OPTION AGREEMENT



OPTION AGREEMENT

This Option Agreement (“Agreement”) is made as of __________, 2001 by and between the BOARD OF PARK COMMISSIONERS OF THE COLUMBUS AND FRANKLIN COUNTY METROPOLITAN PARK DISTRICT, having offices at 1069 West Main Street, Westerville, Ohio 43081 (“Buyer”), and _____________ having an address of ______________________________________ (“Seller”).

In consideration of the mutual promises, covenants, and agreements hereinafter set forth, and for other good and valuable consideration, Seller and Buyer agree as follows:

1. Grant of Option. Upon the terms and subject to the conditions set forth in this Agreement, Seller hereby grants to Buyer the exclusive option to purchase (“Option”) all of Seller’s right, title and interest in and to the approximately ____ acre tract of real property located at _________________ (the “Property”) as described on Exhibit A, attached hereto and incorporated herein by this reference. The foregoing Option may be exercised by Buyer at any time during the Option Period (as that term is hereafter defined). For the purposes of this Agreement, the “Option Period” will be deemed to refer to the period beginning on the date hereof and continuing for _____ days thereafter. Buyer will exercise the Option, if at all, by delivering written notice thereof (“Exercise Notice”) to Seller during the Option Period. The closing of Buyer’s purchase of the Property (the “Closing”) will occur at the time and in the manner described in Paragraph 4 of this Agreement. In consideration of Seller’s grant of the Option, Buyer hereby agrees that coincident with the parties’ execution of this Agreement it will pay Seller cash in the amount of $ ______________ (the “Option Consideration”). The Option Consideration will be applied as a credit against the purchase price payable by Buyer for its purchase of the Property. Notwithstanding anything contained herein to the contrary, Buyer’s obligation to purchase the Property in the event Buyer exercises the Option shall be subject to the satisfaction or waiver of the contingencies described herein.

2. Purchase Price. The purchase price of the Property shall be $_____________ payable in cash or other available funds at Closing (as defined in Paragraph 4).

3. Contingencies. Buyer’s obligation to purchase the Property is subject to the satisfaction or waiver by Buyer of the contingencies described herein (the “Contingencies”). Buyer shall use reasonable efforts to satisfy the Contingencies or allow Seller to satisfy the Contingencies to be satisfied by it; provided, however, that with respect to any Contingency whose satisfaction or waiver requires Buyer’s approval or determination, the satisfaction or waiver of such Contingency shall be within Buyer’s sole discretion.

a. Evidence of Title. Within twenty (20) days of the Exercise Notice date, or such longer

period as agreed to by Buyer and Seller, Seller shall provide to Buyer at Seller’s expense a commitment for an owner’s policy of title insurance issued by a title insurance company selected by Buyer (the “Title Company”) with respect to the Property (the “Title Commitment”). The Title Commitment shall be certified to within ten (10) days prior to Closing with endorsement as of 8:30 A.M. on the business day prior to the date of Closing and shall show in Seller marketable title in fee simple free and clear of all liens and encumbrances except: (i) those created by or assumed by Buyer; (ii) those specifically set forth in this Agreement; (iii) zoning ordinances; (iv) legal highways; and (v) covenants, restrictions, conditions and easements of record which do not interfere with or restrict the use of the Property contemplated by Buyer. If title to all or part of the Property is unmarketable, as determined by Ohio law with reference to the Ohio State Bar Association’s Standards of Title Examination, or is subject to liens, encumbrances, easements, conditions, restrictions or encroachments other than those excepted by this Agreement, Seller shall within thirty (30) days after written notice thereof, remedy or remove any such defect, lien, encumbrance, easement, condition, restriction or encroachment, or obtain title insurance without exception therefor. At Closing, Seller shall sign an affidavit with respect to off-record title matters as required by the Title Company and Buyer. The issuance of a title insurance policy pursuant to the Title Commitment (the “Title Policy”) is a condition precedent to Buyer’s obligation to proceed to Closing under this Agreement. The Title Policy shall be in a form acceptable to Buyer and in the amount of the Purchase Price, showing title to the Property vested of record in Buyer in fee simple, subject only to any matters approved or waived by Buyer, any matters shown on the Survey and not objected to by Buyer and any other matters that Buyer has approved in writing.

