COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO

CITY OF BLUE ASH ex rel. JEFFREY CAPELL 9354 Hunters Creek Drive Cincinnati, OH 45242 Relator, v. CITY OF BLUE ASH Attn: Mark A. Vander Laan, City Solicitor 4343 Cooper Road Blue Ash, OH 45242-5699 and CITY OF CINCINNATI Attn: John C. Curp, City Solicitor 801 Plum Street Cincinnati, Ohio 45202 Respondents.

: : : : : : : : : : : : : : : : : : : : : :

Case No. _________________ Judge____________________

COMPLAINT FOR PERMANENT INJUNCTION AND RECISSION OF CONTRACT

Now comes Relator, Jeffrey Capell, as taxpayer and/or resident of the City of Blue Ash, and on relation to the City of Blue Ash, for his Complaint against Respondents named herein, alleges as follows:

INTRODUCTION 1. Relator, as a taxpayer and resident of the City of Blue Ash, and on relation

to the City of Blue Ash, seeks, under R.C. Section 733.56, et seq. permanent injunctive relief to restrain (i) an abuse of corporate powers by the City of Blue Ash, and (ii) the performance of a contract made in contravention of the laws of the City of Blue Ash, to

wit, the limitation set forth in Section 9.12 of the Charter of the City of Blue Ash as it relates to the power and authority of the City of Blue Ash to enter into a contract for a term longer than five years. 2. Relator, as a taxpayer and resident of the City of Blue Ash, and on relation

to the City of Blue Ash, also seeks a rescission of an illegal contract, thus returning the parties to the status prior to the execution of the illegal contract.

PARTIES 3. 4. Relator Jeffrey Capell is a resident and taxpayer of the City of Blue Ash. Respondent City of Blue Ash is a municipal corporation in the State of

Ohio and, as such, is a body corporate and politic, capable of being sued and organized and existing under Chapter 715 of the Revised Code. 5. Respondent City of Cincinnati is a municipal corporation in the State of

Ohio and, as such, is a body corporate and politic, capable of being sued and organized and existing under Chapter 715 of the Revised Code. It is named solely as a necessary party pursuant to Civil Rule 19, in as much as it has an interest in the Agreement (as that term is defined below) that is the subject of this litigation.

STATEMENT OF FACTS The City of Blue Ashs Violation of the Blue Ash City Charter 6. part: No contract shall be made for a term longer than five years, except that franchises for public utility services and contracts with other Section 9.12 of the Charter of the City of Blue Ash provides, in pertinent

governmental units for service to be received or given may be made for any period no longer than twenty years. 7. On August 29, 2012, the City of Blue Ash and the City of Cincinnati

entered into an Agreement for Purchase and Sale for approximately 130 acres of former Blue Ash Airport property, now known as the Blue Ash Park Property (the Agreement). A copy of that Agreement is attached hereto as Exhibit A. 8. Under that Agreement, the City of Blue Ash agreed to pay the City of

Cincinnati a purchase price for certain real property of $37,250,000, which sum is to be paid over a period of twenty-four years. That obligation is secured by a Mortgage against the property so acquired, a copy of which is attached hereto as Exhibit B (the Mortgage). In exchange, the City of Cincinnati delivered a Limited Warranty Deed to the City of Blue Ash for the real property that was subject to the Agreement. A copy of that deed is attached hereto as Exhibit C (the Deed). 9. As the Agreement provides for the payment of the purchase price over a

period of twenty-four years, the City of Blue Ash has entered into a contract for a term longer than five years and, thus, in contravention of the laws of the City of Blue Ash, specifically, Section 9.12 of the Charter of the City of Blue Ash.

Demand Made for Initiation of a Taxpayer Action 10. On August 22, 2012, and pursuant to R.C. Sections 733.56 et seq. of the

Revised Code, Relator tendered a written demand or request upon Mark A. Vander Laan, City Solicitor for the City of Blue Ash, to make application to a court of competent jurisdiction for an order of injunction to restrain the City of Blue Ash and its City Manager from signing an agreement between the City of Blue Ash and the City of

Cincinnati to repurchase approximately 130 acres of land, known under a November 8, 2006 Agreement of Purchase and Sale as the Blue Ash Park Property. A true and accurate copy of the letter sent of Mr. Vander Laan is attached hereto as Exhibit D. 11. In a letter dated August 27, 2012, Mr. Vander Laan, as Law Director for

the City of Blue Ash, responded in the negative, stating he would not proceed with the action. A true and accurate copy of the letter received from Mr. Vander Laan is attached hereto as Exhibit E.

FIRST CAUSE OF ACTION Permanent Injunctive Relief 12. Relator restates and incorporates by reference all of the foregoing

paragraphs as if fully restated. 13. A real and justiciable dispute exists between the parties regarding the

rights, status, and other legal relations arising from the foregoing facts. 14. Pursuant to O.R.C. 733.56 et seq., Relator is entitled to injunctive relief

against the City of Blue Ash to restrain the City of Blue Ash from performing the Agreement (and Mortgage) as the same was both (i) the abuse of its corporate powers and (ii) the execution or performance of any contract made in behalf of the municipal corporation in contravention of the laws or ordinance[s] governing it inasmuch as the Agreement is a contract made for a term longer than five years in contravention of Section 9.12 of the Charter of the City of Blue Ash.

