HomeMy WebLinkAboutNo. 2169 approving execution of agreement for purchase/sale of real extate related to real property and improvements located at 1303, 1315, 1321-1323 S. Michigan St. in the Sample-Ewing development area and accepting title to said propertiesL pr-
RESOLUTION NO. 2169
A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION
APPROVING THE EXECUTION OF AN AGREEMENT FOR PURCHASE AND
SALE OF REAL ESTATE RELATED TO REAL PROPERTY AND
IMPROVEMENTS LOCATED AT 1303, 1315, AND 1321 -1323 SOUTH
MICHIGAN STREET IN THE
SAMPLE -EWING DEVELOPMENT AREA AND ACCEPTING TITLE TO SAID
PROPERTIES
WHEREAS, the South Bend Redevelopment Commission ( "Commission ") is the
governing body of the City of South Bend Department of Redevelopment and pursuant to
I.C. 36- 7 -14 -1 et seq, the Commission. has -the duty to,promote the use of land in a manner
that best serves the interests of the City of South Bend and its residents and further, may
acquire by purchase interests in real property in accordance the powers granted to the
Commission under I.C. 36 -7 -14; and
WHEREAS, Arthur T. Ford and Linette L. Ford, husband and wife, are the owners
of certain real property and improvements located within the Sample -Ewing Development
Area more commonly known and numbered as 1303 South Michigan Street and Arthur T.
Ford, individually, is the owner of certain real property and improvements more commonly
known and numbered as 1315 South Michigan Street, 1321 -1323 South Michigan Street,
St. Joseph County, Indiana (the aforementioned real property and improvements are
hereinafter referenced collectively as the "Kitty Kat Lounge Properties "); and
WHEREAS, J.R.'s Kitty Kat Lounge, Inc. ( "Kitty Kat, Inc. "), an entity doing
business at the Kitty Kat Properties, is a plaintiff in a lawsuit against the City of South
Bend filed in St. Joseph Superior Court as Cause No. 71D07- 0010 -CP -01348 and
captioned .IR.'s Kitty Kat Lounge, Inc. et al. v. The City of South Bend, an Indiana
municipal corporation, et al. ( "Lawsuit "); and
WHEREAS, Arthur T. Ford is a principal in Kitty Kat, Inc, and, in order to settle
the Lawsuit, Arthur T. Ford is willing to sell his interest in the Kitty Kat Properties to the
City of South Bend and Linette L. Ford is also willing to sell her interest in the Kitty Kat
Properties to the City of South Bend; and
WHEREAS, the South Bend Common Council, fiscal body of the City of South
Bend, has previously appropriated the sum of One Hundred Seventy Five Thousand and
is
001100 Dollars ($175,000.00) in settlement of the Lawsuit with Kitty Kat, Inc. and to
complete the acquisition of the Kitty Kat Properties; and
WHEREAS, the care, custody and control of City real estate is vested in the Board
of Public Works (`Board ") pursuant to I.C. 36- 9 -6 -3; and
WHEREAS, the Board, desires that title to the Kitty Kat Properties be vested in
the "City of South Bend, for the use and benefit of its Department of Redevelopment" in
order to facilitate the Commission's efforts in redeveloping the area known as the Sample -
Ewing Development Area in which the Kitty Kat Properties are located; and
WHEREAS, it is anticipated that on May 23, 2005, the Board will adopt its
Resolution No. 40 -2005 wherein the Board approves and authorizes the execution of an
Agency Agreement appointing the Commission to act as the Board's agent for purpose of
accepting title to the Kitty Kat Properties and it is anticipated that on May 20, 2005, the
Commission will adopt its Resolution No. 2168 approving and authorizing the execution of
said Agency Agreement accepting the agency appointment from the Board; and
WHEREAS, the Agency Agreement further contemplates that the Commission
will execute an agreement entitled "Agreement for Purchase and Sale of Real Estate"
( "Purchase Agreement ") in which the City, through the Commission, acquires interest in
and title to certain real property and improvements described above as the Kitty Kat
Properties.
