Loading...
HomeMy WebLinkAbout5A8 Real Estate Purchase Agreement Heading for Home LLCREAL ESTATE PURCHASE AGREEMENT This Real Estate Purchase Agreement (this "Agreement ") is made on August 25, 2016 (the "Contract Date "), by and between the City of South Bend, Indiana, Department of Redevelopment, acting by and through its governing body, the South Bend Redevelopment Commission ( "Seller ") and Heading for Home LLC, a Delaware limited liability company with its principal place of business at 501 W. South St., South Bend, Indiana 46601 ( "Buyer ") (each a "Party" and together the "Parties "). RECITALS A. Seller exists and operates pursuant to the Redevelopment of Cities and Towns Act of 1953, as amended, being Ind. Code 36 -7 -14 (the "Act "). B. In furtherance of its purposes under the Act, Seller owns certain real property located in South Bend, Indiana (the "City "), and more particularly described in attached Exhibit A (the "Property "). C. Swing- Batter - Swing, LLC holds an exclusive option to purchase the Property from Seller upon certain conditions pursuant to the Parties' Real Estate Option Agreement dated July 30, 2015 (the "Option Agreement "), which option was placed of record by the Memorandum Of Real Estate Option Agreement dated July 30, 2015, and recorded on July 31, 2015, as Document No. 1519603 in the Office of the Recorder of St. Joseph County, Indiana. D. On August 22, 2016, pursuant to Section 9 of the Option Agreement, Swing - Batter- Swing, LLC requested the Commission's consent to an assignment of the Option Agreement from Swing- Batter - Swing, LLC to Buyer, and Seller has consented to the assignment as set forth in Resolution No. 3345 dated August 25, 2016. E. On August 22, 2016, Buyer submitted its Notice of Intent (as defined in the Option Agreement) to purchase the Property from Seller, which Seller approved as set forth in Resolution No. 3345 dated August 25, 2016. THEREFORE, in consideration of the mutual covenants and promises in this Agreement and other good and valuable consideration, the receipt of which is hereby acknowledged, Buyer and Seller agree as follows: 1. OFFER AND ACCEPTANCE A copy of this Agreement, signed by Buyer, constitutes Buyer's offer to purchase the Property on the terms stated in this Agreement and shall be delivered to Seller, in care of the following representative ( "Seller's Representative "): Brian Pawlowski Acting Executive Director Department of Community Investment City of South Bend 1400 S. County -City Building 227 W. Jefferson Blvd. South Bend, Indiana 46601 This offer shall expire fifteen (15) days after delivery unless accepted by Seller. To accept Buyer's offer, Seller shall return a copy of this Agreement, counter - signed by Seller in accordance with applicable laws, to the following ( "Buyer's Representative "): Heading for Home LLC c/o South Bend Cubs 501 West South Street South Bend, Indiana 46601 Attn: Joe Hart With a copy to: TWG Development, LLC 333 North Pennsylvania Street, Suite 100 Indianapolis, Indiana 46204 Attn: J.B. Curry With a copy to: Patzik, Frank & Samotny Ltd. 150 South Wacker Drive, Suite 1500 Chicago, Illinois 60606 Attn: Alan B. Patzik 2. PURCHASE PRICE In accordance with Section 4 of the Option Agreement, the purchase price for the Property shall be One Dollar ($1.00) (the "Purchase Price "), payable by Buyer to Seller in cash at the closing described in Section 10 below (the "Closing," the date of which is the "Closing Date "). 3. BUYER'S DUE DILIGENCE A. Investigation. Buyer and Seller have made and entered into this Agreement based on their mutual understanding that Buyer intends to use the Property for the development of a mixed -use project including, without limitation, residential, commercial, and retail/hospitality uses (the "Buyer's Use "). Seller acknowledges that Buyer's determination whether Buyer's Use is feasible requires investigation into various matters (Buyer's "Due Diligence "). Therefore, Buyer's obligation to complete the purchase of the Property is conditioned upon the satisfactory 2 completion, in Buyer's discretion, of Buyer's Due Diligence, including, without limitation, Buyer's examination, at Buyer's sole expense, of zoning and land use matters, environmental matters, real property title matters, and the like, as applicable. B. Due Diligence Period. Buyer shall have a period of sixty (60) days following the Contract Date to complete its examination of the Property in accordance