
DRO by instrument dated ,for the purchase and sale of certain real property
containing approximately 74.503 acres located south of Post Road and west of Eiterman Road in
the City of Dublin, Franklin and Union Counties, Ohio (tlie "Property"), which Property is legally
described on Exhibit "A" attached hereto and hereby made a part hereof, subject to the
following terms and conditions:
1. Assignee hereby agrees, effective as of the date hereof, to assume, perform and
be responsible for all of Assignor's rights and obligations as "Buyer" under the Agreement, and
Assignor shall, except as otherwise provided herein, have no further liability therefor, and
Assignee hereby agrees to indemnify and hold Assignor harmless from and against any claims,
losses, damages, expenses (including, but not limited to reasonable attorneys' fees) or other
liabilities arising out of the Agreement and relating to events or circumstances occurring on or
after the date hereof. Assignor hereby agrees to indemnify and hold Assignee harmless from and
against any claims, losses, damages expenses (including, but not limited to reasonable attorneys'
fees) or other liabilities arising out of the inaccuracy, in any material respect, of Assignor's
warranties or representations hereunder or under the Agreement and/or any claim due to
Assignor's material failure to abide by any material tear} or condition of the Agreement prior to
the date hereof.
{H0525955.1 }
2. For and in consideration of the assignment made herein, Assignee shall pay to
Assignor an amount equal to One Million Four Hundred 7'en Thousand Dollars ($1,410,000) (the
"Assignment Consideration") payable as follows:
(i) Seven Hundred Sixty Thousand Dollars ($760,000) shall be due and
payable to Assignor at the closing of the purchase of the Property under the Agreement
and delivery of title to the Property to Assignee (the "Closing Date"). Assignee
acknowledges that the closing under the Agreement is required to take place on or
before March 31, 2005 and and agrees that Assignee shall not take any action to delay
the closing to a later date, or fail to take any reasonable action to prevent any delay in
the closing, without Assignor's consent. Assignee acknowledges that the purchase price
of the Property under the Agreement is an amount equal to $3,100,000 (the "Agreement
Consideration"), of which $10,000 has already been paid in the form of the Deposit (as
defined in the Agreement), and that an additional deposit of an amount equal to
$145,000 shall be due and payable to Seller under the Agreement on or before March
29, 2005. Assignor does hereby assign to Assi€mee all right, title and interest in and to
the Deposit; and
(ii) The balance, being an amount equal to Six Hundred Fifty Thousand
Dollars ($650,000), shall be due and payable in one installment, without interest if
timely paid, due not later than the earlier of (i) the date which is thirty-six (36) months
after the Closing Date, or (ii) the date Assignee; sells and conveys all or any portion of
the Property to anon-governmental entity. Assignee's obligation to make such payment
shall be secured by a first mortgage lien on the Property granted by Assignee to
Assignor on the Closing Date. The mortgage instrument shall be in the form attached
hereto as Exhibit "B" and made a part hereof. Upon the payment of the Assignment
Consideration to Assignor, Assignor shall simultaneously execute and deliver an
{HOSZS9ss.~ t2
instrument in recordable form to evidence Assignee's satisfaction of said mortgage. In
the event of any default in the prompt and full payment of the foregoing amount,
interest shall accrue thereon and be compounded annually at the then effective prime rate
as published from time to time in the "Money Rates" section of The Wall Street Journal (or
any successor publication thereto) plus two percent (2%) per annum from the due date
thereof until paid in full.
3. Assignee's obligations hereunder shall be conditioned on and subject to
Assignee's reasonable satisfaction with its due diligence review of the Property and obtaining
Dublin City Council approval of this Assignment all prior to the dates set forth hereinbelow.
