Ordinance 34-10RECORD OF ORDINANCES
Ordinance No.
34 -10
Passed 20
AN ORDINANCE AUTHORIZING THE ACQUISITION OF
21.49 ACRES OF LAND LOCATED AT 4279 BRIGHT ROAD,
AUTHORIZING THE CITY MANAGER TO EXECUTE A REAL
ESTATE PURCHASE AGREEMENT, AND APPROPRIATING
FUNDS THEREFOR (HOLDER PROPERTY).
WHEREAS, a goal of City Council is to continue to acquire parkland for recreation, open
space and preservation of natural and man-made features; and
WHEREAS, the Holder -Wright Works, an ancient man-made landform that has critical
archaeological importance, is located on this land; and
WHEREAS, the Community Plan recommends the Holder -Wright Works be preserved;
and
WHEREAS, funding for the acquisition of the property has been programmed in the
City's Capital Improvements Program; and
WHEREAS, it is necessary to amend the annual appropriations measure 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 related closing documents related to the acquisition of the property
located at 4279 Bright Road as identified on the attached Exhibit.
Section 2 . There be appropriated from the unappropriated balance in the Parkland
Acquisition Fund the amount of $1,500,000 to account number 402 - 0210 - 780 -2510 for
the acquisition of 4729 Bright Road.
Section 3 . The Ordinance shall take effect and be in force in accordance with Section
4.04(b) of the Dublin City Charter.
Passed this day of e✓ , 2010
i
Mayor - Prtoing •
ATTEST:
Clerk of Council
art' OF uueuu
Office of the City Manager
5200 Emerald Parkway, Dublin, Ohio 43017
Phone: 614 - 410 -4400
To: Members of Dublin City Council
From: Terry D. Foegler, City Manager
Date: September 9, 2010
Initiated By: Marsha Grigsby, Director of Finance /Deputy City Manager
Memo
Re: Ordinance 34 -10 - Authorizing the Acquisition of 21.49 Acres of Land
Located at 4279 Bright Road (Holder Property), and Authorizing the City
Manager to Execute a Real Estate Purchase Agreement
Summary
As City Council is aware, the Administration has been working with the property owners for an
extended period of time in an effort to acquire the property located at 4729 Bright Road. As
stated in Ordinance 34 -10, the property includes the Holder- Wright Works, an ancient man -made
landform that has critical archaeological importance, a feature the City desires to preserve.
Additionally, the Billingsley Creek ravine traverses the property and is a location of importance
for its scenic and natural beauty.
As reflected in the attached Exhibit, the property will be acquired for 51.5 million. This agreed
upon amount is based on the appraisals the City had completed in January 2005 in the amount of
S 1,593,600 and in May 2008 in the amount of 51,391,000.
City Council has continued to place a high priority on the acquisition of parkland, and the
funding for 4729 Bright Road has been reserved in the Parkland Fund. The property tax revenue
generated from the City's inside millage is the main revenue source in the Parkland Acquisition.
The Ordinance includes language to provide the funding authorization necessary to acquire the
property.
The City and Washington Township have a longstanding history of working together in the
preservation of parkland. Washington Township has contributed financially to the acquisition of
several properties that have been acquired by the City and has committed to contribute S460,000
toward the acquisition of this property.
The closing for the property will be scheduled once the necessary surveys are completed and the
Phase I Environmental Site Assessment report is received.
Recommendation
Staff recommends passage of Ordinance 34 -10 at the second reading/public hearing on
September 27, 2010.
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT (the "Agreement ") is made and
entered into on the day of 2010 (the "Effective Date "), by and
between O. JOSEPHINE HOLDER, LLC, an Ohio limited liability company, whose address
is 4729 Bright Road, Dublin, Ohio 43016 ( "Seller"), and the CITY OF DUBLIN, OHIO
( "Dublin "), a municipal corporation duly organized and validly existing under the
Constitution and the laws of the State of Ohio (the "State ") and its Charter whose address
is 5200 Emerald Parkway, Dublin, Ohio 43017 ( "City ").
Background Information
A. Seller is the owner of the following tracts of real property located in Dublin,
Ohio: (a) an approximate 19.41 acre tract of improved real property, being commonly
known as 4729 Bright Road, Dublin, Ohio 43016 (Tax Parcel No. 273 - 8414), and (b) an
approximate 2.079 acre tract of unimproved real property, being known as Tax Parcel No.
273 -8256, which tracts are legally described on Exhibit "A " , attached hereto and made a
part hereof (said real property, together with all appurtenances and hereditaments thereto,
shall collectively be referred to as the "Real Property "). Exhibit "B " , attached hereto and
made a part hereof, is a site plan, setting forth a general depiction of the size, location and
configuration of the Real Property.
