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HomeMy WebLinkAbout6B(8) Contract for Sale of Land with Oliver Park PartnersCommunity & Economic (�) /3 ( s/) SOUTH 6� IV Development �a 1865 1200 County -City Building, 227 West Jefferson, South Bend, Indiana 46601 -1830 Phone 574/235 -9371 Fax 574/235 -9021 To: Redevelopment Commission From: Matthew Sikora, Economic Development Planner Subject: Request for approval of Contract for Sale Date: April 12, 2011 Attached for approval is the "Contract for Purchase and Sale" for a proposed development in Oliver Industrial Park. Oliver Plow Partners, L.P. plans to construct an approximately 40,000 SF building (of which 5,500 SF is office and showroom) at a cost of $1,750,000 for its tenant ABC Supply Company. The project will retain 10 existing jobs and one part -time job with a total annual payroll of $419,958, while adding two more positions totaling $65,000 per year. The contract includes a sale price of $22,000 for a 4.64 acre portion of Oliver Industrial Park Lot #8 (7.84 acres) and an agreement for the Commission to utilize up to $200,000 in TIF funds to complete necessary site improvements and a commitment to ensure the environmental integrity of the site. Staff seeks approval of the "Contract for Purchase and Sale" by the Commission. What We Do Today Makes A Difference! CONTRACT FOR PURCHASE AND SALE This CONTRACT OF PURCHASE AND SALE (hereinafter "Agreement "), dated this day of , 2011, between OLIVER PLOW PARTNERS, LP (the "Company ") and the SOUTH BEND REDEVELOPMENT COMMISSION (the "Commission "), the governing body of the Department of Redevelopment of the City of South Bend, Indiana, existing and operating under the provisions of Indiana Code § 36 -7 -14, as amended; WITNESSETH: 1. The Commission is the owner of record of land in the Oliver Industrial Park with the legal description as follows: See Exhibit "A" Consisting of 4.64 acres, more or less (the "Property "). The Commission has completed the disposition process under Indiana Code § 36 -7 -14- 22 and desires to sell the Property to the Company under the terms and conditions set forth herein pursuant to Indiana Code § 36- 7- 14- 22(h). 2. The Commission shall convey the Property to the Company in exchange for cash in the amount of Twenty -two Thousand and 00 /100 Dollars ($22,000.00), and subject to the conditions contained in paragraph 6 of the Agreement (the "Purchase Price "). 3. The Commission hereby represents it is not aware of any easements or encumbrances other than those of record. At Closing, the Commission shall convey the Property to the Company by quitclaim deed in the form set forth at Exhibit `B" subject to the following: (a) ' Applicable zoning laws and regulations; (b) All easements, conditions, reservations, leases, licenses, access agreements and restrictions as may appear of record, be apparent by an inspection of the Property, or of which the Company has actual or constructive knowledge; and (c) Subject to the obligation of Grantee to convey back to Grantor the real estate pursuant to the terms of paragraph 6(c) of the Contract for the Purchase of Real Estate executed by Grantor and Grantee. As a government entity, the Commission is exempt from taxation under Indiana law, and therefore, no taxes should have accrued against the Property while the Commission is the owner of the Property. The Company agrees to accept the Property under the above - described circumstances and subject to the above - described restrictions and encumbrance provided that the Commission provides the Company a title policy from Meridian Title Company (the "Title Company ") showing that no taxes are due and owing on the Property., 4. At Closing, the Commission shall provide a title policy (the "Title Policy ") from the Title Company acceptable to the Company insuring the transfer of the Property to the Company in the amount of Twenty -two Thousand and 00 /100 Dollars ($22,000.00). Other than each party's respective attorney's fees, the Commission shall pay all closing expenses and fees, which shall be evidenced by a Closing Statement prepared by the Title Company and signed by the parties hereto or their respective representatives at closing. The parties each represent that no real estate commissions are due and owing to any party with respect to this transaction. 