SECOND CAUSE OF ACTION Rescission of Agreement 15. Relator restates and incorporates by reference all of the foregoing

paragraphs as if fully restated. 16. For the same reasons set forth above, Relator seeks a rescission of the

Agreement (and the Mortgage and Deed made thereunder), a refund from the City of Cincinnati to the City of Blue Ash of the portions of the purchase price paid thereunder, and a revocation of the Deed. Inasmuch as the Agreement exceeds the corporate powers of the City of Blue Ash as set forth above, the same is void. Relator is thus entitled to such rescission to return the City of Blue Ash and the City of Cincinnati to the status that existed prior to the execution of the Agreement. WHEREFORE, Relator prays for the entry of judgment in his favor and against the Respondent, granting the permanent injunction to restrain an abuse of corporate powers by the City of Blue Ash, to restrain the performance of the Agreement, and the rescission of the Agreement (and Mortgage and Deed made pursuant thereto), as well as court costs, attorney fees, and such other relief to which he may be entitled in law or in equity. Respectfully submitted,

/s/ Christopher P. Finney Christopher P. Finney (OH Bar No. 0038998) FINNEY, STAGNARO, SABA & PATTERSON CO., LPA 2623 Erie Avenue Cincinnati, Ohio 45208 Telephone: (513) 533-2980 Facsimile: (513) 533-2990 Email: cfinney@fssp-law.com

Curt C. Hartman (OH Bar No. 0064242) THE LAW FIRM OF CURT C. HARTMAN 3749 Fox Point Court Amelia, Ohio 45102 Telephone: (513) 752-8800 Email: hartmanlawfirm@fuse.net

Deborah L. Meyer Pro Hac Vice (motion to be made) 7107 Overton Way Maineville, OH 45039 Telephone: (513) 227-9224 Email: Debbie@DeborahLMeyer.com Attorneys for Relator

Contract No:
(Former Blue Ash Airport)

BLUE ASH AIRPORT CONVEYANCE AGREEMENT

This Blue Ash Airport Conveyance Agreement (nAgreement") is entered into on the Effective Date (as defined on the signature page hereof) by and between the City of Cincinnati, an Ohio municipal corporation (the "Seller" ), and the City of Blue Ash, an Ohio municipal corporation ("Purchaser" ).

Recitals:
A. Seller owns the former Blue Ash Airport, consisting of approximately 228 acres, located Glendale-Milford Road, Blue Ash, Ohio 45242 (herein, the "Airport Property" ). at 4273

B. Seller desires to sell a portion of the former Blue Ash Airport to Purchaser, said portion consisting of approximately 130 acres and being described on Exhibit A hereto (the "Park Property" ), and Purchaser desires to purchase the Park Property from Seller, on the terms and conditions set forth in this Agreement.
C. The remainder of the Airport Property retained by Seller, consisting of approximately 98 acres (i.e., the Airport Property, less the Park Property), is referred to herein as the "Residual Property".
Seller's execution of this Agreement was authorized D. City Council for the City of Cincinnati on August 1, 2012. by
by Ordinance

No. 302-2012, passed

Purchaser's execution of this Agreement was authorized E. passed by City Council for the City of Blue Ash on August 9, 2012.
NOW THEREFORE, the parties hereby agree

by Ordinance

No. 2012-41,

as follows:

1.

Sale of Park Prooertv.

Park Property. Seller hereby agrees to sell the Park Property to Purchaser, and (A) Purchaser hereby agrees to purchase the Park Property from Seller, on the terms and conditions set forth in this Agreement. The parties acknowledge and agree that, prior to the Effective Date, Seller has closed the Blue Ash Airport in accordance with all applicable FAA regulations and requirements.

(B)

Personal

included in this Agreement. prior to the Possession Date

Prooertv. The parties acknowledge that no items of personal property are Seller shall remove all items of personal property from the Park Property (as defined below).

storage Condition. Prior to the Possession Date, Seller shall remove all underground (C) remediation activities at the Park Property as described on tanks and complete certain environmental Exhibit B hereto. Provided such work has been completed, Purchaser shall accept the Park Property in "as is" condition at Closing, as defined below. Seller shall provide Purchaser with full access to the Park Property between the Effective Date and the Possession Date to enable Purchaser to conduct whatever Purchaser shall be physical inspections of the Park Property that it deems necessary or desirable. responsible for repairing any and all damage to the Park Property caused by its inspections and shall be responsible for any and all injuries sustained by Purchaser's employees and agents while on the Park Property.

2.

Purchase Price: Mortqaqe.