B. Seller desires to sell to the City, and the City desires to purchase from Seller,
all of Seller's right, title and interest in the Real Property, at the price and on the terms and
conditions hereinafter set forth.
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 REAL PROPERTY
1.01 Agreement On the terms and conditions set forth below, Seller hereby agrees
to sell to the City, and the City hereby agrees to purchase from Seller, the Real Property.
ARTICLE If
PURCHASE PRICE
2.01 Amount of Purchase Price The purchase price for the Real Property shall be
One Million Five Hundred Thousand Dollars ($1,500,000.00), payable to Seller at Closing,
in immediately available funds or by cashier's check. Said purchase price shall be fixed at
such amount and shall not be subject to any adjustments for prorations, credits, and /or
fe132?601.5 )
allowances with the intent being that Seller receives a check or wire transfer for the full
One Million Five Hundred Thousand Dollars ($1,500,000.00) at Closing.
ARTICLE III
CONTINGENCIES
3.01 Contingent Agreement This Agreement shall be completely contingent upon
the City's satisfaction of or the City's waiver of the contingencies set forth in Section 3.02
below (the "Contingencies "), within sixty (60) days after the Effective Date (the
"Contingency Period"). The date upon which all Contingencies are 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 Repo r# . The City shall, at its cost, obtain a
satisfactory Phase I Environmental Site Assessment of the Real Property;
(b) Legal Approval The City shall, at its cost, obtain evidence satisfactory to the
City that the survey (if any) and legal description(s) of the Real Property will be approved
by the necessary authorities for purposes of transferring the Real Property from Seller to
the City;
(c) City Approval The City of Dublin City Council shall approve of the purchase
of Real Property;
(d) City Appropriation of Funds The City shall appropriate funds to acquire Real
Property;
(e) Other Municipal Approvals The City shall obtain evidence satisfactory to the
City that the survey and legal description of Real Property will be approved by the
necessary authorities for purposes of transferring Real Property from Seller to the City; and
(f) Miscellaneous The City shall be satisfied that Real Property contains no
matters which would interfere with the City's intended use of Real Property.
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, the City gives to Seller written notice of the City'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.
ARTICLE IV
SUBMISSION MATERIALS
4.01 Seller's Cooperation Seller shall, within ten (10) days after the Effective Date,
submit to the City the following information and /or materials, to the extent the same is
available, for use by the City in preparation for the purchase of the Real Property.
(a) Surveys of the Real Property;
(b) Environmental studies of the Real Property;
(c) A copy of the title insurance policy issued upon Seller's acquisition of the
Real Property; and
(d) Geophysical mapping of the Real Property prepared by Ohio Archaeological
Consultants.
Seller hereby agrees to cooperate with the City in all respects during the term of this
Agreement, including Seller's joining in the execution of any and all reasonable
applications, instruments, licenses and documents contemplated pursuant hereto.
ARTICLE V
EVIDENCE OF TITLE
5.01 Title Commitment The City shall, at its sole cost and expense, obtain an
American Land Title Association (ALTA) Commitment for Title Insurance (the "Title
Commitment") issued by a title insurance company selected by The City (the "Title
Insurance Company "), pursuant to which the Title Insurance Company shall commit to
issue an ALTA Owner's Title Insurance Policy (the "Title Policy "), certified to at least the
Effective Date of this Agreement, in the full amount of the purchase price, showing in Seller
good and marketable title to the Real Property, free and clear of the standard printed
exceptions contained in Schedule B of said Title Commitment and Title Policy, and free
and clear of all liens, charges, encumbrances and clouds of title, whatsoever, except the
following:
(a) Those created or assumed by the City;
(b) Zoning ordinances, legal highways and public rights -of -way which do not
interfere with the City's proposed development and operation of the Real
Property;
(c) Real estate taxes which are a lien on the Real Property but which are not yet
due and payable; and
(d) Easements and restrictions of record acceptable to the City.
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If the legal description for the Real Property includes more than one parcel, the Title
Commitment shall state affirmatively that all parcels of land are contiguous and that on the
Closing Date, the Real Property shall have direct access to dedicated public highways that
abut the Real Property. The Title Commitment shall fully and completely disclose all
easements, negative or affirmative, rights -of -way, ingress or egress or any other
appurtenances to the Real Property, and shall provide insurance coverage in respect to all
of such appurtenant rights. The Title Commitment shall include the results of a special tax
search and examination for any financing statements filed of record which may affect the
Real Property.