with this Section 3 (the "Due Diligence Period "). C. Authorizations During Due Diligence Period. During the Due Diligence Period, Seller authorizes Buyer, upon Buyer providing Seller with evidence that Buyer has general liability insurance reasonably acceptable to Seller, in the amount of at least One Million Dollars ($1,000,000), naming Seller as an additional insured and covering the activities, acts, and omissions of Buyer and its representatives at the Property, to (i) enter upon the Property or to cause agents to enter upon the Property for purposes of examination; provided, that Buyer may not take any action upon the Property which reduces the value thereof and Buyer may not conduct any invasive testing at the Property without Seller's express prior written consent; further provided, that if the transaction contemplated herein is not consummated, Buyer shall promptly restore the Property to its condition prior to entry, and agrees to defend, indemnify and hold Seller harmless, before and after the Closing Date whether or not a closing occurs and regardless of any cancellations or termination of this Agreement, from any liability to any third party, loss or expense incurred by Seller, including without limitation, reasonable attorney fees and costs arising from acts or omissions of Buyer or Buyer's agents or representatives; and (ii) file any application with any federal, state, county, municipal or regional agency relating to the Property for the purpose of obtaining any approval necessary for Buyer's anticipated use of the Property. If Seller's written consent to or signature upon any such application is required by any such agency for consideration or acceptance of any such application, Buyer may request from Seller such consent or signature, which Seller shall not unreasonably withhold. Notwithstanding the foregoing, any zoning commitments or other commitments that would further restrict the future use or development of the Property, beyond the restrictions in place as a result of the current zoning of the Property, shall be subject to Seller's prior review and written approval. D. Termination of Agreement. If at any time within the Due Diligence Period Buyer determines, in its sole discretion, not to proceed with the purchase of the Property, Buyer may terminate this Agreement by written notice to Seller's Representative. 4. SELLER'S DOCUMENTS; ENVIRONMENTAL SITE ASSESSMENT Upon Buyer's request, Seller will provide Buyer a copy of all known environmental inspection, engineering, title, and survey reports and documents in Seller's possession relating to the Property. In the event the Closing does not occur, Buyer will immediately return all such reports and documents to Seller's Representative with or without a written request by Seller. In addition to reviewing any environmental reports provided by Seller, Buyer may, at Buyer's sole expense, 3 obtain a Phase I environmental site assessment of the Property pursuant to and limited by the authorizations stated in Section 3 above. 5. PRESERVATION OF TITLE After the Contract Date, Seller shall not take any action or allow any action to be taken by others to cause the Property to become subject to any interests, liens, restrictions, easements, covenants, reservations, or other matters affecting Seller's title (such matters are referred to as "Encumbrances "). Seller acknowledges that Buyer intends to obtain, at Buyer's sole expense, and to rely upon a commitment for title insurance on the Property (the "Title Commitment ") and a survey of the Property (the "Survey ") identifying all Encumbrances as of the Contract Date. The Property shall be conveyed to Buyer free of any Encumbrances other than Permitted Encumbrances (as defined in Section 7 below). 6. TITLE COMMITMENT AND POLICY REQUIREMENTS As a condition precedent to Buyer's obligation to close hereunder Buyer shall receive the Title Commitment for an owner's policy of title insurance issued by a title company selected by Buyer and reasonably acceptable to Seller (the "Title Company ") within ten (10) days of the Contract Date. The Title Commitment must (i) agree to insure good, marketable, and indefeasible fee simple title to the Property (including public road access) in the name of the Buyer for the full amount of the Purchase Price upon delivery and recordation of a quit claim deed (the "Deed ") from the Seller to the Buyer, and (ii) provide for issuance of a final ALTA owner's title insurance policy, with any endorsements requested by Buyer, subject to the Permitted Encumbrances. Regardless of whether this transaction closes, Buyer shall be responsible for all of the Title Company's title search charges and all costs of the Title Commitment and owner's policy. 