Purchase Price. The purchase price for the Park Property is $37,250,000 and shall be (A) payable by Purchaser over twenty-four (24) years as follows:

l00044393-3i

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(iv)

(v)

Purchaser shall pay $6,000,000 on the date of Closing (the "Initial Payment" ); Year 1 (2013): On August 31, 2013 (being the 1'nniversary of the Possession Date), Purchaser shall make a payment to Seller of $750,000,; Years 2-4 (2014-2016): On August 31, 2014 (being the 2" anniversary of the Possession Date) and on each anniversary thereafter for the next two (2) years (for a total of 3 payments), Purchaser shall make annual payments to Seller of $ 1,000,000 each; Years 5-14 (2017-2026): On August 1, 2017 (being the 5'" anniversary of the Possession Date) and on each anniversary thereafter for the next 9 years (for a total of 10 payments), Purchaser shall make annual payments to Seller of $ 1,250,000 each; Years 15-24 (2027-2036): On August 1, 2027 (being the 15 anniversary of the Possession Date) and on each anniversary thereafter for the next 9 years (for a total of 10 payments), Purchaser shall make annual payments to Seller of $ 1,500,000 each.

Mortgage. At Closing, and as security for Purchaser's obligation to pay the purchase (B) price, Purchaser shall execute and deliver to Seller a first Mortgage to secure Purchaser's performance hereunder in substantially the form of Exhibit C hereto.

3.

Closina: Restrictive Covenants.

Closing. The closing ("Closing" ) shall take place, at a mutually agreed upon location on (A) the Effective Date. On the date of Closing, Seller shall convey title to the Park Property to Purchaser by Limited Warranty Deed in the form of Exhibit D hereto, and Purchaser shall wire transfer the Initial Payment to Seller. At Closing, real estate taxes shall be prorated as of the Possession Date in accordance with local custom to be paid no later than 30 days after Closing. Seller shall reimburse Purchaser, within 30 days after the Possession Date, for pre-Closing real property tax payments made by Purchaser for the Park Property, anticipated to be approximately $302,000 but subject to verification. Following the Possession Date, Purchaser shall pay all real estate tax bills coming due. If obtained by Purchaser, Purchaser shall pay for the cost of a title exam, property survey, and owner's title insurance. At Closing, the parties agree to execute a settlement statement and any and all other customary closing documents.

income and Expenses. Seller shall be entitled to receive any and all income from the (B) Park Property, and shall be responsible for all utilities and other operating expenses associated with the Park Property, up to and including the Possession Date. Purchaser shall be entitled to any and all income and shall be responsible for all utilities and other operating expenses thereafter. Unless the parties deem it appropriate, there shall be no proration of income or expenses between the parties at Closing.

31, 2012 (the "Possession Date" ). On or

Seller shall deliver possession of the Park Property to Purchaser on Auaust prior to the Possession Date, Seller shall provide evidence to Purchaser that Seller has properly terminated all leases encumbering the Park Property.

(C)

Possession.

Restrictive Covenants. The Limited Warranty Deed to be delivered by Seller at Closing (D) shall contain various use restrictions that shall remain in place for forty (40) years, as set forth in the Limited Warranty Deed attached hereto as Exhibit D.

Notices. All notices given by the parties hereunder shall be deemed given if personally 4. delivered, or mailed by U.S. certified mail, postage prepaid, return receipt requested, or delivered by Federal Express or other recognized overnight courier, addressed to the parties at their addresses below or at such other addresses as either party may designate by notice to the other party given in the manner prescribed herein.

I00044393-3i

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To Seller:

To Purchaser:
David M. Waltz, City Manager City of Blue Ash

Jr., City Manager City of Cincinnati 801 Plum Street Cincinnati, OH 45202
Milton Dohoney,

4343 Cooper Road Blue Ash, OH 45242

With a copy

With

a copy to:

to:

John Curp, Esq. City Solicitor, City of Cincinnati 801 Plum Street, Rm. 214
Cincinnati, OH 45202

Mark Vander Laan, Esq.

Dinsmore 8 Shohl LLP

255 E. Fifth Street, Suite 1900 Cincinnati, OH 45202

the other party shall have the right to pursue

all

Default. If either party defaults hereunder, rights and remedies available at law or in equity.

5. 6.

General Provisions.

with

This Agreement contains the entire agreement between the parties Entire Agreement. (A) respect to the sale and purchase of the Park Property and supersedes any and all prior discussions, negotiations, representations or agreements, written or oral, between them respecting the subject matter hereof.

(B)
both parties.

Amendments.

This Agreement

may be amended

only by a written amendment

signed by

The parties No Third Partv Beneficiaries. (C) rights are intended to be created by this Agreement.

hereby agree that no third party beneficiary

Governina Law. This Agreement shall be governed by and construed in accordance with (D) the laws of the State of Ohio. The parties hereby agree to waive trial by jury with respect to any and all disputes arising under this Agreement.
No Merger. All provisions of this Agreement shall survive Seller's execution and delivery (E) of Seller's Limited Warranty Deed and shall not be deemed to have merged therein.

(F)

have the right to dates specified pertaining to the deem reasonable

Seller's City Manager and Purchaser's City Manager shall Authority of Citv Manaaers. mutually agree, in writing, to advance or extend the Closing date and any and all other herein, and to make such other modifications to this Agreement (excluding those amount or timing of the payments of the purchase price), as they may in their discretion
or appropriate.
Time is of the essence with respect to the parties'erformance
Time of the Essence.