5.02 Endorsement at Closing Within ten (10) days after the Contingency Date (if
this Agreement is not then terminated) and at the Closing, the City shall obtain
endorsements to the Title Commitment updating the commitment to the respective date
and showing no change in the state of the title to the Real Property. 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 the City.
5.03 Survey City may, at its sole cost and expense, obtain a current survey of the
Real Property, prepared by a surveyor selected by the City. The survey shall include a
legal description of the Real Property and shall be certified by the surveyor to the City and
the Title Insurance Company. Subject to the approval of the Title Insurance Company, the
legal description set forth on the survey shall be used in the Title Commitment and Title
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) The Real Property is not subject to any discrepancies, conflicts in
boundaries, shortages in area, nor subject to any encroachments of any
kind;
(b) Total acreage of the Real Property, 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 the Real Property or providing access thereto,
and all adjacent landowners.
5.04 Defects In the event that an examination of either the Title Commitment
(including any endorsements) or the survey obtained hereunder discloses any matter
adversely affecting title to the Real Property, or if title to the Real Property is not
marketable, or if the Real Property is subject to liens, encumbrances, 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
(M333 ?601.5
time, not to exceed thirty (30) days after written notice thereof, within which to cure or
remove any such Defects. In the event Seller is unwilling or unable to cure or remove the
Defects within said thirty (30) day period, Seller shall immediately give notice of Seller's
inability to the City and thereafter, the City shall have ten (10) days after receipt of such
notice within which to make its election either:
(a) To accept title to the Real Property subject to such Defects; or
(b) To withdraw from this transaction and terminate this Agreement, without
prejudice, however, to any rights or remedies which the City may have at law
or in equity.
ARTICLE VI
DEED AND OTHER DOCUMENTS
6.01 Limited Warranty Deed Seller shall, at the Closing, convey fee simple title to
the Real Property to the City by a duly and validly executed, recordable limited warranty
deed, free and clear of all liens and encumbrances, except those permitted pursuant to the
provisions of Section 5.01 hereof (the "Deed ").
6.02 Declaration At the Closing, the City and Seller shall execute a Declaration
in substantially the form attached hereto as Exhibit C (the "Declaration "). The City and
Seller acknowledge that the restrictions set forth in the Declaration shall only apply to the
property located north of the stream traversing the Real Property (as generally shown on
the attached site plan) and that the exact boundaries of the area to be encumbered by the
Declaration shall be based upon a survey of the area north of such stream obtained by the
City and as agreed upon by Seller, in its reasonable discretion.
6.03 Other Documents The City 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 a closing statement, Seller's affidavit regarding liens, unrecorded
matters and possession and, if requested, Seller's affidavit regarding the warranties and
representations set forth in Article XI hereof.
ARTICLE VII
POSSESSION AND INSPECTION
7.01 Possession at Closing The City shall be entitled to full and exclusive
possession of the Real Property as of the Closing Date. For and during the continuance of
this Agreement, Seller shall afford all representatives of the City free and full access to the
Real Property, for inspection and examination and other related purposes, at reasonable
times, and at the sole cost and expense of the City. The City shall be responsible for any
and all costs and expenses associated with the repair of any damage to the Real Property
as a direct or indirect result of said access.
(H192d601.5
ARTICLE Vlll
CLOSING
8.01 Closing Date The purchase and sale of the Real Property shall be closed (the
"Closing ") within thirty (30) days after the Contingency Date, which Closing date 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 5.04 hereof (the "Closing Date "). The
Closing shall be at such time and place as the City and Seller may mutually agree upon.
ARTICLE IX
APPORTIONMENTS AND ADJUSTMENTS
9.01 Adiustments at Closing On the Closing Date, the City 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 pay or credit against the
purchase price all delinquent real estate taxes, together with penalties and
interest thereon.
(b) Utilities Seller shall pay for the cost of all municipal services and public
utility charges (if any) due through the Closing Date;
(c) The City's Expenses The City shall, at the Closing (unless previously paid),
pay the following: (i) the recording fees required for recording the Deed and
Declaration; (ii) the cost of furnishing the Title Commitment and Title Policy;
(iii) the fee, if any, charged by the Title Insurance Company for closing the
transaction contemplated herein; (iv) the cost of any transfer or conveyance
fee required to be paid in connection with the recording of the Deed; and (v)
the cost of obtaining the survey, if any.