b. Survey. Within thirty (30) days of the Exercise Notice date, or such longer period as

agreed to by Buyer and Seller, Seller shall, at its own cost and expense, furnish Buyer with a survey of the Property, together with certification of the surveyor as may be required by Buyer (the “Survey”). The Survey shall satisfy the most recent “Minimum Standard Requirements for ALTA/ACSM Land Title Surveys,” jointly established and adopted by ALTA and ACSM, shall meet the accuracy requirements of a Class A Survey as defined therein. The survey shall also be prepared as required by the _______ County Engineer to permit legal transfer of the property. If the Survey reveals any exceptions to title that are not acceptable to Buyer or any matters affecting the Property that are not acceptable to Buyer (“Survey Exceptions”), Buyer may notify Seller of such Survey Exceptions within thirty (30) days after Buyer’s receipt of the last of the Title Commitment or Survey (the “Survey Notice”), whereupon Seller shall have the right, but not the obligation, within thirty (30) days after receipt of the Survey Notice (the “Survey Cure Period”), to cure any disapproved Survey Exceptions. If Seller does not cure such Survey Exceptions within the Cure Period, or notifies Buyer that it does not intend to cause such cure, Buyer shall have the right to waive the Survey Exception or terminate this Agreement and receive the Option Consideration.

c. Environmental Conditions. Buyer shall determine on or before the end of the

Contingency Period whether the soils, ground water, topography and geology of the real property on or about the Property are acceptable to Buyer. If such environmental condition is not acceptable to Buyer, buyer shall notify Seller of such during the Contingency Period, whereupon Buyer shall have the right to terminate this Agreement.

d. Inspection. Buyer shall have the right to inspect the Property at any time during the

Contingency Period and shall promptly notify Seller of any objections Buyer has as to the condition of the Property. If Seller fails to cure the components of the Property subject to Buyer’s objection to Buyer’s satisfaction within thirty (30) days notice thereof, or the objections are not reasonably capable of cure, Buyer shall have the right to terminate this Agreement.

e. Easements; Access Rights. Buyer shall secure any and all easements, rights of way,

consents, amendments, variances, permits and or approvals from third parties as are necessary in order to permit Buyer to have ingress and egress to and full use and enjoyment of the Property in the manner and for the purposes contemplated by Buyer.

f. Board Approval. This Agreement shall have been approved and authorized at a regular or special board meeting of Buyer. This transaction shall be subject to the review and approval of the Board of Park Commissioners of the Columbus and Franklin County Metropolitan Park District. If the Board does not approve this Agreement, said Agreement shall be null and void.

4. Closing. The Closing shall be at such time, place and date as are mutually agreeable to Buyer and Seller but in no event shall occur on a date which is later than sixty (60) days after the contingencies have been satisfied or waived. In addition to the contingencies provided in this Agreement, Buyer’s obligations under this Agreement are subject to and contingent upon the occurrence of the following on or before the date of Closing: (a) Buyer shall have received final approval for the purchase of the Property at a regular or special board meeting of Buyer; (b) all of Seller’s representations and warranties hereunder shall remain true and correct; (c) no moratorium, statute, order, regulation, ordinance or judgment of any court or governmental agency shall have been enacted, adopted, issued or initiated that would materially and adversely affect the Property or Buyer’s use thereof as contemplated herein; (d) all contingencies shall have been satisfied or waived, and no facts or circumstances on which such satisfaction or waiver is based shall have changed since the date of such satisfaction or waiver; (e) the Title Company shall have issued the Title Commitment; (f) Seller shall have delivered all other documents and other deliveries listed herein; and (g) all other conditions to Buyer’s obligations to proceed to Closing which are set forth in this Agreement shall have been satisfied. Buyer shall receive possession of the Property at Closing.