(G)
hereunder.
(H)

Exhibits. The following exhibits are attached hereto and made a part hereof:
Exhibit A - I egal Description (Park Property) Exhibit B - Description of UST Removal and Remedial

Action Work to be completed

by

Seller
Exhibit C - Form of Mortgage Exhibit D - Form of Limited Warranty Deed

SIGNATURES ON FOLLOWING PAGE

{00044393-3l
8/27/20

Executed by the parties at the times and dates indicated time and dates (the "Effective Date" ).
CITY OF CINCINNATI

below, effective as of the later of such

CITY

BLUE ASH

By:

~M@ B&e
David M. Waltz, City Maadger

Date:

gllAC

A'f,

Time:

2012

Date:

~q

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I

L,

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2012

Michael Moore Director, Department

of Transportation

8 Engineering

Appr v d

as

F rm:

Approv

to Form:

Assistant City Solicitor, City of Cincinnati

AUG
~

City

elicitor, City of Blue Ash

Certified Date:

Fund/CodeRWS NS~FAl llAf-Q ' ''l'i&. at Amount:

By:

f'PDTlG&r'x a e aa

27 tgyesa;
a~a~e
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Reginald Zeno, City F nance Director

(00044393-3}

8/27/20

Exhibit A to Conveyance Agreement

Legal Description (Park Prooertv) 130 acres of land at the Blue Ash Airport

Situate in County of Hamilton, City of Blue Ash, State of Ohio, and more particularly described as follows:
Ash Airport Subdivision Phase ll, as set forth 1 and 2 of the Cincinnati-Blue Book 411, Page 99, of the Hamilton County, Ohio Recorder's Office.

Lots

in

Plat

Property Address: Parcel Numbers:

Plainfield 8 Glendale Milford Roads

612-120-187 8 612-120-188

{00044393-3)

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Exhibit B
to Conveyance Agreement

Description of UST Removal and Remedial Action Work to be Completed bv Seller

Underaround Storage Tank Removal. Prior to the Possession Date, Seller, at Seller' (A) expense, shall remove the known underground storage tanks located on the Park Property and perform all necessary remedial work to address associated impact. Seller assumes this work will result in a "clean closure" concurrent with UST system removal. Within thirty (30) days after the tanks have been removed (and in any event prior to the Possession Date), Seller (or its designee) shall submit a report to Ohio's Bureau of Underground Storage Tank Regulations (BUSTR) (with a copy to Purchaser) that documents the removal activity. Seller shall also request a "No Further Action" / closure letter from BUSTR. If, either before or after the Possession Date, BUSTR requires additional information or data necessary for it to issue such letter, Seller (or its designee) shall work proactively with BUSTR to provide such information or data until the letter is issued. Upon Seller's receipt of the letter, Seller shall provide a copy of it to

Purchaser.
Remedial Action Work. (i) The parties acknowledge that Seller has retained a qualified (B) environmental consultant ("Consultant" ) to investigate and remediate lead and arsenic contaminated media on the approximate 7.5 acre portion of the Park Property associated with former trap shooting activities (the "VAP Area" ) so that the VAP Area meets the Ohio EPA's Voluntary Action Program ("VAP") generic lead clean-up standards for residential use and site specific arsenic clean-up standards for non-residential use ("Remedial Action Work" ). Seller shall complete the work in accordance with the contract between Seller and EVANS LANDSCAPING, INC. dated December 7, 2011, a copy of which Seller has previously provided to Purchaser.
(ii) Purchaser Coooeration. Purchaser agrees to cooperate and provide assistance with implementation of the Remedial Action Work to the extent that detailed Park Development Plans for the Park Property are available during the time frame when the Remedial Action Work will be undertaken. To the extent that the Park Development Plan countenances remedial solutions in the Remedial Action Work Plan that includes techniques other than soil excavation and removal, Seller shall have the right to employ those techniques subject to the consent of Purchaser, such consent not to be unreasonably withheld.

Consultant

with the Remedial Action Work, Seller shall In connection (iii) Documents. to create and submit to Purchaser the following documents ("Documents" ):

cause

(a) Remedial Action Work Plan, stating actions to be taken to cause the VAP
Area to meet VAP lead clean-up standards;

(b) Sampling and Analysis Plan, describing work to confirm that the VAP Area meets VAP lead clean-up standards using a VAP Certified Lab and to characterize soils for beneficial reuse off Park Property or disposal off Park
Property;

(c) Health and Safety Plan, describing project health and safety and

including

dust suppression techniques and provision for at least one down-wind monitoring station at the perimeter of the project;

air

measures to comply with storm water (d) Storm Water Plan, documenting management requirements for the project, including final configuration of the project site so as to minimize impact to storm water run-off from the impacted

area;

(e) Sampling

Report, providing analytical results generated implementation of the Sampling and Analysis Plan;

as a result of

results of remedial action, including Report, summarizing (f) Completion quantity and disposition of soils removed from the VAP Area, results of of other project plans confirmatory sampling, and results of implementation

described above.
(00044393-3)
8/27/20

Purchaser may, at its option and at its expense, retain its own environmental consultant to collect data and prepare any additional documents necessary to meet VAP requirements.
VAP Submittal. Upon completion of the Remedial Action Work (and in any event (iv) prior to the Possession Date), Seller shall cause the Consultant to prepare a No Further Action ("NFA") letter for the VAP Area and to submit the same to the Ohio EPA's Voluntary Action Program.