(d) Brokers Seller hereby warrants and represents to the City that Seller has
not, with the exception of Pam Kreber and Scott Blackwell of Trademark
Real Estate LLC, engaged or dealt with any broker or agent in regard to this
Agreement ( "Broker"). The City hereby agrees to pay Broker one percent
(1 %) of the purchase price hereunder at the Closing. Seller shall pay any
other commissions and /or fees due to Broker and further agrees to indemnify
the City and hold the City harmless against any liability, loss, cost, damage,
claim and expense (including, but not limited to, attorneys' fees and costs of
litigation) which the City shall ever incur or be threatened with because of
any claim of Broker or any other broker or agent claiming through Seller,
whether or not meritorious, for any such fee or commission. The City hereby
represents and warrants to Seller that the City has not engaged or dealt with
any broker or agent in regard to this Agreement.
ARTICLE X
EMINENT DOMAIN AND CASUALTY
{M 928,0 .s 1
10.01 Taking By Eminent Domain If, prior to the Closing, eminent domain
proceedings shall be threatened or commenced against the Real Property, or any part or
portion thereof by a governmental authority other than the City, the City shall have the
option (a) to elect to proceed with this transaction, in which event any compensation award
paid or payable as a result of such eminent domain proceedings shall be the sole property
of the City, or (b) to terminate this Agreement, in which event any compensation award
paid or payable as a result of such eminent domain proceedings shall be the sole property
of Seller. Seller agrees that it shall give to the City written notice of any such threatened or
actual eminent domain proceedings within ten (10) days after Seller first becomes aware
thereof, and upon the giving of such notice, the City shall then have thirty (30) days within
which to exercise the options granted in this Section 10.01. If the City fails to exercise
such options within said thirty (30) day period, this Agreement shall terminate and
thereafter both parties shall be released from further liability or obligation hereunder.
10.02 Casualty. in the event of any damage or destruction to the improvements on
the Real Property ( "Building ") prior to the Closing, the cost or repair of which is Five
Thousand Dollars ($5,000.00) or less, Seller shall promptly repair any damage occasioned
thereto. In the event any damage to the Building occurs prior to the Closing, the cost of
which to repair is more than Five Thousand Dollars ($5,000.00), then in such event the City
shall have the right to (a) elect to receive an adjustment to the purchase price at Closing in
an amount equal to the cost to repair such damage, as reasonably determined by the City
and Seller, or (b) elect to terminate this Agreement, in which event neither party shall have
further liability or obligation hereunder.
(X'328601.5 }
ARTICLE XI
WARRANTIES AND REPRESENTATIONS OF SELLER
11.01 Warranties and Representation In addition to any other representation or
warranty contained in this Agreement, Seller, to the best of their actual knowledge, hereby
represents and warrants as follows:
(a) Neither Seller nor any agent, employee or representative of Seller, has
received any notice or notices, either orally or in writing, from any municipal,
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;
(b) 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, the Real Property, under any agreement or
other instrument to which Seller is a party or by which Seller or the Real
Property might be bound;
(c) Neither Seller, nor any agent, employee 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 the Real
Property;
(d) Seller has no knowledge of any fact or condition which would result in the
termination or limitation of the existing pedestrian and /or vehicular access to
the Real Property from abutting public roads;
(e) No other person or entity other than Seller currently owns or has any legal or
equitable interest in the Real Property and no other person or entity other
than the City has or will have any right to acquire the Real Property, or any
portion thereof;
Except as provided herein for real estate taxes to be paid by City,
(f) / �U—Uaxes payable with respect to the operation, ownership or control of the
Real Property which are allocable to the period ending on the Closing Date,
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;
(g} 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 the City of possession and title to the
!HX92 c:s
Real Property have each been duly authorized by such persons or authorities
as may be required, and on the Closing Date, Seller shall provide the City
with certified resolutions, or other instruments, in form satisfactory to the City,
evidencing such authorization;
(h) Through and until the Closing Date, Seller shall not enter into any easement,
lease or other contract pertaining to the Real Property;
(i) Seller has no knowledge of any hazardous waste, hazardous substance, or
hazardous material located in, on or about or generated from the Real
Property which may require remediation or which may result in penalties
under any applicable law;
(j) Seller shall not, without the prior written consent of the City, alter the natural
topography and vegetation currently existing on, in or about the Real
Property, 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 the Real
Property; and
(k) Seller is not a "Foreign Person" as that term is defined in the Foreign
Investment in Real Property Tax Act.
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 Deed. All representations and warranties set forth in
this Article XI shall be true and correct as of the date hereof and as of the Closing Date,
and at Closing, if requested by the City, Seller shall so certify, in writing, in form reasonably
requested by the City. Seller hereby agrees to indemnify and hold the City harmless from
and against any and all claims, demands, liabilities, costs and expenses of every nature
and kind (including attorneys' fees) which the City may sustain at any time (i) as a result of,
arising out of or in any way connected with the operation, ownership, custody or control of
the Real Property prior to the Closing Date; or (ii) by reason of the untruth, breach,
misrepresentation or nonfulfillment of any of the covenants, representations, warranties or
agreements made by Seller in this Agreement or in any documents or agreements
delivered in connection with this Agreement or with the closing of the transaction
contemplated hereby.