Assignor shall cooperate with Assignee in conducting Assignee's due diligence review and shall
immediately provide Assignee with copies of all material due diligence materials received by
Assignor in the course of its investigation of the Property, which materials shall include but not
be limited to a current ALTA survey and a Phase I Environmental Site Assessment of the
Property. Assignee shall have until March 25, 2005 to complete its review of the Property and
until March 15, 2005 to obtain Dublin City Council approval of this Assignment and may, at its
election, notify Assignor, on or before either of such. dates, respectively, that Assignee is
dissatisfied with its review of the Property and/or has failed to obtain Dublin City Council
approval of this Assignment, as the case may be, and that it thereby cancels and terminates this
Assignment, in which case, Assignee's right, title and interest in and to the Agreement shall be
automatically assigned to Assignor without any furthe;r agreement between the parties and
Assignor shall thereafter have all rights of "Buyer" under the Agreement. If this Assignment is
terminated by Assignee in accordance with the terms of this Paragraph 3, then Assignee shall be
fully released from all further liability and obligations hereunder (including the payment to
Assignor of the Assignment Consideration) and under the Agreement. Assignee acknowledges
and agrees that it shall have no right to terminate the Agreement for any purpose whatsoever,
}H0525955.1 }3
either prior to or after March 25, 2005, without the express written consent of Assignor.
Furthermore, Assignee shall not assign the Agreement, or any interest therein, without the prior
written consent of Assignor except to any entity controlled by Assignee.
4. From and after the Closing Date through the date the Assignment
Consideration is paid to Assignor, Assignee shall, before entering into any agreement with a
third party for the sale of the Property, and before undertaking any marketing efforts whatsoever
to sell the Property, notify Assignor in writing of the prospective transaction or marketing plan
and setting forth the general terms and conditions upon which Assignee is willing to sell the
Property ("Assignee's Notice"). Assignor shall have ten (10) business days after its receipt of
Assignee's Notice to deliver to Assignee a written notice agreeing to purchase the Property from
Assignee at a purchase price equal to the sum of the Agreement Consideration and so much of
the Assignment Consideration as has then been paid to Assignor, together with a reasonable
interest factor to be agreed upon at such time by Assignee and Assignor, but in no event less
than four percent (4%) per annum nor greater than eight percent (8%) ("Assignor's
Acceptance"). Assignor and Assignee shall, within thirt~? (30) days after Assignee's receipt of
Assignor's Acceptance, enter into a written agreement for the purchase and sale of the Property,
the terms and conditions of which shall be consistent with those set forth in Assignor's
Acceptance (with respect to the purchase price) and Assilmee's Notice (with respect to all other
terms and conditions). Notwithstanding the foregoing, Assignor's obligation to acquire the
Property under the terms of the Assignor's Acceptance shall be subject to and conditioned upon
Assignor's ability to obtain an economic development agreement or other economic incentives
from any applicable governmental authority upon terms and conditions and within a timeframe
reasonably acceptable to Assignor and Assignee, but in no event more than one hundred twenty
(120) days after the date Assignor and Assignee enter into a written purchase agreement for the
Property. In the event Assignor fails to deliver Assignor's Acceptance to Landlord within said
;xoszs9ss i }4
ten (10) business day period and/or Assignee and Assignee, despite their good faith efforts, fail
to enter into a written agreement for the purchase and sale of the Property within thirty (30)
days after Assignee's receipt of Assignor's Acceptance, then such failure shall be conclusively
deemed a rejection of the Property and a waiver by Assignor of this right of first offer,
whereupon, Assignor shall have no further rights to purchase the Property hereunder and
Assignee shall be free to sell the Property to a third party or commence its marketing efforts
upon terms and conditions acceptable to Assignee. Assignee agrees to enter into and execute a
memorandum of the foregoing right of first offer and to the recordation of such memorandum
with the applicable county recorders to give public notice of Assignor's rights hereunder. Upon
the payment of the Assignment Consideration to Assignor or a waiver of Assignor's rights
under this Paragraph 4, Assignor shall, upon Assignee's request, execute and deliver an
instrument in recordable form to evidence Assignor's relinquishment of its rights under this
Paragraph 4. The provisions of this Paragraph 4 shall riot apply to any transfer of all or any
portion of the Property by Assignee to any public entity where no monetary consideration is
paid.
5. Assignor and Assignee agree and acknowledge that this Assignment is not, and
is in no manner intended to be, an economic development agreement of any nature whatsoever
between Assignor and Assignee.