7. REVIEW OF TITLE COMMITMENT AND SURVEY Buyer shall give Seller written notice, within ten (10) days after receipt of the last of the Title Commitment and the Survey, of any objections to the Title Commitment or Survey. Any exceptions identified in the Title Commitment or Survey to which written notice of objection is not given within such period shall be a "Permitted Encumbrance." If the Seller is unable or unwilling to correct or commence action to correct the Buyer's title and survey objections within the Due Diligence Period, Buyer may terminate this Agreement by written notice to Seller prior to expiration of the Due Diligence Period. If Buyer fails to so terminate this Agreement, then such objections shall constitute "Permitted Encumbrances" as of the expiration of the Due Diligence Period, and Buyer shall acquire the Property without any effect being given to such title and survey objections. 8. DISPUTE RESOLUTION A. Forum. Any action to enforce the terms or conditions of this Agreement or otherwise concerning a dispute under this Agreement will be commenced in the courts of St. 11 Joseph County, Indiana, unless the Parties mutually agree to an alternative method of dispute resolution. B. Waiver of Jury. Both Parties hereby waive any right to trial by jury with respect to any action or proceeding relating to this Agreement. 9. NOTICES All notices required or allowed by this Agreement, before or after Closing, shall be delivered in person or by certified mail, return receipt requested, postage prepaid, addressed to Seller in care of Seller's Representative (with a copy to South Bend Legal Department, 1200 S. County -City Building, 227 W. Jefferson Blvd., South Bend, IN 46601, Attn: Corporation Counsel), or to Buyer in care of Buyer's Representative at their respective addresses stated in Section 1 above. Either Party may, by written notice, modify its address or representative for future notices. 10. CLOSING A. Timing of Closing. Unless this Agreement is earlier terminated, the Closing shall be completed through an escrow ( "Escrow ") at the offices of the Title Company in accordance with the general provisions of the usual form of "New York Style" Deed and Money Escrow Agreement ( "Escrow Agreement ") then provided and used by the Title Company with such special provisions inserted in the Escrow Agreement as may be required to conform with this Agreement. The Closing Date shall be a mutually agreeable date not later than thirty (30) days after the end of the Due Diligence Period. B. Closing Procedure. (i) At Closing, Buyer shall deliver the Purchase Price to Seller, conditioned on Seller's delivery of the Deed, in the form attached hereto as Exhibit B, conveying the Property to Buyer, free and clear of all liens, encumbrances, title defects, and exceptions other than Permitted Encumbrances, and the Title Company's delivery of the marked -up copy of the Title Commitment (or pro forma policy) to Buyer in accordance with Section 6 above. (ii) Possession of the Property shall be delivered to the Buyer at Closing, in the same condition as it existed on the Contract Date, ordinary wear and tear excepted. C. Condition Precedent. It shall be a condition precedent to Closing that Seller will have approved the relocation of certain public utilities on and/or in the vicinity of the Property to be performed by Seller (or its designee) and will have approved the Development Agreement, dated August 25, 2016, by and between Seller and Buyer and the confirmation of the Funding Amount (as defined in the Development Agreement) to Buyer for development of the Property. D. Closing. Buyer shall pay all of the Title Company's closing and/or document preparation fees and all recordation costs associated with the transaction contemplated in this Agreement. 