11.02 Breach of Warranties Prior to Closing If, during the pendency of this
Agreement, the City determines that any warranty or representation given by Seller to the
City under this Agreement shall be untrue, incorrect or misleading, in whole or in part, the
same shall constitute a default by Seller hereunder. In such event, the City may give
written notice thereof and shall thereafter have such rights and remedies as may be
available to the City as provided herein, at law or in equity, including, but not limited to, the
right to receive compensation for damages and/or the right to terminate this Agreement.
ARTICLE X11
NOTICES
12.01 Notice Procedure Any notices required hereunder shall be in writing, shall
be transmitted by certified mail, postage prepaid, return receipt requested, or by nationally
recognized overnight courier, and shall be deemed given when received or when receipt is
refused, and shall be addressed to the parties as follows:
(a) If intended for Seller, to:
O. JOSEPHINE HOLDER, LLC
160 Tulane Road
Columbus, Ohio 43202
Attn: Joan Harless, Member
With a copy to:
Kagay, Albert, Diehl & Groeber
6877 North High Street, Suite 300
Worthington, Ohio 43085
Attn: John A. Groeber, Esq.
(b) If intended for the City, to:
CITY OF DUBLIN, OHIO
5200 Emerald Parkway
Dublin, Ohio 43017
Attn: City Manager
With a copy to:
Schottenstein, Zox & Dunn, LPA
250 West Street
Columbus, Ohio 43215
Attn: Elaine M. Darr, Esq.
ARTICLE X111
GENERAL PROVISIONS
13.01 Governinq 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.
Ii:93R6C39
13.02 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.
13.03 Time of Essence Time is of the essence of this Agreement in all respects.
13.04 Assignment This Agreement shall be binding upon and inure to the benefit
of the parties hereto, their respective heirs, legal representatives, successors and assigns.
13.05 Invalidi . 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.
13.06 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 any such waiver constitute a continuing waiver. No waiver shall be
binding, unless executed, in writing, by the party making the waiver.
13.07 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.
13.08 Memorandum Upon request of either party hereto, the City and Seller shall
execute a recordable memorandum of the terms hereof, which memorandum may be
placed of record in any public office within the county wherein the Real Property is situated.
13.09 Counterparts: Facsimile /E -Mail Execution This Agreement may be executed
in any number of counterparts, all of which taken together shall be deemed to be an
original. Signatures transmitted by facsimile or e-mail shall have the same effect as
original signatures.
[Signatures on following pages.]
j:uexaso�.s �
IN WITNESS WHEREOF, the parties have hereunto subscribed their names on the
day and year first aforesaid.
SELLER:
0. JOSEPHINE HOLDER, LLC
BY:
PRI NA
ITS:, I h
Date:
THE CITY:
CITY OFFDD
BY: //
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1BGAL DESCRI117MN:
PARCELI: Situated 12 the ComyofFiauldin Stam of Ohio, andToamship
of Perry: Being goaded in Range 19.T4p. 2Y4 TowatdpZ Lot#IZ I% and 17 amt being
bounded and descrbed as folims: Being the middle or neater portion of Iands of Joseph
and Sarah Ferric Bounded and dambW as fonoasc Beginning at a lima stone with brick
under d.bftthe sooth wt, mrnerOf said Joseph and SwabFef:it traq than partofwhieh
adjoins land owned by LN. Hambaough; thcose South W4613. along the south tine of
said Joseph and Sarah Ferris land term hundred and forty svmn (747) feet to a has 1=
mravtmd=W by broken brick thence North 30' 10B., along ftwca line of landalloBed
to Leroy Ferris, fourteen hundred (1400) feat to a lime scoot, corner with brick under ik
where formerly a comer tree stood; thence Norris 88 West along the South Gne of lead
formerly awned by lax. L Andrew , fire hndred forty six (546) feet to a line stone With
brick under it, thence SMIlh 30 w West nine hundred eighty (980) fort to a lima stone with
brick under Ile thence W 45 West cwo lamdmd thinythree (293) feet on a time stox comer
with brick under it; dsence South 78 fact E aloag the Fast line of land owned by I- W.
Hambetough, three hundred and ai any nine (399) feet to the place of beginning situated
in Towahip Z Range 19. Franklin County, State of Ohio, comma n 19.411100 acres of
land.
