05-09 OrdinanceRECORD OF ORDINANCES
Du~~ton Lc,al Blank,lnc.
OS-09
Ordincuzce No.
Passed
20
AN ORDINANCE AUTHORIZING THE PURCHASE OF A 13.895
ACRE PROPERTY LOCATED ON THE SOUTH SIDE OF POST
ROAD FOR THE EXPANSION OF COFFMAN PARK IN THE CITY
OF DUBLIN, COUNTY OF FRANKLIN, STATE OF OHIO, AND
APPROPRIATING FUNDS THEREFOR (THOMAS PROPERTY)
WHEREAS, a goal of City Council is to continue to acquire parkland for recreation
and open space purposes; and
WHEREAS, the 2007 Community Plan, consistent with past planning efforts,
identifies the expansion of Coffman Park as an opportunity to create a "central Park"
for Dublin; and
WHEREAS, funding for the acquisition of the property has been programmed and
reserved in the Parkland and Acquisition Fund; and
WHEREAS, it is necessary to amend the 2009 Appropriations Ordinance to provide
adequate funding authorization for the acquisition of the property.
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 the Real Estate
Purchase Agreement and any necessary closing documents related to the acquisition of
the 13.895 acre tract of land identified in the attached Exhibit.
Section 2. There be appropriated from the unappropriated balance in the Parkland
Acquisition Fund the amount of 53,800,000 to account 402-0210-780-2510 for the
acquisition of the property.
Section 3. This ordinance shall take effect and be in force from and after the earliest
date allowed by law.
Passed this
Mayor -Presiding Officer
ATTEST:
Clerk of Council
~`~ day o -~ b YGt Q `' , 2009
~-2.,
r,~rr nF ntieu
City Manager
5200 Emerald Parkway • Dublin, OH 43017
Phone: 614-410-4400 • Fax: 614-410-4490
To: Members of Dublin City Council
From: Marsha I. Grigsby, Interim City Manager ~~
Date: January 29, 2009
Re: Ordinance OS-09 -Authorizing the Acquisition of Property Along
Post Road (Thomas Property)
Summary
Memo
As City Council is aware, the administration has been working with the property owners for quite some
time to acquire this property. This is the final property to be acquired for the future expansion of
Coffman Park. The attached map identifies the property to be acquired, the properties previously
acquired in January 2001 and the existing Coffman Park.
The acquisition of this property is being funded from the Parkland Acquisition Fund. This acquisition
has been planned since 2000 with funding from the property tax revenue generated from the City's
inside millage being reserved over the past several years for this purpose.
The City completed an appraisal to determine the value of the property. The negotiated acquisition price
is approximately 5% higher than the appraised value.
Section 8.01(a) of the Real Estate Purchase Agreement references the current agricultural use valuation
recoupment. Because the property will become parkland, the City is eligible to file an application to
defer any recoupment charges. If the City's application is approved (previous applications filed have
been approved) and as long as the property remains parkland, the City will not be required to pay the
fees.
Recommendation
Staff recommends that Council approve Ordinance OS-09 at the second reading/public hearing on
February 17, 2009.
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Purchased:
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REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT ("the Agreement") is made and
entered into on the day of January, 2009 (the "Effective Date"), by and among THE CITY
OF DUBLIN, OHIO, an Ohio municipal corporation ("Buyer"), with offices at its City Hall,
5200 Emerald Parkway, Dublin, Ohio 43017, MDT REAL ESTATE MANAGEMENT
LIMITED PARTNERSHIP, an Ohio limited partnership ("MDT"), and William M. Thomas,
Jr. and Robert T. Thomas, as Successor Trustees of the DOROTHY L. THOMAS TRUST
dated May 25, 2006 (the "DLT Trust"), and National City Bank of Columbus, Ohio, as Trustee
of the WILLIAM MARVIN THOMAS TRUST dated January 31, 1979 (the "WMT
Trust")(MDT, the DLT Trust and WMT Trust are sometimes collectively referred to herein as
"Seller" or "Sellers").