NOW, THEREFORE, BE IT RESOLVED by the South Bend Redevelopment
Commission as follows:
Section 1. Consistent with the above- described Agency Agreement by and
between the Commission and the Board, the Commission hereby approves of the execution
of the Purchase Agreement, the form of which is attached hereto and incorporated herein
as Exhibit "A ", with such changes as the Commission may deem necessary or appropriate
upon the advice of legal counsel, said execution thereof to be conclusive evidence of the
Commission's approval of such changes.
Section 2. The Commission hereby agrees to close the real estate transaction
under the authority granted the Commission by I.C. 36- 7 -14 -1 et seq. and, upon advice of
legal counsel, to execute all contracts and other necessary documents related to same on
behalf of the Commission.
Section 3. This Resolution shall be in full force and effect after its adoption by
the Commission.
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ADOPTED at a meeting of the South Bend Redevelopment Commission held on
May 20, 2005, in Room 1308 County-City Building, 227 West Jefferson Boulevard, South
Bend, Indiana 46601.
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT
President e�z
South Bend Redevelopment Commission
ATTEST:----7
Secretary
South Bend Redevelopment Commission
*.*Res2169_RC_ApproveAgrnt 3
AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE
THIS AGREEMENT for Purchase and Sale of Real Estate (hereafter, this Agreement) is
made and entered into effective this day of February, 2005, by and among ARTHUR T. FORD
and LINETTE L. FORD, and THE CITY OF SOUTH BEND, INDIANA, FOR THE USE AND
BENEFIT OF ITS REDEVELOPMENT COMMISSION.
WITNESSETH THAT`
WHEREAS, Arthur T. Ford and Linette L. Ford, as Husband and Wife are the owners of
certain real property and improvements located within the Sample -Ewing Development Area and
more commonly known and numbered as 1303 South Michigan Street and Arthur T. Ford,
individually, is the owner of certain real property and improvements more commonly known and
numbered as 1315 South Michigan Street, 1321 -1323 South Michigan Street, St. Joseph County,
Indiana (Arthur T. Ford and Linette L. Ford are hereinafter referenced collectively and individually
as "Seller" and the aforementioned real estate is hereinafter referenced collectively as , the
"Property "), and
WHEREAS, the City of South Bend ( "City ") acting by and through the South Bend
Redevelopment Commission ( "Buyer ") may acquire by purchase interests in real property in
accordance with the powers granted to redevelopment commissions under IC 36 -7 -14 ( "Act "); and
WHEREAS, Seller is willing to sell the Property to Buyer, and Buyer is willing to purchase
the Property from Seller upon the terms and conditions hereinafter set forth;
WHEREAS, Buyer believes that it will be of public use and benefit to purchase the Property
and that such purchase is reasonable and conforms to the Development Plan for the Sample -Ewing
Development Area; and
WHEREAS, Buyer further believes that the purchase of the Property as described herein is in
the best interests of the health, safety and welfare of the City and its residents and complies with the
public purposes and provisions of the Act and all other applicable federal, state and local laws under
which this transaction is being undertaken and assisted; and
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged, the parties hereby agree as follows:
Section 1. Definitions. The following Terms used in this Agreement shall have the
following meanings:
A. "Closing" shall mean the consummation of the purchase and sale of the
Property in accordance with the terms of this Agreement upon completion of
all conditions precedent herein required to the reasonable satisfaction of
Buyer's counsel, which shall occur on or before 5:00 p.m., March 15, 2005.
B. "Property" shall mean the real property and improvements located at 1303,
1315, and 1321-1323 South Michigan Street, City of South Bend, County of
St. Joseph County, State of Indiana and more particularly described at Exhibit
"A" attached hereto and incorporated herein.
C. ."Purchase Price" shall mean the sum of One Hundred Seventy Five and
00/100 Dollars ( $175,000.00) which shall comprise the Purchase Price for
the Property.