11. ACCEPTANCE OF PROPERTY AS -IS; DEVELOPMENT PLANS 5 A. As -Is Transaction. Buyer agrees to purchase the Property "as -is, where -is" and without any representations or warranties by Seller as to the condition of the Property or its fitness for any particular use or purpose. Seller offers no such representation or warranty as to condition or fitness, and nothing in this Agreement will be construed to constitute such a representation or warranty as to condition or fitness. Notwithstanding the foregoing, Seller hereby represents and warrants that Seller has obtained all requisite consents and approvals to execute this Agreement and perform its obligations hereunder. B. Development Plans. Buyer agrees to develop the Property and carry out Buyer's Use (as defined above) of the Property in accordance with the terms of Resolution No. 3345 dated August 25, 2016, and the Development Agreement between the Parties dated August 25, 2016. 12. TAXES Buyer, and Buyer's successors and assigns, shall be liable for any and all real property taxes assessed and levied against the Property with respect to the year in which the Closing takes place and for all subsequent years. Seller shall have no liability for any real property taxes associated with the Property, and nothing in this Agreement shall be construed to require the proration or other apportionment of real property taxes resulting in Seller's liability therefor. 13. REMEDIES Upon any default in or breach of this Agreement by either Party, the defaulting Party will proceed immediately to cure or remedy such default within thirty (30) days after receipt of written notice of such default or breach from the non - defaulting Party, or, if the nature of the default or breach is such that it cannot be cured within thirty (30) days, the defaulting Party will diligent pursue and prosecute to completion an appropriate cure within a reasonable time. In the event of a default or breach that remains uncured for longer than the period stated in the foregoing sentence, the non - defaulting Party may terminate this Agreement, commence legal proceedings, including an action for specific performance, or pursue any other remedy available at law or in equity; provided, however, no Party shall be liable for consequential, speculative or punitive damages. All the Parties' respective rights and remedies concerning this Agreement and the Property are cumulative. 14. COMMISSIONS The Parties mutually acknowledge and warrant to one another that neither Buyer nor Seller is represented by any broker in connection with the transaction contemplated in this Agreement. Buyer and Seller agree to indemnify and hold harmless one another from any claim for commissions in connection with the transaction contemplated in this Agreement. 15. INTERPRETATION; APPLICABLE LAW Both Parties having participated fully and equally in the negotiation and preparation of this Agreement, this Agreement shall not be more strictly construed, nor shall any ambiguities in this r Agreement be presumptively resolved, against either Party. This Agreement shall be interpreted and enforced according to the laws of the State of Indiana. 16. ENTIRE AGREEMENT This Agreement embodies the entire agreement between Seller and Buyer and supersedes all prior discussions, understandings, or agreements, whether written or oral, between Seller and Buyer concerning the transaction contemplated in this Agreement. 17. ASSIGNMENT Buyer and Seller agree that this Agreement or any of Buyer's rights hereunder may not be assigned by Buyer, in whole or in part, without the prior written consent of Seller. In the event Buyer wishes to obtain Seller's consent regarding a proposed assignment of this Agreement, Seller may request and Buyer shall provide any and all information reasonably demanded by Seller in connection with the proposed assignment and/or the proposed assignee. 18. BINDING EFFECT; COUNTERPARTS; SIGNATURES All the terms and conditions of this Agreement will be effective and binding upon the Parties and their successors and assigns at the time the Agreement is fully signed and delivered by Buyer and Seller. This Agreement may be separately executed in counterparts by Buyer and Seller, and the same, when taken together, will be regarded as one original Agreement. Electronically transmitted signatures will be regarded as original signatures. 19. AUTHORITY TO EXECUTE; EXISTENCE The undersigned persons executing and delivering this Agreement on behalf of the respective Parties represent and certify that they are the duly authorized representatives of each and have been fully empowered to execute and deliver this Agreement and that all necessary corporate action has been taken and done. Further, the undersigned representative of Buyer represents and warrants that Buyer is duly organized, validly existing, and in good standing under the laws of the State of Indiana. [Signature page follows.] 