Remedial Action Costs. The parties shall pay for all costs associated with (v) completing the Remedial Action Work ("Remedial Action Costs" ) as follows: Seller shall pay for all Remedial Action Costs up to $ 1,500,000, and Purchaser shall pay for all Remedial Action Costs in excess thereof, payable within 30 days after Seller's written demand. Remedial Action Costs may include the cost of testing, removing, segregating, treating, transporting and disposing of contaminated soils, drafting and required Documents, performing confirmation sampling following removal of soils, and implementing the final report that confirms lead remediation of the VAP Area to VAP residential lead clean-up preparing standards and arsenic remediation of the VAP Area to VAP non-residential standards. Remedial Action Costs shall not include salary or overhead costs of professional staff with the City of Cincinnati. Seller shall use best efforts to keep Remedial Action Costs as low as reasonably achievable and shall diligently pursue options for beneficial reuse of Materials. Such options may include the use of clean fill material Seller finds on the Park Property to backfill any areas excavated as part of the Remedial Action Work. Prior to its use as backfill, Seller shall notify Purchaser of the source of this clean fill material and the parties shall mutually agree upon its use. However, in no case shall soils exceeding VAP generic arsenic clean-up residential lead clean-up standards or exceeding VAP site-specific non-residential standards be left on the VAP Area, whether for beneficial reuse or disposal.

Seller shall be solely responsible for disposition of any Materials Management. waste, or other materials ("Materials" ) generated as a result of the soils, media, investigation-derived Remedial Action Work, including any Materials for off Park Property disposal or beneficial reuse.
(vi)

End of Exhibit B

{00044393-3)

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MORTGAGE
Maximum

Principal Amount:

$31,250,000

2012 by the CITY OF BLUE ASH, an Ohio THIS MORTGAGE is given on if' corporation, 4343 Cooper Road, Blue Ash, OH 45242 ("Purchaser" ). This Mortgage is given to the CITY OF CINCINNATI, an Ohio municipal corporation, 801 Plum Street, Cincinnati, OH 45202 ("Seller" ). Purchaser owes Seller the principal sum of Thirty-One Million Two Hundred Fifty Thousand Dollars ($31,250,000), pursuant to that certain Blue Ash Airport Conveyance Agreement of even date herewith (as the same may hereafter be amended, restated or replaced from time to time, the "Agreement" ). This Mortgage secures to Seller the repayment of the debt evidenced by the Agreement For this and the payment of all other sums, with interest, advanced by Seller under this Mortgage. purpose, Purchaser does hereby mortgage, grant and convey to Seller certain real property, consisting of approximately 130 acres of land at the former Blue Ash Airport, as more particularly described on Exhibit now or hereafter erected on the property, and all easements, A hereto, together with all improvements appurtenances, and fixtures now or hereafter a part of the property (collectively, the "Park Property" ). Purchaser covenants that Purchaser is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Park Property and that the Park Property is unencumbered, except for encumbrances of record. Purchaser and Seller covenant and agree as follows: 1. Payments. Purchaser shall promptly pay when due all amounts that may become due and payable under the Agreement. Unless applicable law provides otherwise, all payments 2. Application of Payments. received by Seller under paragraph 1 hereof shall be applied: first, to charges and other advances (other than principal and interest) due under the terms of the Agreement or this Mortgage, and second, to unpaid principal, or in such other order as Seller may elect. 3. Charges; Liens. Purchaser shall pay all real property taxes, assessments, charges, fines If and impositions attributable to the Park Property which may attain priority over this Mortgage. Purchaser fails to do so in a timely fashion, Seller may, at its option, pay such amounts pursuant to paragraph 6 hereof. Purchaser shall promptly discharge any lien that has priority over this Mortgage. 4. Property Insurance. Purchaser shall maintain full replacement cost special peril property insurance on any improvements now existing or hereafter erected on the Park Property. All insurance policies and renewals shall include a standard mortgagee clause in favor of Seller. If Purchaser fails to maintain insurance as required hereunder, Seller may, at its option, obtain such insurance pursuant to paragraph 6 hereof. Unless Seller and Purchaser otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the property damaged if the restoration or repair is economically feasible and Seller's security is not lessened. If the restoration or repair is not economically feasible or Seller' security would be lessened, the insurance proceeds shall be applied to the sums secured by this Mortgage, whether or not then due, with any excess paid to Purchaser. Purchaser shall maintain the Park 5. Mair:tenance and Repair of the Park Propert. Property in good condition and repair, ordinary wear and tear excepted.
municipal

l~,

(00046999-1)