D. "Title Company" shall mean an ALTA-approved title insurance company
reasonably acceptable to Buyer, which ultimately will issue a Title
Commitment relating to the Property.
E. "Title Commitment" shall mean the commitment issued by a Title Company,
in which the Title Company commits itself to issue to Buyer an Owner's
Policy of Title Insurance upon demand, in the amount of the Purchase Price,
setting forth-the state of the title to the Property and subject only to those
"permitted exceptions" described in Section 4(a) of this Agreement
0 Section 2. Purchase and Sale of the Property. Subject to the terms provisions, and
conditions set forth in this Agreement, Seller agrees to sell the Property to Buyer, and Buyer agrees
to purchase the Property from Seller. The Property legally is described at Exhibit A, attached hereto.
ID
Section 3. Purchase Price for Property. The Purchase Price for the Property shall be
paid to Seller by Buyer at Closing. Real estate taxes shall be pro-rated to the Date of Closing.
Section 4. Exceptions to Title. The Property shall be sold subject to the following: -
A. The lien of general real estate taxes not yet due and payable, and
B. Liens or encumbrances of a definite or ascertainable amount and which will
be paid and discharged in full by or for Seller at or prior to the Closing, and
C. Zoning ordinances, and
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D. Easements of record, encumbrances, and restrictions of record as shown on
the Title Commitment.
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Section 5. Warranties of Seller. Seller shall warrant and represent that:
A. Seller has not received any notice of, and does not have any actual knowledge
of, any violation of any law, ordinance, code, or regulation with regard to
zoning affecting the Property.
B. Seller has not received any notice, and does not have actual knowledge or
information about, any existing or threatened condemnation or other legal
action of any kind affecting the Property.
C. . Seller has not received any notice of, and does not have any actual knowledge
of, any actual or contemplated special assessments against the Property, or
reassessments for general real estate tax purposes affecting the Property.
D. Seller owns fee simple insurable title to the Property, subject only to
exceptions stated in paragraph 4 above. From the present date to the date of
Closing, Seller shall assure that any occupants of the Property conduct
business on the Property in compliance with all federal, state, and local
environmental laws and regulations, including but not limited to those
concerning discharge into the publicly owned sewage treatment works, and
further that during such period the neither Seller nor any occupant shall create
on the Property any easements or other encumbrances, except as herein
specifically authorized, which would prevent Seller from conveying title to
Buyer subject only to such exceptions as herein permitted. The Property,
including all buildings and improvements, will be in the same condition and
repair at Closing as at the date of this Agreement, reasonable wear and tear
excepted.
E. Except for any items to be assumed by Buyer or to be prorated as set forth in
this Agreement, Seller shall be solely liable for the payment of all expenses,
liabilities, obligations, and claims arising solely out of Sellers ownership and
use of the Property prior to Closing
F. Seller has not ordered, and will not order, any material, labor, or services
which could result in the filing of any mechanics' or materialmen's lien
against the Property.
G. Seller shall have caused all occupants and tenants to have vacated the
Property on or before Closing.
Section 6. Title Insurance Commitment and Policy. At the Closing, a Policy of Title
Insurance or an endorsement to the Title Commitment shall be issued to Buyer insuring Buyer's fee
simple interest in the Property, as of the date of Closing, subject only to the exceptions stated in
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paragraph 4 above, and subject only to standard printed exceptions normally contained in Title
Insurance Policies issued by the Title Company. Buyer shall pay for all charges and costs of such
Title Insurance Policy. Buyer shall have the right to examine the Title Commitment and to certify to
Seller within 10 days after receiving the same any defects precluding insurable fee simple title in
Seller. Thereafter, Seller shall have a reasonable time (not to exceed 15 days) to correct any such
defects and to deliver to Buyer any corrective material, and Buyer thereafter shall have an additional
7 days to examine such corrective materials submitted by Seller to determine whether such defect has
been corrected. If Seller shall not have corrected any such defects or if the title insurance issuer shall
refuse to accept such corrective material and to insure against such corrective material, Buyer shall
have the option either to declare this Agreement to be null and void or to waive such defects as a
basis for such rescission and to proceed with consummation of the sale notwithstanding such defects.