Background Information
A. Seller is the owner of certain property situated in the City of Dublin, County of
Franklin and State of Ohio, such property containing approximately 13.895 acres (said property,
together with all improvements constructed thereon, and all rights, appurtenances and
hereditaments appertaining thereto, shall hereinafter be referred to as "Parcel A"`). Exhibit "A"
attached hereto and made a part hereof, is a graphical depiction of Parcel A showing its general
size, location and configuration (the "Site Plan").
B. Parcel A is currently part of a larger tract of real property comprising
approximately 21.622 acres and commonly known as Tax Parcel No. 273.000287 (the "Pazent
Parcel"). The Pazent Parcel is generally shown on the Site Plan. The Parent Parcel less Parcel A
is hereinafter referred to as "Parcel B." Parcel B is generally shown on the Site Plan.
C. In lieu of condemnation, Buyer desires to purchase from Seller and Seller desires
to sell to Buyer all of Seller's right, title and interest in Pazcel A, at the price and on the terms
and conditions hereinafter set forth.
D. Buyer intends to develop and use Pazcel A for municipal purposes.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree to the foregoing Background
Information and as follows:
ARTICLE I
PURCHASE AND SALE OF PROPERTY
1.01 Agreement. On the terms and conditions set forth below, and for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller
hereby agrees to sell to Buyer, and Buyer hereby agrees to purchase from Seller, all of Seller's
right, title and interest in Parcel A.
(H1422406.6 ~
ARTICLE II
PURCHASE PRICE
2.01 Purchase Price. The purchase price for Parcel A shall be Three Million Eight
Hundred Thousand Dollars ($3,800,000.00) (the "Purchase Price"). The Purchase Prices shall be
payable to Sellers at Closing, in immediately available funds or by cashier's check, adjusted by
all prorations, credits, allowances and other adjustments specifically provided for herein.
Although Pazcel B is not being purchased by Buyer as part of this Agreement, the parties agree
that the Purchase Price includes any and all damages whatsoever incurred by Parcel B as a result
of the transaction contemplated by the terms of this Agreement.
Subject to the prorations, credits, allowances and other adjustments specifically provided
for herein, the Purchase Price shall be divided among the Sellers as follows: % to MDT, '/ to
William M. Thomas, Jr. and Robert T. Thomas, as Successor Trustees of the DLT Trust, and '/
to National City Bank of Columbus, Ohio, as Trustee of the WMT Trust. All expenses,
prorations, credits, allowances and other adjustments paid or received by Seller specifically
provided for herein will be divided among Sellers in accordance with the immediately preceding
sentence.
ARTICLE III
3.01 Contingent Agreement. This Agreement shall be completely contingent upon
Buyer's satisfaction of or Buyer's waiver of the contingencies set forth in Section 3.02 below
(the "Contingencies"), within thirty (30) days after the Effective Date (the "Contingency
Period"). The date upon which all Contingencies aze either satisfied or waived, pursuant to
Section 3.03 or otherwise, shall be referred to as the "Contingency Date."
3.02 Contingencies. The Contingencies are as follows:
(a) Phase I Environmental Report. Buyer shall, at its cost, obtain a satisfactory Phase
I Environmental/Wetlands Report of Parcel A;
(b) Cit~pproval. The City Council of the City of Dublin shall approve of the
purchase of Parcel A;
(c) City Appropriation of Funds. The City Council of the City of Dublin shall
appropriate funds to acquire Parcel A;
(d) Other Municipal Approvals. Buyer shall obtain evidence satisfactory to Buyer
that the survey and legal description of Parcel A will be approved by the necessary authorities for
purposes of transferring Parcel A from Seller to Buyer; and
(e) Miscellaneous. Buyer shall be satisfied that Parcel A contains no grave sites or
other elements of historic or archaeological status or other matters which would interfere with
Buyer's intended use of Pazcel A.