5. Deliveries.

a. Seller’s Deliveries at Closing. At Closing, Seller shall deliver the following documents and materials, all of which shall be in form and substance reasonably acceptable to Buyer: (i) a duly executed and acknowledged Deed (as defined in Paragraph 8); (ii) a certificate duly executed by Seller that as of the date of Closing, all representations and warranties by Seller set forth in this Agreement remain true and correct; (iii) a non-foreign certification duly executed by Seller under penalty of perjury, certifying that Seller is not a “foreign person”, pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended (“Section 1445”) (If Seller shall fail or be unable to deliver the same, then Buyer shall have the right to withhold such portion of the Purchase Price as may be necessary, in the opinion of Buyer or its counsel, to comply with Section 1445.); (iv) a general instrument of transfer, pursuant to which Seller shall convey and assign to Buyer all of Seller’s right, title and interest in and to all personal property and other rights of Seller relating to the Property (“General Instrument of Transfer”); (v) such affidavits and indemnities as the Title Company may reasonably require in order to omit from the Title Policy all exceptions for (1) parties in possession, (2) mechanic’s liens, (3) unrecorded assessments and other matters an accurate survey of the Property would disclose, and (4) nondelinquent real estate taxes, water and sewer and other charges of municipal and governmental authorities and utility companies; and (vi) a closing statements showing documents, closing costs and prorations, calculated in accordance with Paragraph 7 hereof, in form and substance satisfactory to Buyer and Seller (the “Closing Statements”).

b. Buyer’s Deliveries at Closing. On the date of Closing, Buyer shall: (i) deliver at

Closing the Purchase Price for the Property (plus any additional funds necessary to pay Buyers’ share of closing costs and prorations, minus any credits granted to Buyer as set forth herein) in immediately available funds; and (ii) sign the Closing Statements.

6. Closing Costs. Except as otherwise expressly provided herein, Seller shall pay at the Closing: the costs of releasing any mortgage, financing statement, or other debt security, or any attachments, assessments, delinquent real estate taxes or mechanic’s or materialmen’s liens outstanding against the Property; the costs of the Title Policy; the costs of the Survey; the costs of curing, remedying or removing any Contingencies that Seller elects to cure, remedy or remove; and any sales or use taxes. Buyer and Seller shall each pay their own attorneys fees. Buyer shall pay the costs of recording the Deed and any special endorsements to the Title Policy not required to cure a title objection or Survey Exception. Buyer shall be responsible for any conveyance fees and agricultural recoupment fees associated with this transaction.

7. Prorations. All prorations shall be made as of 12:01 a.m. on the date of Closing, so that for purposes of prorations only, Buyer shall be deemed an owner of the Property throughout such day. Unless otherwise specified herein, all matters shall be prorated on an accrual basis. Any matters whose proration is not specifically covered in this Paragraph shall be prorated in accordance with customary procedure in the county where the Property is located. As used herein, “Taxes” include all real property taxes and assessments. As of the date of closing, Seller shall pay or credit to the purchase price all delinquent Taxes, including penalties and interest, all assessments which are a lien on the Property as of the date of Closing, if any, and Seller shall pay or credit to the purchase price an amount equal to all Taxes not yet due and payable as of the date of Closing based upon a 365-day year. If Taxes are undetermined, Taxes shall be based upon the most recently available tax bill for the Property, giving effect to applicable exemptions, recently voted millage, change of valuation, etc., whether or not certified. If the actual tax bill for the year of Closing indicated the Taxes exceeding those prorated at Closing, or if any additional or supplemental Taxes are assessed against the Property for back assessments, corrections to previous tax bills or other events occurring before the date of Closing, then Buyer shall have the option to so notify Seller, upon receipt of which notice Seller shall pay to Buyer the amount of such excess taxes due within ten (10) days after receipt of such notice. The obligations contained in this Paragraph shall survive the Closing.

8. Deed. Seller shall convey to Buyer marketable title in fee simple by transferable and recordable general warranty deed free and clear of all liens and encumbrances not excepted by this Agreement (the “Deed”).

9. Damage or Destruction of Property. Risk of loss to the real estate and appurtenances shall be borne by Seller until Closing provided that if certain Property covered by this Agreement shall be substantially damaged or destroyed before this transaction is closed, Buyer may (a) proceed with the transaction and be entitled to all insurance money, if any, payable to Seller under all policies covering the Property, or (b) rescind the Agreement and thereby release all parties from liability hereunder, by giving written notice to Seller within ten (10) days after Buyer has written notice of such damage or destruction, upon which the Option Consideration shall be returned to Buyer. Failure by Buyer to so notify Seller shall constitute an election to proceed with the transaction.