=====b=_

Protection of Seller's Rights to the Park Property. If Purchaser fails to perform the agreements contained in this Mortgage, or there is a legal proceeding that may significantly affect Seller's rights in the Park Property (such as a proceeding in bankruptcy, probate, for

6.

covenants

and

condemnation or forfeiture or to enforce laws or regulations), Seller may do and pay for whatever is necessary to protect the value of the Park Property and Seller's rights in the Park Property. Seller' actions may include paying any sums secured by a lien which has priority over this Mortgage, appearing in court, paying reasonable attorneys'ees and entering onto the Park Property to make repairs. Any amounts disbursed by Seller under this paragraph shall become additional debt of Purchaser secured by this Mortgage. These amounts shall bear interest, at the rate of ten percent per annum, from the date of disbursement and shall be payable, with interest, upon notice from Seller to Purchaser requesting payment. 7. Successors and Assigns Bound; Governing Law. The covenants and agreements of this Mortgage shall bind and benefit the successors and assigns of Seller and Purchaser. This Mortgage shall be governed by the laws of the State of Ohio. 8. Notices. Any notice to Purchaser provided for in this Mortgage shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method. The notice shall be directed to Purchaser's address stated herein or any other address Purchaser designates by written notice to Seller. Any notice to Seller shall be given by first class mail to Seller's address stated herein or any other address Seller designates by written notice to Purchaser. 9. Advances to Protect Security. This Mortgage shall secure the unpaid balance of advances made by Seller with respect to the Park Property for the payment of taxes, assessments, insurance premiums, costs incurred for the protection of the Park Property, and other costs that Seller is authorized by this Mortgage to pay on Purchaser's behalf. 10. Release. Upon Purchaser's payment of all sums required to be paid by Purchaser under the Note, Seller shall discharge this Mortgage without charge to Purchaser.
This Mortgage is executed by Purchaser on the date set forth above.

CITY OF BLUE ASH

.,~ )~
STATE OF OHIO
COUNTY OF HAMILTON

David M. Waltz, City Mana/br

)ss:
)

The foregoing instrument was acknowledged before me this David M. Waltz, City Manager of the City of Blue Ash, an Ohio triune
Notary

'poration,

day of

i'I,}~,2012,
on its behalf.

by

l"
expires.

+blic

My commiission

Approve as
Assistant City Solicitor, City of Cincinnati
This instrument prepared by: City of Cincinnati Law Department
City

Form

Sol@toi, ICit) of Blue Ash

I'j

801 Pium Street, Suite Cincinnati, OH 45202 (00046999-1)

214

EXHI BIT "A""

Legal Description of the Park Property

130 acres of land at the Blue Ash

Airport

Situate in the County of Hamilton, City of Blue Ash, State of Ohio, and more particularly described as follows:
1 and 2 of the Cincinnati-Blue Ash Airport Subdivision Phase ll, as set forth Book 411, Page 99, of the Hamilton County, Ohio Recorder's Office.

Lots

in

Plat

Property Address: Parcel Numbers:

Plainfield & Glendale Milford Roads

612-120-187 & 612-120-188

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LIMITED WARRANTY DEED

The CITY OF CINCINNATI, an Ohio municipal corporation ("Grantor" ), for valuable consideration paid, hereby grants and conveys, with limited warranty covenants, to the CITY OF BLUE ASH, an Ohio municipal corporation ("Grantee" ), the tax-mailing address of which is 4343 Cooper Road, Blue Ash, Ohio 45242, the real property described on Exhibit A hereto (the "Park Property" ).
Property Address: Parcel Numbers:
Prior instrument
Plainfield and Glendale Milford Roads

612-120-187 and 612-120-188

OR
l

reference:

3IiCA,

Page IIp

5, Hamilton

County, Ohio Records

The foregoing limited warranty covenants are subject to easements, restrictions and other matters of record, matters which would be disclosed by an accurate survey and inspection of the property, and the lien of real estate taxes and assessments.
Use Restrictions on Park Prooertv (40 vears). Grantor hereby establishes the following covenants and restrictions, and by Grantee's acceptance of this Deed Grantee hereby accepts title to the Park Property subject to such covenants and restrictions, which shall be deemed to be "covenants running with the land" and shall inure to the benefit of Grantor and be binding upon Grantee and its successors in interest to the Park Property for a period of forty (40) years from the date hereof:
I.

including

Grantee shall use the Park Property for the development by way of example and not limitation, the following:

of a public park and ancillary uses,

(a) Open green space, walking paths, gardens, and woodlands areas; (b) The construction of lakes, pools, fountains, walking trails, bike trails, and common areas; The relocation of several golf course holes from the existing Blue Ash Golf Course (c)
west of the Park Property; (d) The construction of an approximately 45,000 square foot performing arts center, an approximately 40,000 including up to a 1,400 square foot theater/auditorium, square foot conference banquet facility and supporting parking garage/facilities of approximately 1,300 spaces; (e) The construction of the "My Gal Sal" World War II era B-17 Wartime Museum; (f) Four (4) to six (6) retail pad sites of supporting retail and related services for the park components, including golf shops, restaurants, and support services, along with an approximately 273-300 room hotel; (g) Related traffic improvements as necessary, on Glendale-Milford Road and Reed Hartman Highway; and (h) Other substantially similar park, recreational or public uses.