Any defects not certified by Buyer to Seller as provided above shall be deemed waived by Buyer as
a basis for rescission of this Agreement unless the same shall not have been disclosed by the title
insurance comraitment.
Section 7. Inspection of the Property. Buyer shall have reasonable access to the
Property at all reasonable times during, normal business hours for the purpose of conducting
reasonably necessary inspections or testing of the Property, including any environmental inspection
or testing. Buyer shall provide Seller, or its agent, with twenty-four hours' prior telephone or written
notice of such inspection and/or tests. With respect to any intrusive inspection or test (e-g.
installation of test borings), Buyer must obtain Seller's prior written consent (which consent shall not
be unreasonably withheld or conditioned) prior to entry on the Property by Buyer or Buyer's
contractors or agents.
Section 8. Possession of the Property. Seller and Buyer agree that Seller shall deliver
possession of the Property to Buyer at Closing.
Section 9. Risk of Loss. The risk of loss incident to ownership of the Property shall pass
to Buyer at the time of delivery of possession of the Property.
Section 10. Removal of Seller's Property. On or before Closing, Seller shall have
removed, at no expense to Buyer, all equipment, personal property, and other items of any kind or
nature from the Property. Any items remaining on the 1303, 1315, 1321 and/or 1323 South Michigan
properties beyond the close of business on March 15, 2005 shall be considered abandoned and the
Commission may then choose to claim it as their own property and dispose of accordingly.
Section 11. Remedies Upon Default. If Buyer breaches or defaults under any of the
terms of this Agreement, the rights of the party not in default shall be limited to the right to recover
costs and expenses incur-red in the performance of the Agreement to the time of breach, and shall not
include the right to compel specific performance of this Agreement.
Section 12. Notices. All notices, elections, requests, and other communications hereunder
shall be in writing and shall be deemed sufficiently given if personally delivered or when deposited
in the United States mail, certified or registered postage prepaid, or when delivered to a nationally
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recognized overnight courier service with guaranteed next business day delivery and addressed as
follows (or to such other person, or to such other address, of which any party hereto shall have given
written notice as provided herein):
A. To Buyer: South Bend Redevelopment Commission
1200 County-City Building
South Bend, Indiana 46601
With a copy to: Charles S. Leone, Esq.
South Bend City Attorney
1400 County-City Building
South Bend, Indiana 46601
B. To Seller: Arthur T. Ford
c/o Gaylen W. Allsop, Esq.
ALLSOP LAW FIRM
435 Park Place Circle, Ste. 200
Mishawaka, Indiana 46545
Linette L. Ford
c/o Timothy P. McLaughlin
1017 East Jefferson Blvd.
South Bend, IN 46601
Section 13. Brokerage Commission. Seller and Buyer warrant and represent that there
are no finders or brokers entitled to fees or commissions which may be due from the introduction of.
Seller and Buyer or the purchase and sale of the Property.
Section 14. Closing of the Purchase and Sale. Provided that all conditions set forth
herein have been satisfied or waived within the time period required, the Closing shall take place at
such time and date within ten (10) days thereafter as agreed between Buyer and Seller, unless
extended in writing by mutual agreement of the parties hereto. The Closing shall occur at the offices
of Buyer's counsel, or at such other place as agreed by Buyer and Seller.
Section 15. Survival of Agreement. The representations, warranties, and covenants of
Seller herein contained (or in any other document executed by Seller to effect the transaction herein
intended) shall survive the Closing and remain in force and effect thereafter.
Section 16. Agreement Binding. This Agreement shall be binding upon and shall inure
to the benefit of Seller and Buyer and their respective successors and assigns.
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Section 17. Headings and Captions. The several headings and captions of the sections
and subsections used herein are for convenience or reference only and shall not be deemed to limit,
define, or restrict the substantive provisions of this Agreement.