10. Income-Producing Agreements. Seller shall convey any and all interest in leases or income-producing agreements relative to the Property that may be in effect as of the date of Closing, and will execute such assignments or other instruments as necessary to effectuate such conveyances.

11. Seller’s Representations and Warranties. As a material inducement to the execution and delivery of this Agreement by Buyer and the performance by Buyer of its duties and obligations hereunder, Seller does hereby warrant and represent to Buyer as of the date hereof and as of the date of Closing:

a. Information. Except as set forth herein, Seller is unaware of any information affecting

the Property that has or would have a material adverse impact on Buyer’s ability to use, lease and operate the Property as contemplated by Buyer.

b. Legal Compliance. Except as disclosed to Buyer, Seller has no knowledge of any past

or continuing violation or alleged violation of any legal requirement affecting the Property; including, without limitation, any past or continuing violation or alleged violation of any local, state or federal environmental, zoning, subdivision, fire or other law, ordinance, code, regulation, rule or order. In addition to the foregoing, the Property complies with all applicable building and zoning codes and all laws, statutes, codes ordinances, rules and regulations relating to the environment.

c. Litigation. Seller has no knowledge of any pending or threatened claims, actions, suits,

litigation or governmental proceeding affecting the Property.

d. Other Agreements. To Seller’s knowledge, there are no agreements or understandings,

oral or written, with any person, entity or governmental authority affecting the Property which could give rise to claims affecting the Property.

e. Governmental Actions. Seller has no knowledge of any threatened or pending

condemnation or eminent domain proceeding, special assessment, rezoning or moratorium affecting the Property.

f. Due Authorization. Seller has full power to execute, deliver and carry out the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. The individual executing this Agreement on behalf of Seller has the authority to bind Seller to the terms and conditions of this Agreement.

g. Environmental Matters. To the best of Seller’s knowledge, the Property is not in

violation of any Environmental Law, as defined below, and Seller has no knowledge of (i) the presence on or about the Property of any Hazardous Materials, as defined below; (ii) any release or threatened release of any Hazardous Materials on or affecting the Property; or (iii) the existence of any underground storage tanks on or about the Property. Seller has received no notice of any investigation or proceeding by any governmental agency concerning the presence or alleged presence, release or threatened release of Hazardous Materials on the Property. The term “Environmental Law” includes any federal, state or local law, ordinance or regulation pertaining to health, industrial hygiene, waste disposal, or the environment, including, without limitation: the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, the federal Superfund Amendments and Reauthorization Act of 1986, the federal Resource Conservation and Recovery Act of 1976, the federal Clean Air Act, the federal Water Pollution Control Act and federal Clean Air Act of 1977, the federal Insecticide, Fungicide and Rodenticide Act, the federal Pesticide Act of 1977, the federal Toxic Substances Control Act, the federal Safe Drinking Water Act, the federal Hazardous Materials Transportation Act, and any amendments thereto and regulations adopted and publications promulgated pursuant thereto. The term “Hazardous Materials” includes oil and petroleum products, asbestos, polychlorinated biphenyl, radon and urea formaldehyde, and any other materials classified as hazardous or toxic or as pollutants or contaminants under any Environmental Law.

If Seller has received or at any time does receive notice, knowledge or information as to the presence, alleged presence, release or threatened release of Hazardous Materials on or about the Property other than as previously disclosed by Seller to Buyer, Seller agrees to provide to Buyer all information and data as to such Hazardous Materials immediately upon receipt of same.

12. Miscellaneous.

a. This Agreement shall be binding upon the parties hereto, and their respective successors and assignees. All agreements, representations and warranties by the respective parties contained herein are intended to and shall remain true and correct as of the Closing, shall be deemed to be material, and shall survive the delivery of the Deed and transfer of title. Any covenants and conditions herein that must be operative after delivery of the Deed to be effective shall be so operative and shall not be deemed to have been merged in the Deed.

b. This Agreement contains all of the covenants, conditions and agreements between the parties with respect to the subject matter hereof and shall supersede all prior correspondence, agreements and understandings, both oral and written to the extent related to the subject matter hereof. The parties intend that this Agreement constitutes the complete and exclusive statement of its terms and that no extrinsic evidence may be introduced in any proceeding involving this Agreement. This Agreement may not be changed or amended orally, but only by an agreement in writing. No waiver shall be effective hereunder unless given in writing, and waiver shall not be inferred from any conduct of either party.