{Hi4?2406.6 )
3.03 Notice of Satisfaction or Waiver. The Contingencies above shall be deemed to
have been satisfied or waived, unless on or before the expiration of the Contingency Period,
Buyer gives to Seller written notice of Buyer's failure to satisfy the Contingencies. Upon
delivery of such notice, this Agreement shall terminate, in which case both parties shall be fully
released from all further liability and obligations hereunder.
ARTLCLE IV
EVIDENCE OF TITLE
4.01 Title Commitment. Buyer shall, at its sole cost and expense, obtain an ALTA
Commitment for Title Insurance (1966) (the "Title Commitment") issued by Commonwealth
Land Title Insurance Company, through its agent, Benchmark Title Agency, Ina (the "Title
Insurance Company"), certified to at least the Effective Date of this Agreement, pursuant to
which the Title Insurance Company shall commit to issue an ALTA Owner's Title Insurance
Policy (6/17/2006), in the full amount of the Purchase Price, showing in Seller good and
marketable title to Parcel A, free and cleaz of the standard printed exceptions contained in
Schedule B of said commitment and final policy, and free and clear of all liens, charges,
encumbrances and clouds of title, whatsoever, except the following: (a) those created or assumed
by Buyer; (b) zoning ordinances and legal highways; (c) real estate taxes which aze a lien on
Pazcel A but which are not yet due and payable; (d) easements and restrictions of record
acceptable to Buyer; and (e) monetary liens which are the obligation of Seller to dischazge prior
to or at Closing without further objection from Buyer.
4.02 Endorsement at Closin¢. Within ten (10) days after the Contingency Date (if this
Agreement is not then terminated) and at the Closing, Buyer may obtain endorsements to the
Title Commitment updating the Title Commitment to the respective date and showing no change
in the state of title to Parcel A. After Closing, a final owner's title insurance policy shall be
issued in the amount of the Purchase Price. The entire cost of all commitments and final title
insurance policies provided in accordance with this Agreement, and all costs of title
examinations made for such purposes, shall be paid for by Buyer.
4.03 Survev. Buyer may, at its sole cost and expense, obtain a current survey of Pazcel
A, prepared by a surveyor registered in the State of Ohio. The survey shall include a legal
description of Parcel A and shall be certified by the surveyor to Buyer, Seller and the Title
Insurance Company. Subject to the approval of Buyer, Seller and the Title Insurance Company,
the legal description set forth on the survey shall be used in the Title Commitment and policy
and in all documents of transfer contemplated hereby. The survey shall be sufficient to waive or
insure over any and all questions or survey. The survey shall show: (a) that Parcel A is not
subject to any discrepancies, conflicts in boundaries, shortages in area, nor subject to any
encroachments of any kind; (b) the total acreage of Pazcel A, all perimeter lines, all easements
and rights-of--way (whether underground, surface or other and whether recorded or observable by
physical inspection) for access, travel, transmission of energy or for drainage purposes; and (c)
all roads or highways abutting Parcel A or providing access thereto, and all adjacent landowners.
4.04 Defects. In the event that an examination of either the Title Commitment
(including any endorsements) or the survey discloses any matter adversely affecting title to
Parcel A, or if title to Pazcel A is not marketable, or if Pazcel A is subject to liens, encumbrances,
{HI4?2a06.6 }
easements, conditions, restrictions, reservations or other matters not specifically excepted by the
terms of this Agreement, or in the event of any encroachment or other defect shown by the
survey (the foregoing collectively referred to as "Defects"), Seller shall have a reasonable time,
not to exceed thirty (30) days after written notice thereof, within which to cure or remove any
such Defects. If Seller is unable or unwilling to cure or remove the Defects within said thirty
(30) day period, Seller shall immediately give to Buyer written notice of such Seller's inability or
unwillingness and thereafter, Buyer may take any one or more of the following actions: (x)
waive such exceptions and proceed with the transaction; (y) by written notice to Seller, give
additional time to correct such defects or remove such exceptions to title; or (z) withdraw from
this transaction and terminate this Agreement. Buyer shall not be required to object to any
monetary liens, all of which are the responsibility of Seller to remove prior to or at Closing.