5. The Closing shall be held at a mutually agreed upon location and time (herein referred to as the "Closing ") on a date which is not more than thirty (30) days from the date of this Agreement or as otherwise agreed (the "Closing Date "). At Closing: (a) Commission shall deliver to the Company the duly executed and acknowledged quitclaim deed conveying the Property to Company as provided in Paragraph 3. (b) Company shall deliver to the Commission: (i) the cash portion of the Purchase Price; (ii) a Certificate of Incumbency showing the Company has authorized the execution and performance of this Agreement; and (iii) evidence satisfactory to the Commission the Company has performed or is capable of performing the conditions set out in paragraph 6 of this Agreement. (c) Possession shall be delivered at Closing. (d) The parties shall pay all closing costs at Closing in accordance with Section 4 and shall execute a Closing Statement evidencing such fees. 6. A. Commission has informed the Company that there exists certain soil and groundwater contamination at the Property to be purchased by Company. (a) The Commission agrees to indemnify, defend and hold harmless the Company, their successors, assigns, lenders and lessees (and their respective partners, officers, directors, employees, affiliates and insurers) from any and all claims, suits, costs, losses, damages, fees and expenses (including reasonable attorneys' fees) resulting from or relating to the presence of contamination existing at the Property as of the date of closing. Notwithstanding the foregoing, the duty to indemnify shall be deemed terminated at such time, if any, that Commission receives and records a covenant - not -to -sue under the Indiana Voluntary Remediation Program, or such other written confirmation or certification from the Indiana Department of Environmental Management ( "IDEM ") under any other applicable State of Indiana program, including without limitation a 2 "no further action" letter, that covers the Property and the contaminates currently present at, in or under the Property and provides that no additional removal or remediation is required at the Property Site. In consideration for the indemnity from the Commission, the Company hereby covenants not to sue the Commission under any common law or statutory cause of action (except for an action to enforce this indemnification), now existing or available in the future for any and all costs, expenses, fees, liabilities or obligations attributable to a voluntary effort by the Commission, its officers, members, employees of the City of South Bend, or their agents to investigate, contain, cleanup, remove, treat, or in any way address soil and groundwater contamination existing prior to or at the time of closing and located in, at, under (including the groundwater) or upon or released from the Property. The Company hereby represents and warrants that their post- closing activities shall not involve the use, generation, processing, treatment or storage of any hazardous substances unless such activities are conducted in material compliance with applicable environmental laws and further shall not include the disposal of hazardous. substances into or upon the Property. (b) In the event Company exercises its right to indemnification, pursuant to paragraph 6(a) of this Agreement, against the Commission, the Company shall provide reasonable access by the Commission to the Property in order to conduct reasonably necessary soil and groundwater testing (the "Testing "). In the absence of an emergency, the Commission will provide Company five (5) business days notice of the need for the Testing, and will take reasonable steps to prevent disruption of the Company's use of the Property. (c) The Company warrants it will use the Property consistent with current zoning. This use shall be supported by the construction of an approximately 40,000 square foot building for lease to ABC Supply Company. (d) The Company agrees it will convey back the Property to the Commission in the event it (i) fails to obtain a Building Permit within six (6) months after the date of this Agreement consistent with paragraph 6(b) above; or (ii) fails to develop the Property pursuant to paragraph 6(b) above within three (3) years of the date of this Agreement. The Commission will pay to the Company the cash amount of the purchase price herein. (e) The Company shall not discriminate on the basis of race, color, creed, sex, or national origin in the sale, lease, rental, use or occupancy of the Property. B. It is understood that there is a distinct likelihood that the Company, or its designated agent, may incur additional expense due to the former industrial character of the 3 Property. The Commission agrees to compensate, or reimburse, the Company for any additional expense caused by extraordinary site conditions, more specifically the removal of solid debris from demolition of the former facilities on the Property, as set forth below: (a) The Company shall perform all improvements per the designed Engineering documents (Danch, Harper & Associates, February 2, 2011) approved by the St. Joseph County Building Department and City of South Bend Engineering Department. (b) The Company anticipates encountering construction debris from the former facilities that were located on the Property and demolished. (c) In order to deliver a buildable site, the Commission agrees to reimburse the Company for any excavation and removal of construction debris required for the installation of improvements per the approved plans and specs as described in paragraph 6.B.