c. All notices required or permitted to be given pursuant to the terms hereof shall be in writing and shall be delivered either by hand delivery, by overnight delivery service, by deposit in the United States mail, registered or certified mail, postage prepaid, or by facsimile transmission provided that in the case of facsimile transmission a hard copy of such notice shall be delivered on or before the next Business Day (defined below) by hand delivery or by overnight delivery service. All such notices shall be addressed to Seller at Seller’s address set forth on the signature page hereof, and to Buyer at Buyer’s address set forth on the signature page hereof, with a copy to each of Buyer’s and Seller’s attorney as set forth on the signature page hereof; except that in the case of notice by facsimile transmission, the facsimile transmission numbers set forth on the signature page hereof shall be used. The foregoing addresses (and facsimile transmission numbers) may be changed by written notice to the other party as provided herein. Notices shall be deemed received upon delivery if delivered by hand or by overnight delivery service or by facsimile transmission, or three (3) days after being sent by registered or certified mail (unless a signed receipt evidences earlier delivery).

d. In construing this Agreement, all headings and titles are for the convenience of the

parties only and shall not be considered a part of this Agreement. Whenever required by the context, the singular shall include the plural and the masculine shall include the feminine and vice versa. All exhibits attached hereto are incorporated in this Agreement by reference thereto.

e. Time is of the essence of every provision herein contained. Whenever the date or

deadline for any action to be taken is not a Business Day, the relevant date or deadline shall be the next Business Day. As used herein, a “Business Day” shall mean any day that is not a Saturday or Sunday or a holiday in the State of Ohio.

f. This Agreement shall be governed by the laws of the State of Ohio.

g. Each party represents to the other that no broker or finder has been engaged who may

claim a fee or commission in connection with the transaction contemplated hereby. Each party shall indemnify, defend and hold the other party harmless from and against any loss, cost or expense, including, but not limited to, attorneys fees and court costs, resulting from any claim for a fee or commission by any other broker or finder in connection with the Property or this Agreement as a result of the acts or omissions of such party.

h. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws, such provisions shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement; and the remaining provisions of this Agreement shall remain in full force and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. In lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Agreement a provision similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid, or enforceable.

13. Acceptance. Buyer’s offer to enter into this Agreement and pay the consideration for the within described Option may be accepted by Sellers by executing at least one (1) copy of this Agreement and delivering it to Buyer on or before 5:00 p.m., on _________________________. If Buyer’s offer is not so accepted by said time and date, Buyer’s offer shall automatically terminate.

14. Notice of Option. Seller, upon request by Buyer, shall execute and deliver to Buyer a Notice of Option or similar instrument reflecting terms of this Agreement pertaining to the Property (other than the consideration therefor) as Buyer may designate, which instrument shall be in a form recordable under the laws of the State of Ohio and which Buyer may record. In the event that Buyer does not exercise the Option, or exercises the Option and then fails to close as provided herein, Buyer will provide Seller with a recordable release of the Option.

15. The parties hereto have executed this Agreement as of the date set forth below their

respective signatures.

Signed and acknowledged in the BOARD OF PARK COMMISSIONERS

presence of: COLUMBUS AND FRANKLIN COUNTY

METROPOLITAN PARK DISTRICT

Print Name: By:

Name: John R. O’Meara

Title: Executive Director

Print Name:

SELLER

___________________________________

Print Name:

By: Name:

Title:

Print Name:

STATE OF OHIO )

) SS:

COUNTY OF )

The foregoing instrument was acknowledged before me this _____ day of _______, 2001, by John R. O’Meara, Executive Director of the Board of Park Commissioners Columbus and Franklin County Metropolitan Park District.

Notary Public

STATE OF OHIO )

) SS:

COUNTY OF )

The foregoing instrument was acknowledged before me this ___ day of _____________, 2001, by _______________, the _______________ of ___________________________________.

Notary Public

This instrument was prepared by:

Squire, Sanders & Dempsey L.L.P.

1300 Huntington Center

41 South High Street

Columbus, Ohio 43215

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