Section 18. Entire Agreement. This Agreement'constitutes the entire agreement ofBuyer
and Seller with respect to the purchase and sale of the Property, superseding any prior to
contemporaneous agreement with respect thereto. No amendment or modification of this Agreement
shall be binding upon the parties unless made in writing and signed by both Seller and Buyer.
Section 19. Cooperation. Buyer and Seller shall use their best efforts and shall cooperate
fully with each other to carry out and effectuate the purchase and sale of the Property in accordance
herewith and the satisfaction and compliance with all of the conditions and requirements set forth
herein. Wherever the approvals of Buyer or Seller as herein set forth are so required, such approvals
shall not unreasonably be withheld.
Section 20. GoverninjZLaw. This Agreement and the rights of the parties hereunder shall
be governed by and construed in accordance with the laws of the State of Indiana.
Section 21. Relocation. Seller hereby expressly, voluntarily and knowingly waives and
disclaims any and all right and/or entitlement either he or any business occupying the Property may
have as a result of Buyer's purchase of the Property with respect to any and all relocation benefits.
Seller hereby releases the City of South Bend, Indiana, the South Bend Redevelopment Commission
from all obligations and liability regarding relocation benefits by executing a Waiver of Relocation
Assistance, the form of which is attached hereto and incorporated herein as Exhibit "B".
Section 22. Release. Arthur T. Ford and Linette L. Ford, hereby completely releases,
remises, acquits and forever discharges the City of South Bend, Indiana, Department of
Redevelopment, the South Bend Redevelopment Commission and their respective officers,
employees, and agents from any and all claims, demands, expenses, benefits, accruals, additional
compensation and liabilities of every kind and character and description either direct or
consequential, known or unknown may now have, may have had at any time heretofore, or may have
in the future pertaining to, arising out of or resulting from the lawsuit filed in the St. Joseph Superior
Court captioned J.R.'s Kitty Kat Lounge, Inc., et al. v. The City of South Bend, an Indiana Municipal
Corporation, et al., Cause No. 7 1 D07-00 I O-CP-0 1348 in the St. Joseph Superior Court. Arthur Ford
agrees to cause dismissal of such lawsuits as to J.R.'s Kitty Kat Lounge, Inc. within ten (10) days of
the date of closing. It is further understood and agreed that the undersigned is executing this release
upon the advice and with the consent of counsel, that the terms of this provision have been
completely explained and are understood, and that the execution of this document is a free and
voluntary act.
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IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement for Purchase and
Sale of Real Estate in duplicate counterparts, each of which shall be deemed an original, on the date
set forth above.
SELLERS
Arthur T. Ford
BUYER
\1—Linette L. Ford
THE CITY OF SOUTH BEND, INDIANA, FOR
THE USE AND BENEFIT OF ITS REDEVELOPMENT
COMMISSION
to
Attest:
By:
STATE OF INDIANA
)SS:
ST. JOSEPH COUNTY)
South Bend Redevelopment Commission
South Bend Redevelopment Commission
Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared Arthur T. Ford and Linette L. Ford and acknowledged the execution of the foregoing
Agreement for Purchase and Sale of Real Estate,
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal
on aj- 3
I
A�LW e 44e
Notar3q rublic -R'Zy I-e' 'Lir, Ii d
ResidirYg in St. Joseph County, IN
My Commission Expires:
C/ - ' —6 g
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t
STATE OF INDIANA )
)SS:
ST. JOSEPH COUNTY)
Before me, the undersigned, a Notary Public in and for said County and State, personally .
appeared the City of South Bend, Department of Redevelopment by ,
and known to me to be the and
respectively, of the South Bend Redevelopment Commission, and
acknowledged the execution of the foregoing Agreement for Purchase and Sale of Real Estate,
IN WITNES S WHEREOF, I have hereunto subscribed my name and affixed my official seal
on .2005.