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00046996-1 }

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Citv of Cincinnati's Right of First Refusal to Purchase Park Propertv (40 years). For a ll. period of forty (40) years from the date hereof, Grantor reserves a right of first refusal to purchase the Park Property ("Park Property ROFR"). If Grantee receives a bona fide offer to purchase the Park Property or any portion thereof, which offer Grantee desires to accept {a "Park Property Offer" ), Grantee shall provide a copy of the Park Property Offer to Grantor. Grantor shall have sixty (60) days after its receipt of the Park Property Offer to exercise the Park Property ROFR by notifying Grantee thereof in writing. If Grantor does not exercise the Park Property ROFR within such 60-day period, Grantee shall be free to sell the property described in the Park Property Offer to the party who submitted the Park Property Offer, whereupon Grantor's Park Property ROFR with respect to such property shall forever terminate. If Grantor timely exercises the Park Property ROFR, then, at closing, Grantee shall convey the property described in the Park Property Offer to Grantor free and clear of all mortgages, security interests, liens, leases and other encumbrances {except that utility easements shall be permitted). If Grantor is not satisfied with Grantee's title to the property described in the Park Property Offer, Grantor's sole remedy shall be to rescind the exercise of the Park Property ROFR.

City of Blue Ash's Right of First Refusal to Purchase Residual Property (1 vear). Grantor 98 acres of land adjacent to the Park Property, as described on Exhibit B hereto (the "Residual Property" ). For a period of one (1) year from the date hereof, Grantor hereby grants to Grantee a right of first refusal to purchase the Residual Property ("Residual Property ROFRn). If within such 1-year period Grantor receives a bona fide offer to purchase the Residual Property or any portion thereof, which offer Grantor desires to accept (a "Residual Property Offer" ), Grantor shall provide a copy of the Residual Property Offer to Grantee. Grantee shall have sixty (60) days after its receipt of the Residual Property Offer to exercise the Residual Property ROFR by notifying Grantor thereof in writing. If Grantee does not exercise the Residual Property ROFR within such 60-day period, Grantor shall be free to sell the property described in the Residual Property Offer to the party who submitted the Residual Property Offer, whereupon Grantee's Residual Property ROFR with respect to such property shall forever terminate. If Grantee timely exercises the Residual Property ROFR, then, at closing, Grantor shall convey the property described in the Residual Property Offer to Grantee by limited warranty deed free and clear of all mortgages, security interests, liens, leases and other encumbrances (except that utility easements shall be permitted). If Grantee is not satisfied with Grantor's title to the property described in the Residual Property Offer, Grantee's sole remedy shall be to rescind the exercise of the Residual
Ill.

owns approximately

Property ROFR.
Authorized

by City of Cincinnati Ordinance

No. 302-2012 passed on August 1, 2012.

Executed on

/4x xt,4@, 20t 2.

CITY OF CINCINNATI

Milton Dohoney,

Jr., Citg/lh(nager

{00046996-1}

8/22/:

STATE OF OHIO
COUNTY OF HAMILTON

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SS:
was acknowledged
before me this an
day of

The foregoing instrument

by Milton Dohoney,

Pyf

Iu'k,

20t2
on its

Jr., the

City Manager of the City of Cincinnati

hio municipal

co'Pporation,

behalf.

Notary f'tiblic
My comrhgision

expires

Ap

oed

oF

rm:

Assistant City Solicitor

riots.

'ron

2-t/wig

ht.l?.(;.

ACCEPTED AND AGREED TO BY:

0:~
STATE OF OHIO

CITY OF BLUE ASH

David M. Waltz, City Qanager

)
)

SS:
r

COUNTY OF HAMILTON

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y2$ jtdf.

The foregoing instrument was acknowledged before me this by David M. Waltz, the City Manager of the City of Blue Ash, an Oh'
Notary P
My commis

day of
./

tf I

ipal corporation,

on its behalf.

~,

2012

'

lic
expires:

APPROV
tt
r

AS TO FORM:
Ii

ugn(iE,d~it,; ,u

City Ad2Ilicitor, City of Blue Ash

This instrument prepared by: Patricia D. Braxton City of Cincinnati Law Department 801 Plum Street, Suite 214 Cincinnati, Ohio 45202

fi00046996-I )

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EXHIBIT "A'"
Legal Description of the Park Property 130 acres of land at the Blue Ash Airport

Situate in the County of Hamilton, City of Blue Ash, State of Ohio, and more particularly described as follows:
1 and 2 of the Cincinnati-Blue Ash Airport Subdivision Phase II, as set forth Book 411, Page 99, of the Hamilton County, Ohio Recorder's Office.