7 IN WITNESS WHEREOF, the Parties hereby execute this Real Estate Purchase Agreement to be effective as of the Contract Date stated above. .e. . Heading for Home LLC, a Delaware limited liability company Andrew Berlin Its: Manager Dated: SELLER: City of South Bend, Department of Redevelopment, by and through its governing body, the South Bend Redevelopment Commission Marcia I. Jones, President ATTEST: Donald E. Inks, Secretary 4000.0000069 35609161.005 IN WITNESS WHEREOF, the Parties hereby execute this Real Estate Purchase Agreement to be effective as of the Contract Date stated above. BUYER: Heading for Home LLC, a I ela e limited liabili mp 1iy Printed: Andrew Berlin Its: Manager Dated: August 25, 2016 SELLER: City of South Bend, Department of Redevelopment, by and through its governing body, the South Bend Redevelopment Commission Marcia I. Jones, President ATTEST: Donald E. Inks, Secretary PFS:007369.0002.1455397.4 EXHIBIT A Description of Property Lots 2 and 3 of the plat of Coveleski Park Minor Subdivision recorded on February 11, 2015, as Document No. 1503430 in the Office of the Recorder of St. Joseph County, Indiana. [Parcel Key Nos. 18- 3014 - 051501 and 18- 3014 - 051502] EXHIBIT B Form of Quit Claim Deed QUIT CLAIM DEED THIS INDENTURE WITNESSETH, that the City of South Bend, Department of Redevelopment, by and through its governing body, the South Bend Redevelopment Commission, 1400 S. County -City Building, 227 W. Jefferson Boulevard, South Bend, Indiana (the "Grantor ") CONVEYS AND QUIT CLAIMS to Heading for Home LLC, a Delaware limited liability company with its principal place of business at 501 W. South St., South Bend, Indiana 46601 (the "Grantee "), for and in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the following real estate located in St. Joseph County, Indiana (the "Property "): Lots 2 and 3 of the plat of Coveleski Park Minor Subdivision recorded on February 11, 2015, as Document No. 1503430 in the Office of the Recorder of St. Joseph County, Indiana. [Parcel Key Nos. 18 -3014- 051501 and 18-3014-051502] The Grantor hereby conveys the Property to the Grantee free and clear of all leases or licenses; subject to the terms and conditions stated in South Bend Redevelopment Commission Resolution No. 3345 dated August 25, 2016, and the Development Agreement between Grantor and Grantee dated August 25, 2016; subject to real property taxes and assessments; subject to all easements, covenants, conditions, restrictions, and other matters of record; subject to rights of way for roads and such matters as would be disclosed by an accurate survey and inspection of the Property; and subject to all applicable building codes and zoning ordinances. The Grantor conveys the Property to the Grantee subject to the limitation that the Grantee, and its successors and assigns, shall not discriminate against any person on the basis of race, creed, color, sex, age, or national origin in the sale, lease, rental, use, occupancy, or enjoyment of the Property or any improvements constructed on the Property. Each of the undersigned persons executing this deed on behalf of the Grantor represents and certifies that s/he is a duly authorized representative of the Grantor and has been fully empowered, by proper action of the governing body of the Grantor, to execute and deliver this deed, that the Grantor has full corporate capacity to convey the real estate described herein, and that all necessary action for the making of such conveyance has been taken and done. 1 of 2 GRANTOR: CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT Marcia I. Jones, President ATTEST: Donald E. Inks, Secretary STATE OF INDIANA ) ) SS: ST. JOSEPH COUNTY ) Before me, the undersigned, a Notary Public, in and for said County and State, personally appeared Marcia I. Jones and Donald E. Inks, known to me to be the President and Secretary, respectively, of the South Bend Redevelopment Commission and acknowledged the execution of the foregoing Quit Claim Deed. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day of 52016. My Commission Expires: Notary Public Residing in St. Joseph County, Indiana I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Benjamin J. Dougherty. This instrument was prepared by Benjamin J. Dougherty, Assistant City Attorney, 1200 S. County -City Building, 227 W. Jefferson Blvd., South Bend, Indiana 46601. 2 of 2