6. Assignor hereby represents and warrants to Assignee that (a) the Agreement is
in full force and effect and has not been modified or amended, except as set forth herein, (b) to the best
of Assignor's knowledge, neither party to the Agreement ns in default thereunder nor are there any
conditions which, with notice or the lapse of time, would. constitute an event of default under the
Agreement, and (c) Assignor has the full right and authority to assign the Agreement and has obtained
the consent of Seller to this Assignment, if required.
{H0525955.1 }S
7. If, through no fault of Assignee, the closing does not occur (e.g., due to a
default by Seller under the Agreement), this Assignment shall also terminate, in which event (i)
Assignee shall not be liable to Assignor for the Assignment Consideration; (ii) Assignor shall
have all rights against Seller to the Deposit paid under the Agreement and for all other rights as
"Buyer" under the Agreement; and (iii) the parties hereto shall be released from all further
liabilities and obligations hereunder. In the event Assignor shall thereafter acquire the Property
in pursuit of the rights of "Buyer" under the Agreement, Assignee shall be obligated to purchase
the Property from Assignor for a purchase price equal to the Agreement Consideration plus the
Assignment Consideration, less any Deposit previously returned to Assignor, payable in the same
manner as contemplated herein and otherwise upon the relevant and applicable terms set forth
herein. Notwithstanding that in such event Assignee's rights under the Agreement have been re-
assigned to Assignor, Assignee agrees to reasonably cooperate with Assignor in Assignor's
pursuit of "Buyer's" rights under the Agreement against Seller, including joining as a party in any
litigation to the extent both parties mutually determine in good faith that such joinder is
necessary or desirable. Furthermore, in such event, if Assignor fails to pursue an action against
the Seller for specific performance, Assignee shall have the right and authority to pursue such
action. Any out of pocket costs incurred by Assignor or Assignee in any such litigation shall be
borne equally by the parties hereto. If the closing does :not occur through the fault of Assignee,
this Assignment shall not terminate and Assignee shall be and remain obligated to pay to
Assignor the Assignment Consideration as if the closing actually occurred on the date the closing
would have occurred but for Assignee's default. If Assignor receives any communication, written
or oral, regarding the Agreement from Seller or any other party, Assignor shall immediately
provide such information to Assignee. All notices required hereunder shall be sufficient if in
writing and mailed by certified mail, postage prepaid, or overnight courier, who issues a receipt
upon delivery of packages, addressed to the following:
jH0525955.1 }6
If to Assignor: Duke Realty Limited Partnership
Attn: Donald J. Hunter
Senior Vice President
5600 Blazer Parkway, Suite 100
Dublin, Ohio 43017
With a copy to: Duke Realty Limited Partnership
Attn: Legal Columbus
600 E. 96"' Street, Suite 100
Indianapolis, IN 46240
If to Assignee: City of Dublin
Attn: Jane Brautigam
5200 Emerald Parkway
Dublin, Ohio 43017
With a copy to: Schottenstein, Zox & Dunn
Attn: Gregory S. Baker, Esq.
250 West Street
Columbus, Ohio 43215
8. This Assignment shall be governed by and construed in accordance with the
internal laws of the State of Ohio, without reference to the conflicts of laws or choice of law
provisions thereof. The parties agree that this Agreement is the result of negotiation by the
parties, each of whom was represented by counsel, and thus, this Assignment shall not be
construed against the maker thereof. Time is of the essence of each and every provision hereof.
Neither the failure of either party to exercise any power given such party hereunder or to insist
upon strict compliance by the other party with its obligations hereunder, nor any custom or
practice of the parties at variance with the terms hereof shall constitute a waiver of either party's
right to demand exact compliance with the terms hereof. This Assignment contains the entire
agreement of the parties hereto with respect to the Property, and no representations, inducements,
promises or agreements, oral or otherwise, between the parties not embodied herein or
incorporated herein by reference shall be of any force or effect. This Assignment may be
{H0525955.I j7
executed in any number of counterparts, each of which shall be deemed to be an original, but all
of which, when taken together, shall constitute but one anti the same instrument.
EXECUTED this _ day of March, 2005.