PARCEL 26 Situated in the State of Ohio, County of Franklin, and the village of
Du4n and being a past of Lot No. 16 of the Second Quarter of Township Z Range 19,
United States Military lance also being a part of that culain 2.771 Ace Tract as the same
as shown of record in Head nook 2981. page 684 records of the Recorder's Office, Franklin
County. Ohio and being more particularly described as Waits:
Begierdag at a point at the southwest comer of Grandee Cliff Fssatm No. Z m the _
snore as shown of mcurd in Flat Book 33, page 123, records of the Recorder's Office,
Franklin C Ohi thence from said point of beginning. S. 30.22 W. a distance of
7539 R to not iron pin in the northerly right o way of Interstate 270. theakx; a
Northwesterly direction mad with a cane besting to the left having a radius of 12,427.67 R
and Wong the northerly rigbhabway of Interstate 274 the long chord which bears N. 603
13' W. a distance a 726.44 (L to an Iron pin at the sonthwenctly comer of the Above
mentioned 7.771 Acre Tract: thence N. 21' 48' 19' E and along the weterly Ilse of said .
2771 Ann Tract, a distance of 178.83 fL to an Goa pin at the northwesterly comer of said
2.771 Acre Tract; thence S. 58' 32' 0M a &0t an of 74798 R to the point of beginning .,
and conmimng 2079 Acres and sabjecttoan easemerns and /orrestricdom shown of record.
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Holder Property -21.49 Acres Development Land Addendum
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Parcel No. 273 - 008414 (19.41 Acres)
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Parcel No. 273 - 008256 (2.08 Acres)
Holder Property -21.44 Acres Development Land Addendum
EXHIBIT "C"
DECLARATION
This Declaration (this "Declaration ") is made on this day of
2010 by the CITY OF DUBLIN, OHIO, an Ohio municipal
corporation, its successors and assigns (the "City ").
Recitals
A. The City owns certain property located in Franklin, County, Ohio as legally
described on Exhibit "A" attached hereto and made a part hereof (the "Property ") and
graphically depicted on Exhibit "B" attached hereto and hereby made a part hereof.
B. The City acquired the Property from O. Josephine Holder, LLC (the `Seller")
pursuant to that certain Limited Warranty Deed recorded as Instrument No.
in the Franklin County, Ohio Recorders Office (the "Sale ").
C. In connection with the Sale, the City agreed to restrict the use of the Property
as set forth herein, with the intent that such restrictions run with the land.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the City, for itself and its successors and assigns as owners of
the Property, hereby agrees as follows:
§1. Use Restrictions Except as otherwise provided herein, the City hereby
agrees that the Property shall be used exclusively and in perpetuity for "passive, open
space' public parkland and generally preserved in its "natural state" or scientific,
educational, aesthetic and other municipal purposes related thereto. As herein used, the
term "passive, open space" is intended to mean that no trees shall be arbitrarily cut down
or removed except for dead, diseased, or decayed trees or as deemed reasonably
necessary or appropriate by the City, in which event such trees may be replaced with new
trees as deemed necessary or appropriate by the City. As herein used, the term "natural
state" is intended to mean that no commercial billboards, or other permanent building
structures or buildings may be erected on the Property, subject to the immediately following
paragraph and the existing house located thereon as of the date hereof (the "Ferris
House "), as the same may be modified as provided herein.
Nothing contained in this Section 1 shall be deemed to prohibit the City or its
designee from removing invasive vegetation; trimming trees; constructing improvements
permitted by this Declaration; mowing; planting or preserving trees and other vegetation;
constructing, maintaining, repairing and replacing pedestrian trails, picnic shelters,
interpretive centers, restrooms, and other building improvements typically found in public
parks, including, without limitation, paths, walks, bike paths, scenic overlooks, observation
stations, picnic areas and related improvements, and signage and parking areas; marking
boundaries of historic significance; permitting forces of nature to alter the natural state of
[81038601.5 1
the Property; maintaining the existing stream bank; controlling unauthorized access to the
Property by all persons or parties, including the installation, maintenance, repair and
replacement of fencing; permitting educational, scientific and other municipal programs
and /or tours or special events on the Property in accordance with policies and procedures
adopted by the City from time to time; constructing, maintaining, repairing and replacing
improvements specifically permitted by this Declaration and taking any other actions that
the City deems reasonably necessary or appropriate and are consistent with the terms of
this Declaration. The parties acknowledge that the holder of any easement existing as of
the date hereof shall not be subject to the foregoing restrictions but the City shall use
reasonable efforts to request that such holder comply with the terms hereof.