Lots

in

Plat

Property Address: Parcel Numbers:

Plainfield & Glendale Milford Roads

612-120-187 & 612-120-188

{00046996-2i

ll/22/;

EXHIBIT

"B"

Legal Description of the Residual Property

98 acres of land adjacent to the Park Property

~ f g

Situate in the County of Hamilton, City of Blue Ash, State of Ohio, and more particularly described as follows:
Lot 3 of the Cincinnati-Blue Ash Airport Subdivision Phase II, as set 411, Page 99, of the Hamilton County, Ohio Recorder's Office.
forth in Plat Book

Property Address: Parcel Number:

Plainfield 8 Glendale Milford Roads

612-120-189

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00046996-2 i

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Jeffrey Capell
9354 Hunters Creek Drive

Cincinnati, Ohio 45242

conservative 2000@yahoo.com (513)544-3043

August 22, 2012

Via e-mail Mark.VanderLaan(a),dinsmore.com

and Certified Mail, Return Receipt Requested

and Certified Mail, Return Receipt Requested

Mark A. Vander Laan, Esq. City Solicitor, City of Blue Ash 4343 Cooper Road Blue Ash, OH 45242-5699

Mark A. Vander Laan, Esq. DINSMORE & SHOHL, LLP First Financial Center 255 East Fifth Street, Suite 1900
Cincinnati, Ohio 45202

Re:

Request for Initiation of Civil Action Pursuant to R.C. 733.56 et sec/.

Mr. Vander Laan:

Pursuant to Sections 733.56 to 733.61 of the Ohio Revised Code, I hereby request that you, as City Solicitor, make application to a court of competent jurisdiction for an order of injunction to restrain the City of Blue Ash and its City Manager from signing an agreement between the City of Blue ("Blue Ash") and the City of Cincinnati ("Cincinnati") to repurchase approximately 130 acres of land, known under a November 8, 2006 Agreement of Purchase and Sale ("2006 Agreement") as the Blue Ash Park Property ("Park Properly").
Under the 2006 Agreement, Cincinnati delivered title to the property to the City of Blue Ash and, in exchange, Blue Ash agreed to pay $37,500,000 over a period of thirty ("30") years. Such promise to pay was secured by a mortgage given to Cincinnati. Blue Ash currently has title to the Park Property, but its City Council passed Ordinance 2012-41 authorizing the City Manager to enter into agreements purportedly to effect "the completion of the public improvements" expressed under Ordinance 2006-47. (Ordinance 2006-47 allowed the City Manager to enter into the original 2006 Agreement.) The Blue Ash City Manager is therefore purportedly authorized by the Council under Ordinance 2012-41 to enter into a remedial agreement to convey the Park Property back to Cincinnati and then enter into a new Conveyance Agreement whereby Blue Ash would repurchase the Park Property from Cincinnati on similar terms as the 2006 Agreement (the "2012 Agreement").

As we know you are aware, Section 9.12 of the Charter of the City of Blue Ash provides, in pertinent
part:

No contract shall be made for a term longer than five years, except that franchises for public utility services and contracts with other governmental units for service to be received or given may be made for any period no longer than
twenty years.

If the Blue Ash City Manager signs the new 2012 Agreement providing for payment for the Park Property over a period of time greater than five years, which we understand is contemplated by

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Leal Coumel

Dinsmore
AugUSt 27, 2012
VIA EMAIL AND REGULAR MAIL

DINSMORE &SHOHL ilp

255 East Fifth Street Suite 1900 Cincinnati, OH 45202

www.dinsmore.com

Mark A. Vander Laan

(513) 977-8238 (direct) A(513) 977-8141 (fax)

mark.vanderlaan@dinsmore.com

Christopher P. Finney, Esq. Finney, Stagnaro, Saba & Patterson Co., L.P.A. 2623 Erie Avenue Cincinnati, Ohio 45208
Re: Jeffrey Capell's Taxpayer Suit Demand Letter

Dear Mr. Finney:

I.

The Taxpayer's Demand Letter

I am writing as Blue Ash City Solicitor in response to your client's taxpayer demand letter dated August 22, 2012, which I received on August 23. In that letter, your client requested that I apply for an injunction under R.C. 733-56 to R.C. 733.61:
to restrain the City of Blue Ash and its City Manager from signing an

agreement between the City of Blue Ash" ("Blue Ash") and the City of Cincinnati ("Cincinnati"), to repurchase approximately 130 acres of land, known under a
November 8, 2006 Agreement to Purchase and Sale ("2006 Agreement") as the Blue Ash Park Property ("Park Property"). For the reasons set forth in detail below, the purported grounds for the taxpayer's action are meritless, both on the applicable facts and the governing law. Accordingly, I will not apply for such an injunction. II. The Applicable Statutes

Under R.C. 733.56, a taxpayer suit can be maintained only to restrain: (1) "the misapplication of funds of the municipal corporation," (2) "the abuse of its corporate powers," or (3) "the execution or performance of any contract made in behalf of the municipal corporation in contravention of the laws or ordinance[s] governing it, or which was procured by fraud or corruption." Your client does not contend that Blue Ash funds have been misapplied, that Blue Ash has abused its corporate powers, or that the 2012 Repurchase Agreement ("Repurchase Agreement") was procured by fraud or
corruption.

The only basis alleged for your client's taxpayer action under the statute is that the Repurchase Agreement is an "illegal" contract. Specifically, he claims that signing

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