"ASSIGNOR"
DUKE CONSTRUCTION LIMITED
PAR"CNERSHIP, an Indiana limited
partnership
By: Duke Business Centers Corporation,
its general partner
By:
Printed:
Title:
"ASSIGNEE"
THE CITY OF DUBLIN, OHIO, an Ohio
municipal corporation
By: _
Jane Brautigam, Manager
Certificate of Funds Available by Finance
Director
{H0525955.1 }g
STATE OF )
SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally appeared Jane
Brautigam, by me known to be the Manager of the City of Dublin, Ohio, an Ohio municipal
corporation, who acknowledged execution of the foregoing "Assignment of Real Estate Purchase
Agreement" on behalf of said corporation.
WITNESS my hand and Notarial Seal this day of , 2005.
Notary Public
(Printed Signature)
My Commission Expires:
My County of Residence:
STATE OF )
SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally appeared
by me known to be the , of Duke Business
Centers Corporation, an Indiana corporation, the general partner of Duke Construction Limited
Partnership, an Indiana limited partnership, who acknowledged execution of the foregoing
"Assignment of Real Estate Purchase Agreement" on behalf of said partnership.
WITNESS my hand and Notarial Seal this _ day of , 2005.
Notary Public
(Printed Signature)
My Commission Expires:
My County of Residence:
{H0525955.1 }9
EXHIBIT "A"
Leal Description of Prao~erty
To be attached.
{H0525955.1 } l o
EXHIBIT "B"
MORTGAGE
CITY OF DUBLIN, OHIO, an Ohio municipal corporation, with a mailing address of 5200 Emerald
Parkway, Dublin, Ohio 43017, for Six Hundred Fifty Thousand Dollars ($650,000.00) paid, grants, with mortgage
covenants, to DUKE CONSTRUCTION LIMITED PARTNERSHIP, an Indiana limited partnership, with a
mailing address of 5600 Blazer Parkway, Suite 100, Dublin, Ohio 43017, the following real property:
See Exhibit "A" attached hereto and hereby made a part hereof.
Prior Instrument Reference Number:
This mortgage is given, upon the statutory condition, to secure the payment of Six Hundred Fifty Thousand
Dollars ($650,000.00). Notwithstanding anything to the contrary contained herein, this mortgage is given subject to
easements, conditions, covenants, restrictions and reservations of record, zoning ordinances and legal highways and
real estate taxes and assessments not yet due and payable.
"Statutory condition" is defined in Section 5302.14 of the Revised Code and provides generally that, if the
mortgagor pays the principal and interest secured by this mortgage, performs the other obligations secured by this
mortgage and the conditions of any prior mortgage, pays all the taxes and assessments, maintains insurance against
fire and other hazards, and does not commit or suffer waste, then this mortgage shall be void.
Executed this day of , 2005.
jH0525955.1 } 11
CITY OF DUBLIN, OHIO, an Ohio
municipal corporation
By: _
Jane Brautigam, Manager
STATE OF )
SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally appeared Jane Brautigam, by me
known to be the Manager of the City of Dublin, Ohio, an Ohio municipal corporation, who acknowledged execution
of the foregoing "Mortgage" for and on behalf of said corporation.
WITNESS my hand and Notarial Seal this day of _ , 2005.
Notary Public
(Printed Signattzre)
This Instrument Prepared by:
Schottenstein, Zox & Dunn
A Legal Professional Association
Attn: Gregory S. Baker, Esq.
250 West Street
Columbus, Ohio 43215
(614) 462-2344
{H0525955.1 } 12
City Manager
5200 Emerald Parkway • Dublin, OH 43017
Phone: 614-410-4400 • Fax: 614-410-4490
CITY nF DUBLIN M e m o
To: Members of Dublin City Council
From: Jane S. Brautigam, City Manager L~~S.
r uur~gtav,.?
Date: March 10, 2005 vV
Initiated By: Steve Smith, Law Director
Dana McDaniel, Deputy City Mgr./Director of Economic Development
Marsha Grigsby, Deputy City Mgr./Director of Finance
Re: Ordinance No. 21-05 An Ordinance Authorizing the City Manager to Enter into an
Assignment of Real Estate Purchase Agreement with Duke Construction Limited
Partnership, for the Purpose of Acquiring a 74 Plus or Minus Acre Tract of Land at the
Southwest Corner of Eiterman Road and S.R.161/Post Road, Appropriating Funds
Therefor ,and Declaring an Emergency.