ARTICLE V
DEED AND OTHER DOCUMENTS
5.01 Deed. Seller shall convey to Buyer, at the time of Closing, good and mazketable
title in fee simple to Pazcel A by duly and validly executed, recordable limited warranty deed, or
fiduciary deed, as appropriate, signed by all parties necessazy or required by the Title
Commitment or Buyer's attorney, free and clear of all defects, mortgages, easements,
restrictions, reservations, conditions, agreements, liens and encumbrances, except those excepted
in Paragraph 4.01 hereof.
5.02 Other Documents. Buyer and Seller agree that such other documents as may be
legally necessary or appropriate to carry out the terms of this Agreement shall be executed and
delivered by the appropriate party at Closing. Such documents shall include, but not be limited
to closing statements, seller's affidavits regarding liens, unrecorded matters and possession,
memoranda of busts, certificates of authority, FIRPTA affidavits, 1099Ss, and, if requested,
Seller's Affidavits regarding the warranties and representations set forth in Article X hereof.
ARTICLE VI
6.01 Possession at Closing. Buyer shall be entitled to full and exclusive possession of
Parcel A after the Closing. However, if Seller executes at the Closing a farm lease on terms and
conditions mutually acceptable to Buyer and Seller, then Seller shall be entitled to possession of
Parcel A from and after the Closing Date in accordance with the terms of said farm lease.
For and during the continuance of this Agreement, Seller shall afford all representatives
of Buyer free and full access to Parcel A, for inspection and examination, at reasonable times.
This privilege shall include the right to make surveys, site plans, renderings, soil tests,
environmental inspections, borings, percolation tests and other tests to obtain any relevant
information necessary to determine subsurface, topographic and drainage conditions and the
suitability of Parcel A for use and development by Buyer. From and after the Closing Date,
Seller shall afford Buyer and all representatives of Buyer free and full access to Parcel A, for any
purpose whatsoever.
{H1422406.6 j
ARTICLE VII
CLOSING
7.01 Closing Date. The purchase and sale of Parcel A shall be closed within ten (10)
days after the Contingency Date (the "Closing"), but in any event no later than March 20, 2009,
which Closing may be extended by agreement of the parties and shall be extended by such time,
if any, as is necessary to cure Defects, as set forth in Section 4.04 hereof (the "Closing Date").
The Closing shall be at such time and place as Buyer and Seller may mutually agree upon.
ARTICLE VIII
APPORTIONMENTS AND ADJUSTMENTS
8.01 Adiustments at Closin¢. On the Closing Date, Buyer and Seller shall apportion,
adjust, prorate and pay the following items in the manner hereinafter set forth:
(a) Real Estate Taxes and Assessments. Seller shall have no obligation to pay any
current agricultural use valuation ("CAUV") recoupments with respect to Parcel A that arise by
virtue of the transaction contemplated herein and/or Buyer's subsequent use of Parcel A.
Notwithstanding the foregoing, Seller shall pay or credit against the Purchase Price all real estate
taxes, together with penalties and interest thereon, all assessments which are a lien against Parcel
A as of the Closing Date (both current and reassessed, whether due or to become due and not yet
payable), all real estate taxes for years prior to closing, real estate taxes for the year of Closing,
prorated through the Closing Date and, except as provided above, all CAUV recoupments, if any,
levied prior to the Closing resulting from Seller's failure to continue to cause Parcel A qualify
for the special tax treatment under the CAUV program. The proration of undetermined taxes
shall be based upon a three hundred sixty-five (365) day year and on the last available CAUV tax
rate, giving due regard to (i) applicable exemptions, recently voted millage, change in tax rate or
valuation, etc., whether or not the same have been certified, and (ii) the acreage which Parcel A
bears to the acreage of the Parent Parcel. Upon making the proration provided for herein, Seller
and Buyer agree that the amount so computed shall be final and shall not be subject to later
adjustment should the amount credited at Closing be incorrect based upon actual tax bills
received by Buyer after Closing. Seller warrants and represents that, to Seller's Actual
Knowledge, all assessments now a lien are shown on the County Treasurer's records and that , to
Seller's Actual Knowledge„ no improvement, site or area, has been installed by any public
authority, the cost of which is to be assessed against Parcel A in the future. For all purposes of
this Agreement, the term "Seller's Actual Knowledge" means the current actual knowledge of
Andrew F. Thomas, William M. Thomas and Robert T. Thomas without any independent
investigation or inquiry. Seller further warrants and represents that, to Seller's Actual
Knowledge, neither Seller nor any of its agents, employees or representatives have received
notice, oral or written, or have knowledge of any proposed improvements, any part of the cost of
which would or might be assessed against Parcel A. Seller has satisfied itself that the sale of
Parcel A (and the attendant severance thereof from the Parent Parcel) will not adversely affect
the CAUV tax treatment of Parcel B to be retained by Seller, and Seller shall be solely
responsible for any CAUV recoupment with respect to Parcel B as a result of the transaction
contemplated herein. If the transaction contemplated herein results in a retroactive increase in
real estate taxes applicable to Parcel A, then in making the proration provided for herein, the City
shall hold Sellers harmless against such increase.