§2. Earthworks The City acknowledges that the Property contains certain
significant historic and archaeological resources, including but not limited to prehistoric
mound and earthworks (the "Earthworks "). At all times hereafter, the City shall maintain the
Earthworks in accordance with Section §1 above. Notwithstanding the foregoing, the City
shall have the right, but not the obligation, to reconstruct all or portions of the Earthworks,
provided the City partners and /or consults with the appropriate organization(s) that focuses
on the preservation and protection of earthwork complexes or archeological sites, such as
the Hopewell Culture National Historic Park which is part of the National Park Service U.S.
Department of the Interior, as the City deems reasonably necessary or appropriate.
Notwithstanding the foregoing, the City shall not be liable for any damages to, destruction,
loss or disposition of the Earthworks.
The City shall in good faith, from time to time, entertain requests from professional
archaeological, historic and /or educational professionals and groups to access the Property
to conduct educational and /or archaeological programs and /or research. If the City permits
such programs and /or research to be conducted, then the City reserves the right to impose
whatever conditions upon such entry to the Property as the City deems necessary or
appropriate under the circumstances. Nothing contained herein shall obligate the City to
permit any physically invasive activities, but the City shall_have the right to permit the same
to be performed in accordance with the immediately preceding sentence. If the City, in its
discretion, determines that such programs and /or research are not appropriate (considering
factors such as the interference with the City's and public's use of the Property, the
physical impact of the program on the Earthworks, Property and Personal Property,
whether the programs and /or research will violate the terms of this Declaration and any
other factors deemed important by the City), then the City may reject such request, without
any liability hereunder.
(HI,28603.5 j
§3. Ferris House The City shall use good faith efforts to restore the original
portion of the Ferris House within ten (10) years after the date hereof, which restoration
shall be consistent with the historic character of such structure and in a manner, scope and
at times as determined by the City. At all times hereafter, the City shall diligently maintain
and preserve the Ferris House to prevent waste. The City shall endeavor to notify Joan
Harless and Kaye Myers, who are the members of the Seller, approximately thirty (30) days
prior to the commencement of the restoration of the Ferris House. Joan Harless and Kaye
Myers shall, within thirty (30) days after completion of the restoration, provide the City with
any historic furniture, fixtures, equipment and other personal property originally associated
with the Ferris House and /or Property within their possession that they would like to be
displayed at the Property (the "Personal Property "). All Personal Property provided to the
City shall be deemed to be by the City without the necessity of any further
documentation and /or payment by the City. The City shall not be liable for any damages
to, destruction, loss or disposition of the Personal Property.
§4. Other Improvements The City shall endeavor to construct and /or perform,
in a manner, scope, time and locations determined by the City, the following within ten (10)
years after the date hereof (the "Property Improvements "): (a) a pathway to the
creek/stream on the Property and any other areas of the Property deemed historically
and /or archaeologically significant by the City; and (b) a sculpture park grounded in natural
landscape and earthworks or other installation determined by the City that is consistent
with and /or complimentary to the historical and /or archaeological character of the Property.
§5. Identification For purposes of any educational material disseminated at the
Property and /or signage located on the Property, the City agrees to identify (a) the
creek/stream traversing the Property as "Wright Run ", and (b) the Earthworks located on
the Property as "The Holder- Wright Earthworks Complex ".
§8. Roadway Improvements The City shall have the right, from time to time,
without being in violation hereof, to designate portions of the Property as right -of -way for
the construction, maintenance, repair and replacement of certain roadways, together with
all improvements typically associated therewith, and specifically including, without
limitation, the creation of turn lanes and /or future modifications of Bright Road (the
"Roadway Improvements "). In connection with the construction, maintenance, repair and
replacement of the Roadway Improvements, the City shall have the right, to alter the
topography of the Property, fill, excavate, and remove top soil, sand, gravel, rock, minerals
or other materials from the Property. Further, the City shall have the right to grant a variety
of exclusive and non - exclusive, public and private, permanent and temporary easements
encumbering the Property as the City deems necessary or appropriate, including, without
limitation, easements for the right to maintain, repair and replace sanitary sewers,
manholes, telephone and electric lines, water wells, gas lines and other utility lines or
mains (provided, that the area needed to access, maintain and repair said utilities shall be
the minimum necessary to accomplish same as approved by the City and, upon completion
thereof, any disturbed areas shall be restored to their previous state or as near as practical
thereto under the circumstances). Upon exercising the rights set forth in this Section 6, the
?H122860i.5
City shall at all times use best efforts to preserve and protect the Earthworks and the Ferris
House as contemplated by the terms and conditions of this Declaration.