SUMMARY:
Ordinance No. 21-OS provides for the acquisition of a 74.5 acre;, more or less, tract of land located south of
S.R.161/Post Road and west of Eiterman Road from Franklin=Union Real Estate LLC. Duke Construction
Limited Partnership (Duke) has an option to purchase the property and the City will enter into an Assignment of
Real Estate Agreement with Duke whereby they will assign to the City all of its rights to acquire the property
under the terms of the agreement.
In discussions with City Council on land acquisition, this tract of land has been identified as an important parcel
in an effort to preserve the economic development capability of the area near the U.S. 33/S.R. 161 interchange.
In accordance with the Assignment of Real Estate Purchase Agreement, the City will acquire the right from Duke
to purchase the property from Franklin-Union Real Estate LLC for $3.1 million. In addition, the City will pay to
Duke the amount of $760,000 at closing and $650,000 the earlier of 36 months after closing or upon the sale of
the property to anon-governmental entity for the assignment or right to purchase the property.
The acquisition of the land will be financed initially by an advance from the General Fund to a Land Acquisition
Fund that has been established. Long-term debt will be issued within the next year to repay the advance to the
General Fund. The debt service obligations will be made from ~~the annual allocation ($500,000) in the Capital
Improvements Tax Fund for general land acquisition or a portion of the inside millage from property taxes.
Assuming the city will make both payments to Duke, the cost to acquire the property will be $4.5 million or
approximately $60,400 per acre.
In order to meet the terms of the Real Estate Purchase Agreement between Franklin-Union LLC and Duke, it is
necessary to request to dispense with the public hearing and have emergency passage.
RECOMMENDATION:
Staff is recommending that Ordinance No. 21-OS be passed as emergency legislation at the March 14, 2005 City
Council meeting.
T:\2005\024-ORD 21-OS MEMO
DECLARATION OF OFFICIAL INTENT
Eor Reimbursement of Expenditures from Bonds/Notes
This is a Declaration of Official Intent under Treasury Regulations Section 1.103-18.
1. The City of Dubli? (the City) declares that it reasonably expects that the capital
expenditures described in 2 will be reimbursed with the proceeds of bonds, notes,
certificates, or obligations under a financing lease, installment purchase or loan agreement,
representing a borrowing by the City in the maximunt principal amount, for such
reimbursements, of X3,860,000.
2. The capital expenditures to be reimbursed are for the acquisition of land for future
economic development. Specifically, the City will acquire a 74.5 acre more or less, tract of
land located south of S.R. 161/Post Road and west of Eiterman Road to preserve the
economic development capability of the area near the U.S. 33/S.R. 161 interchange.
3. This Declaration of Official Intent is consistent with the budgetary and financial
circumstances of the City of this Declaration, in that no money (including the money
advanced to make the expenditures that are to be reimbursed) is, or is reasonably, allocated
on a long-term basis, or otherwise set aside by the City or any other entity, with respect to
the expenditures described in 2.
4. Within 30 days from this date this Declaration of Official Intent shall be made
available as a public record subject to inspection by the general public or at the main
administrative office of the Issuer for reasonable public inspection during all normal
business hours.
The undersigned has been authorized by the City to make and sign this Declaration on
behalf of the Ciry.
Date of Declaration:
gy ~ ~
(Signature)
~rsha i C'irig~hy, n u ('itT~~anager/i~ireet~r ~f Fin~nc_e
(Name and Title)
Caution: This Declaration of Official Intent will not be effective IInI .4S the notes,
bonds or other obligations providing moneys for the reimbursement are issued and the
reimbursement is made (by an allocation on the books and records identifying the
expenditure as in 2 above) by the later of (a) one year alter the date of payment of the
expenditure or (b) one year after the date the property with respect to which the expenditure
is made was placed in service.
P:\DATA\FINANCE\FOftL1S\Dzclaration of Official Intenedoc