(Ni422406.6
(b) Closing Expenses. Seller shall, at the Closing (unless previously paid), pay by
credit against the Purchase Price the following:
(i) The cost of all municipal services and utility charges (if any) due through the
Closing Date; and
(ii) The cost to remove any lien or mortgage not assumed by Buyer.
The Buyer shall, at the Closing (unless previously paid), pay the following;
(i) Recording fees required for recording the deed referenced in Section 5.01 above;
(ii) The cost of recording fees, deed stamps and conveyance fees (if any);
(iii) The cost of furnishing the Title Commitment and policy referred to in Paragraph 4
hereof; ,~
(iv) The fee, if any, chazged by the Title Insurance Company and/or closing agent for
closing the transaction contemplated herein; and
(v) The cost of the survey, if any, referred to in Paragraph 4 hereof.
(c) Brokers. Seller hereby warrants and represents to Buyer that Seller has not
engaged or dealt with any broker or agent in regard to this Agreement. Seller further agrees to
indemnify Buyer and hold Buyer harmless against any liability, loss, cost, damage, claim and
expense (including, but not limited to, attorneys' fees and costs of litigation) which Buyer shall
ever incur or be threatened with because of any claim of any broker or agent claiming through
Seller, whether or not meritorious, for any such fee or commission. Buyer hereby represents and
warrants to Seller that Buyer has not engaged or dealt with any broker or agent in regard to this
Agreement. Buyer agrees to indemnify Seller and hold Seller harmless against any liability, loss,
cost, damage, claims and expense (including but not limited to, attorneys' fees and cost of
litigation) which Seller may ever suffer, incur, or be threatened with because of any claim by any
broker or agent claiming by, through or under Buyer, whether or not meritorious, for any such
fee or commission.