(a), and as approved by the City of South Bend Engineering Department. (d) In order to expedite the construction process, the Company shall enter into a separately agreed upon process, with the City of South Bend Department of Public Works, in order to accurately record the additional work required in order to establish the reimbursement amount for the work to be performed by the Company. 7. (a) In order to encourage development in the Oliver Industrial Park, the Commission shall contribute up to Two Hundred Thousand and 00 /100 ($200,000.00) Dollars for site improvements consistent with the use of tax incremental finance ( "TIF ") funds. The Parties shall determine the specific use of the TIF funds so long as they are eligible uses under Indiana law. A list of the site improvements made shall be submitted to the Commission as part of its files for this Project. (b) The Commission shall support a seven (7) year real estate tax abatement totaling One Hundred Seventy -one Thousand Two Hundred Fifty -two and 00 /100 ($171,252.00) Dollars. 8. This Agreement may not be assigned by the Commission to any other party without the written consent of the Company, which consent may be withheld for any reason, except in the case of an assignment any to entity of the City of South Bend or the Commission or to any entity in which the City of South Bend or the Commission has a controlling interest or is the general partner, such consent shall not be unreasonably withheld. This Agreement may not be assigned by the Company without the written consent of the Commission, which consent may be withheld for any reason. 4 9. This Agreement embodies the entire agreement between the parties and cannot be varied except by the written agreement of the parties. No representation, promise, or inducement not included in this Agreement shall be binding upon the parties hereto. 10. Time is of the essence of this Agreement. 11. Any notices, requests, or other communications required or permitted to be given hereunder shall be in writing and shall be either (i) delivered by hand, (ii) mailed by United States registered mail, return receipt requested, postage prepaid, (iii) sent by a reputable, national overnight delivery services (ie: Federal Express), or (iv) sent by facsimile (with the original being sent by one of the other permitted means or by regular United States mail) and addressed to each party at the applicable address set forth herein. Any such notice, request, or other communication shall be considered given or delivered, as the case may be, on the date of hand delivery (if delivered by hand), on the third (3rd) day following deposit in the United States mail (if sent by United States registered mail), on the next business day following deposit with an overnight delivery service with instructions to deliver on the next day or on the next business day (if sent by overnight delivery service), or on the day sent by facsimile (if sent by facsimile, provided the original is sent by one of the other permitted means as provided in this paragraph or by regular United States mail). Company: Manette Tepe Oliver Plow Partners, LP 227 S. Main St., Ste 200 South Bend, Indiana 46601 Commission: Donald E. Inks, Director Department of Redevelopment City of South Bend, Indiana 1200 City- County Building 227 W. Jefferson Boulevard South Bend, IN 46601 -1830 With copy to: With copy to: Charles Leone, Esq. City Attorney City of South Bend, Indiana 1400 City- County Building 227 W. Jefferson Boulevard South Bend, IN 46601 -1830 12. All the terms and conditions of this Agreement are hereby made binding on the successors and permitted assigns of both parties hereto. 13. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana and venue for any action shall be St. Joseph County, Indiana. 14. This Agreement shall not be effective or binding until fully executed by all the parties. 15. This Agreement will survive closing, including but not limited to, the provisions of paragraph 6(b), (c), and (d). 16. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 17. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to accomplish the actions contemplated by this Agreement and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. 18. This Agreement was negotiated by the parties at arm's length and each of the parties hereto has reviewed the agreement after the opportunity to consult with independent counsel. Neither party shall maintain that the language in the Agreement shall be construed against any signatory hereto. 19. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 20. The undersigned persons executing and delivering this Agreement on behalf of each of the parties respectively represent and certify that they are the duly authorized officers of each and have been fully empowered to execute and deliver this Agreement and that all necessary corporate action has been taken and done. The undersigned persons executing and delivering this Agreement on behalf of the Company represent and certify that (i) they are the officers of the Company duly authorized by a resolution of the Members to purchase the Property and enter into this Agreement and (ii) that such action is consistent with the Company's 0 Articles of Organization, Operating Agreement, and prior Resolutions, and to the extent that this Agreement or any obligation herein conflicts with said documents, the Company by approving this Agreement shall deem such documents to be amended to allow for this Agreement and any action or obligation contemplated or required hereunder. This Agreement may be executed in duplicate or through counterparts. (remainder of page intentionally left blank) 7 EXECUTED in duplicate, each part being an original, as of the day and year set forth above. ATTEST: Signature Printed Name and Title RIN Printed: Title: ATTEST: Signature Printed Name and Title Gibney \o1iverP1ow \purehaseSCon3 OLIVER PLOW PARTNERS, LP Printed: Title: General Partner CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT, by and through the South Bend Redevelopment Commission, its governing body STATE OF INDIANA ) ) SS: ST. JOSEPH COUNTY ) Before me, the undersigned, a Notary Public for and in said County and State this day of , 2011, personally appeared and known to be the and , respectively, of the South Bend Redevelopment Commission, the governing body of the City of South Bend, Department of Redevelopment and acknowledged execution of the foregoing Contract for Purchase and Sale on behalf of said Commission and Department. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal. Notary Public Resident of the County, Indiana My commission expires: STATE OF INDIANA ) ) SS: ST JOSEPH COUNTY ) Before me, the undersigned, a Notary Public for and in said County and State this day of , 2011, personally appeared , General Partner of Oliver Plow Partners, LP and acknowledged execution of the foregoing Contract for Purchase and Sale on behalf of said Partnership. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal. Resident of My commission expires: County, Indiana Notary Public FNI41BIT A Legal Description That part of the Southeast Quarter of Section 11, Township 37 North, Range 2 East, Portage Township, City of South Bend, St. Joseph County, Indiana which is described as: Lot #2 of the Plat of "Oliver Plow Works First Minor Subdivision" as recorded by Document No. 1105030 in the Records of the St. Joseph County, Indiana Recorder's Office. Containing 4.64 Acres more or less. Subject to all legal highways, easements and restrictions of record. RETURN TO: EXHIBIT B Deed for the Property AUDITOR'S RECORD Transfer No. Grantee's Address and Mail Tax Statements to: Taxing Unit Date Property Address: Tax ID No. QUIT CLAIM DEED CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT, The Grantor Releases and Quit Claims to OLIVER PLOW PARTNERS, LP, The Grantee For and in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, the following described real estate in St. Joseph County, in the State of Indiana, to wit: That part of the Southeast Quarter of Section 11, Township 37 North, Range 2 East, Portage Township, City of South Bend, St. Joseph County, Indiana which is described as: Lot #2 of the Plat of "Oliver Plow Works First Minor Subdivision" as recorded by Document No. 1105030 in the Records of the St. Joseph County, Indiana Recorder's Office. Containing 4.64 Acres more or less. Subject to: (a) Applicable zoning laws and regulations; (b) All easements, conditions, reservations, leases, licenses, access agreements and restrictions as may appear of record, be apparent by an inspection of the Property, or of which the Company has actual or constructive knowledge; and (c) Subject to the obligation of Grantee to convey back to Grantor the real estate pursuant to the terms of paragraph 6(c) of the Contract for the Purchase of Real Estate executed by Grantor and Grantee. Signed and dated this day of , 2011. City of South Bend, Department of Redevelopment STATE OF INDIANA ) ) SS: ST. JOSEPH COUNTY ) Before me, a Notary Public in and for said County and State, personally appeared , to me known to be an authorized representative of the Grantor, and acknowledged the execution of the foregoing Quit Claim Deed on the day of 2011. My Commission Expires: , Notary Public Residing in St. Joseph County THIS INSTRUMENT PREPARED BY: Richard A. Nussbaum, II, Attorney at Law, 5th Floor - Plaza Building, 210 S. Michigan St., P.O. Box 300, South Bend, Indiana 46624. 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 - Richard A. Nussbaum, II.