My Commission Expires:
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Notary Public
Residing in St. Joseph County, IN
0 Prepared by Cheryl A. Greene, Assistant City Attorney, 1400 County -City Building, South Bend, Indiana 46601
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EXHIBIT "A"
1303 South Michigan Street, Tax Key No. 18-8004-0222:
The North Half of Lot Numbered Six (6) of Stull's Third Addition to the City of
South Bend, Indiana
1315 South Michigan Street; Tax KU No. 18-2004-0225: .
The South Half of Lot Numbered Seven (7) and lot or parcel of land 2 feet in width,
North and South, taken off of and from the entire length of the North side of Lot
Numbered Eight (8), all shown on the recorded Plat of Stull's Third Addition to the
City of South Bend, recorded in Plat Book 6, page 109 in the Office of the Recorder
of St. Joseph County, Indiana.
1321-1323 South Michigan Street; Tax Key No. 18-8004-0226:
A part of Lot Numbered Eight (8) as shown on the recorded Platt of Stull's Third
Addition to the City of South Bend, in St. Joseph County, Indiana which is described
as follows: Beginning at the East Line of said Lot Eight (8) at a point two (2) feet
South of the Northeast comer of said lot; thence running West on a line parallel with
the North line of said lot, a distance of One Hundred Sixty-five (165) feet to the West
line of said lot; thence South on said West line Forty (40) feet; thence East One
Hundred Sixty-five (165) feet to the East line of said lot; thence North on said East
line Forty (40) feet to the place of beginning.
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EXHIBIT "B"
WAIVER OF RELOCATION ASSISTANCE UNDER THE
UNIFORM RELOCATIONS ASSISTANCE AND REAL PROPERTY ACQUISITION
POLICIES ACT OF 1970, AS AMENDED
1, , am presently [the owner of] [a resident of]
property located at
I have been notified, formally, that this property is to be [acquired] [rehabilitated] [demolished] for a
program or project to be carried out by the City of South Bend, Indiana, for the use and benefit of its
Department of Redevelopment, acting by and through the South Bend Redevelopment Commission (the
Commission) and it will therefore be necessary for me to move permanently from this property. I have been
advised, further, that I am eligible for relocation payments and other relocations assistance under the Uniform
Relocations Assistance and Real Property Acquisition Policies Act of 1970 (the Act), which Act the
Commission has elected to follow with respect to said program or project. It has been explained tome that the
law provides for advisory assistance, including referral to comparable (affordable, decent, safe and sanitary)
replacement housing, for payment of actual, reasonable moving and related expenses or for a fixed expense
and dislocation allowance, at my election; and, in addition, for a replacement housing payment to assist me in
buying or renting a replacement home.
The nature and amounts of such payments and other assistance have been described to me with
specificity and in such a manner and in such sufficient detail that I understand my eligibility fully.
I have determined not to claim the benefits available to me under the Act, and hereby release the City
of South Bend, Indiana, for the use and benefit of its Department of Redevelopment, acting by and through the
South Bend Redevelopment Commission from all obligations and liability regarding them. I do this freely, on
the basis of my full understanding of all my legal rights. I am under no duress or coercion by the City of South
Bend, Indiana, for the use and benefit of its Department of Redevelopment, acting by and through the South
Bend Redevelopment Commission and make this decision without reservation or qualification.
This waiver shall expire on , unless the aforementioned program or
project has not been completed by that date. xq� e y
Date: �i-- l 3 •-- t9.� �' 1'�,ffi1�,7
Arft. _!.Ford �
Date:" -
inette L. Ford
STATE OF INDIANA )
)SS:
ST. JOSEPH COUNTY)
�+ Be re me, the undersign d, a Notary Public, in and for said County and State, personally appeared
Fn 1 L, keJ-re L , FhO , and acknowledged the execution of the foregoing as his/her voluntary act and deed.
IN WITNESS WHEREOF I have hereunto subscribed my name and affixed my official seal on the _day of
200
tltJ
Notary fy6iic e.; r �6
Residin in St. Joseph Coun ,
My Commission Expires:
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