§7. Special Events The City hereby agrees that Stephanie Harless, daughter of
Joan Harless, shall have the one -time right, at her sole cost and expense but without
charge by the City, to have her wedding ceremony and /or wedding reception held upon the
Property for a period not to exceed two days, by providing to the City no less than nine (9)
months advance written notice thereof (and further provided that the proposed date of such
event does not conflict with any material event theretofore scheduled on the Property,
provided that the City shall endeavor to reschedule such event if there is such a conflict).
As an express condition of such use of the Property, Stephanie Harless shall, at her sole
cost and expense, (a) be responsible for obtaining any necessary permits required in
connection therewith, including, without limitation, tent and alcohol permits, and (b) execute
any documentation required by the City governing the use of the Property, which
documentation may require evidence of insurance, indemnification of the City from and
against any and all claims and damages which arise from the use of the Property and other
matters, and (c) promptly returned the Property to substantially the condition immediately
prior thereto.
No such wedding ceremony and /or wedding reception shall damage the Property,
Personal Property and any improvements located thereon. If no such wedding ceremony
and /or reception is held within thirty (30) years after the date hereof, then the rights set
forth in this Section 7 shall be forever null and void.
Subject to applicable law, the City hereby agrees that any member of the Seller, O.
Josephine Holder, LLC, as of the date hereof, and any immediate family member of such
member shall have the right, at their sole cost and expense and through the seventieth
(70 anniversary of the date hereof, to have their remains scattered upon the Property, by
providing to the City no less than thirty (30) days' advance written notice thereof. In such
event, the family of the decedent shall, at their sole cost and expense, be solely
responsible for obtaining any necessary permits required in connection therewith. Further,
as an express condition of such use, such decedent's family shall execute any
documentation required by the City governing the scattering of such remains on the
Property and scatter such remains in compliance with applicable law. As of the date
hereof, the entity "0. Josephine Holder, LLC" is comprised of the following two members:
Kaye Myers and Joan Harless.
§8. Notices Any notices required hereunder shall be in writing, shall be
transmitted by certified mail, postage prepaid, return receipt requested, or by nationally
recognized overnight courier, and shall be deemed given when received or when receipt is
refused, and shall be addressed to the parties as follows:
(a) if intended for the City, to:
City of Dublin
5200 Emerald Parkway
(x':938601.5 )
Dublin, Ohio 43017
Attn: City Manager
(b) If intended for Kaye Myers, to:
Kaye Myers
240 North Dellrose Street
Wichita, Kansas 67208 -3922
(c) If intended for Joan Harless, to:
Joan Harless
160 Tulane Road
Columbus, Ohio 43202
§9. Enforcement If the City fails to observe the covenants and restrictions set
forth herein, then the Beneficiaries shall have the right to enforce, by any proceedings at
law or in equity, all restrictions, conditions and covenants set forth herein. Notwithstanding
anything to the contrary contained in this Section 10, the Beneficiaries shall not exercise
any of their remedies set forth herein unless the City fails to observe or perform any
provision, covenant or condition of this Declaration required to be observed or performed
by the City and such failure continues for sixty (60) days after written notice thereof from
the Beneficiaries to the City; provided, however, that if the nature of such default is such
that the same cannot reasonably be cured within a sixty (60) day period, the Beneficiaries
shall not exercise any of their remedies set forth herein if the City commences such cure
within such sixty (60) day period and thereafter rectifies and cures such default with due
diligence.
The term `Beneficiaries" as used herein shall include but will not be limited to O.
Josephine Holder LLC, an Ohio limited liability company, its members, Kaye Myers and
Joan Harless, their successors, assigns, agents, personal representatives, spouses and
lineal descendants.
§10. Separability Each provision of this Declaration and the application thereof
to the Property are hereby declared to be independent of and severable from the
remainder of this Declaration. if any provision contained herein shall be held to be invalid
or to be unenforceable or not to run with the land, such holding shall not affect the validity
or enforceability of the remainder of this Declaration.
§11. Governing Law This Declaration shall be governed by, and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the City has caused this Declaration of Restrictions to be
executed this day of , 2010.
The City:
City of Dublin, Ohio, an Ohio municipal
{H99 8=-5
(4ig2moi.5 {2
corporation
i
Terry Foegler, Manager
STATE OF OHIO )
COUNTY OF )
FRANKLIN
The foregoing instrument was acknowledged before me this day of
2010, by Terry Foegler, the City Manager of the City of Dublin, Ohio,
an Ohio Municipal Corporation, for and on behalf of said Municipal Corporation.
Notary Public
This instrument was prepared by:
Gregory S. Baker, Esq.
Schottenstein, Zox & Dunn, LPA
250 West Street
j
Columbus, Ohio 43215
614 462 -2344
(4ig2moi.5 {2