ARTICLE IX
WARRANTIES AND REPRESENTATIONS OF SELLER
9.01 Warranties and Representations. In addition to any other representation or
warranty contained in this Agreement, Seller hereby represents and warrants as follows:
(a) To Seller's Actual Knowledge, neither Seller nor any agent or representative of
Seller, has received any notice or notices, either orally or in writing, from any
county, state or any other governmental agency or body, of any zoning, fire,
health, environmental or building violation, or violation of any laws, ordinances,
statutes or regulations relating to pollution or environmental standards, which
have not heretofore been corrected;
(H1422406b~
(b) To Seller's Actual Knowledge, the execution, delivery and performance of this
Agreement, and the consummation of the transaction contemplated hereby, will
not result in any breach of, or constitute any default under, or result in the
imposition of any lien or encumbrance against Parcel A, under any agreement or
other instrument to which Seller is a parry or by which Seller or Parcel A might be
bound;
(c) To Seller's Actual Knowledge, neither Seller, nor any agent or representative of
Seller, has received any notice, either orally or in writing, of any change
contemplated in any applicable laws, ordinances or restrictions, or any judicial or
administrative action, or any action by adjacent landowners, which would
prevent, limit or in any manner interfere with the proposed use of Parcel A;
(d) Except as provided herein, no other person or entity other than Seller currently
owns or has any legal or equitable interest in Parcel A and no other person or
entity other than Buyer has or will have any right to acquire Seller's interest in
Parcel A, or any portion thereof;
(e) All taxes payable with respect to the operation, ownership or control of Parcel A
which are allocable to the period ending on the Closing, and all prior periods,
shall be or have been paid by Seller, and Seller shall be responsible for the timely
filing of all returns or other documents required by any taxing authority claiming
jurisdiction with respect to any such taxes;
(f) The execution, delivery and performance by Seller of this Agreement and the
performance by Seller of the transactions contemplated hereunder, and the
conveyance and delivery by Seller to Buyer of possession and title to Parcel A
have each been duly authorized by such persons or authorities as may be required,
and on the Closing Date, Seller shall provide Buyer with certified resolutions, or
other instruments, in form reasonably satisfactory to Buyer, evidencing such
authorization;
(g) Through and until the Closing, Seller shall not, without the prior written consent
of Buyer, enter into any easement, lease or other contract pertaining to Pazcel A;
(h) To Seller's Actual Knowledge, there are no hazazdous wastes, hazardous
substances, or hazardous materials located in, on or about or generated from
Parcel A which may require remediation or which may result in penalties under
any applicable law;
(i) Except as necessary to continue farming for the season, Seller shall not, without
the prior written consent of Buyer, alter the natural topography and vegetation
currently existing on, in or about Parcel A, including, but not limited to the
cutting, burning or removal of any trees, removing any minerals or topsoil,
dumping of any soil, fill or other matter, or altering the natural flow of any water
courses located on Parcel A;
(Hi422406.6 ~
(j) To Seller's Actual Knowledge„ there are no laws, ordinances, regulations,
covenants, conditions or restrictions pertaining to or encumbering Parcel A which
would, in any way, impair, interfere with or prevent Buyer's intended use of
Parcel A; and
(k) Seller is not a "Foreign Person" as that term is defined in the Foreign Investment
in Property Tax Act.
All representations and warranties set forth in this Article X shall be true and correct as of
the date hereof and as of the Closing Date, and at Closing, if requested by Buyer, Seller shall so
certify, in writing, in form reasonably requested by Buyer.
9.02 Breach of Warranties Prior to Closine. If during the pendency of this Agreement,
Buyer determines that any warranty or representation given by Seller to Buyer under this
Agreement is knowingly untrue, incorrect or misleading, in whole or in part, the same shall
constitute a default by Seller hereunder. In such event, Buyer shall have, as its sole remedies, the
right to terminate this Agreement or the right to seek specific performance of this Agreement and
recover from Seller Buyer's reasonable out-of-pocket costs and expenses incurred in negotiating
this Agreement and performing Buyer's due diligence investigations of the Property.
ARTICLE X
NOTICES
10.1 Notice Procedure. Any notices required hereunder shall be in writing, shall be
transmitted by certified mail, postage prepaid, return receipt requested, hand delivery, or by
nationally recognized overnight courier, and shall be deemed given when received or when
receipt if refused, and shall be addressed to the parties as follows:
(a) If intended for Seller, to:
Andrew F. Thomas
10070 Warner Road
Plain City, Ohio 43064
Paula T. Ferguson
5815 Leven Links Ct.
Dublin, Ohio 43017
National City Bank Trust
Department
155 E. Broad Street
Columbus, Ohio 43215
With a copy to:
Richard L. Dimond, Esq.
261 West Johnston Road
Columbus, Ohio 43230
And
(H1422406.6 ~
Daniel J. Kayne, Esq.
Kayne Law Group
612 Park Street
Suite 200
Columbus, Ohio 43215
(b) If intended for Buyer, to:
Marsha Cmgsby
Acting City Manager
City of Dublin
5200 Emerald Parkway
Dublin, Ohio 43017
with a copy to:
Gregory S. Baker, Esq.
Schottenstein Zox & Dunn Co., LPA
A Legal Professional Association
250 West Street
Columbus, Ohio 43215
ARTICLE XI
GENERAL PROVISIONS
11.01 Govemin Law. This Agreement is being executed and delivered in the State of
Ohio and shall be construed and enforced in accordance with the laws of the State of Ohio. For
all litigation, disputes and controversies which may arise out of or in connection with this
Agreement, the undersigned hereby waive the right to trial by jury and consent to the jurisdiction
of the courts in the State of Ohio.
11.02 Entire Agreement. This Agreement constitutes the entire contract between the
parties hereto, and may not be modified except by an instrument in writing signed by the parties
hereto, and supersedes all previous agreements, written or oral, if any, of the parties.
11.03 Time of Essence. Time is of the essence of this Agreement in all respects.
11.04 Assigmnent. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective heirs, legal representatives, successors and assigns.
11.05 Invalidity. In the event that any provision of this Agreement shall be held to be
invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this
Agreement.
11.06 Waiver. No waiver of any of the provisions of this Agreement shall be deemed,
nor shall the same constitute a waiver of any other provision, whether or not similar, nor shall
ix~anaoss ~
any such waiver constitute a continuing waiver. No waiver shall be binding, unless executed, in
writing, by the party making the waiver.
11.07 Headings. The section headings contained in this Agreement are for convenience
only and shall not be considered for any purpose in construing this Agreement. As used in this
Agreement, the masculine, feminine and neuter genders, and the singular and plural numbers
shall be each deemed to include the other whenever the context so requires.
11.08 Intentionally omitted.
11.09 Seller's IRS Section 1031/1033 Exchange. Buyer shall, if requested by Seller, but
at no cost to Buyer, cooperate with Seller to permit Seller to consummate and exchange of
property pursuant to IRS Section 1031/1033; provided that Buyer's obligation shall be limited to
the execution and delivery of documents only, and Buyer shall have no obligation to locate an
exchange property or to negotiate the acquisition thereof. Buyer shall not be responsible for any
tax or economic consequences associated with any such exchange, including but not limited to,
the trust instrument and related documents in connection therewith.
11.10 Survival. The warranties, representations, covenants and agreements set forth in
this Agreement shall not be cancelled by performance under this Agreement, but shall survive
the Closing and the delivery of the deeds of conveyance hereunder for a period of six (6) months
following the Closing.
11.11 Facsimile Signatures. The parties agree that this Agreement may be executed in
counter-parts and by facsimile signatures, provided that the original, executed (in blue ink) of
any such counter-parts and/or facsimile signatures shall be delivered to the other party within one
day following its execution. Upon satisfaction of the foregoing conditions, such counter part
and/or facsimile signatures shall be deemed original for all intents and purposes.
IN WITNESS WHEREOF, the parties have hereunto subscribed their names on the day
and year first aforesaid.
Signed in the presence of:
SELLER:
MDT REAL ESTATE MANAGEMENT LIMITED PARTNERSHIP,
an Ohio limited partnership
By: Andrew F. Thomas By: Paula T. Ferguson
Its:
Its:
{H1a22406.b)
National City Bank of Columbus, Ohio, as
Trustee of the WILLIAM MARVIN
THOMAS TRUST dated January 31, 1979
By:
Its:
BUYER:
CITY OF DUBLIN
an Ohio municipal corporation
By: Marsha Grigsby
Its: Acting City Manager
Attachments:
Exhibit "A": Site Plan
William M. Thomas, Jr. and Robert T.
Thomas, as Successor Trustees, of the
DOROTHY L. THOMAS TRUST dated
May 25, 2006
By: William M. Thomas, Jr., Successor
Trustee
By: Robert T. Thomas, Successor Trustee
(H1422406.6
Exhibit "A"
Site Plan
Parcel A and Parcel B =Parent Parcel
~ H0913885.4 ~
MDT Real Estate Management Real Estate Purchase Agreement
13.935 Acres on Post Road, Dublin, Ohio
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