HomeMy WebLinkAbout6C (1)�L.(1)
• r a n • u m nan Community & Economic Development
1200 County -City Building, 227 West Jefferson, South Bend, Indiana 46601 -1830 Phone 574/235 -9371 Fax 574/235 -9021
To:
Redevelopment Commission
From:
Tamara Nicholl- Smith, Economic Development
Subject:
Contract to list real estate
Date:
November 8, 2011
Attached for consideration and approval is a listing contract with Tim Mehall, Edward
Bradley, and George Cressy of Grubb & Ellis ( Cressy & Everett for the sale of 111 S. St.
Joseph Street (College Football Hall of Fame), located in the South Bend Central Economic
Development Area.
On March 22, 2011 the Redevelopment approved the bid specs, fair - market valuation, and
advertising of legal notices to begin the disposition process for this property.
At the April 26, 2011 Redevelopment Commission meeting, staff reported that no bids had
been received on the property and that as such it would now be able to be sold at a
negotiated price.
The attached contract is a standard agreement wherein commission on the property sold
would be 5% if a tenant or purchaser is found who is not represented by another agent and
7% if the tenant or purchaser is represented by another agent. Additionally the agent
understands a prospective tenant or buyer may not be able to obtain possession until after
December 31, 2012 unless certain conditions contained in the Extension Agreement
(attached) are satisfied in which event possession may be available on November 1, 2012.
Staff requests your approval of this contract to allow for the marketing and sale of 111 S. St.
Joseph Street.
What We Do Today Makes A Difference!
LISTING CONTRACT
TO: Broker: Grubb & EllislCressy & Everett Listing Agents: Timothy J. Mehall, Edward DATE:
F. Bradley, George Cressy (the "Team ")
PROPERTY ADDRESS: College Football Hall of Fame, 11 I S. St. Joseph St., South Bend, IN
LEGAL DESCRIPTION: To Be supplied
SALE PRICE: $2,687,500, or terms acceptable to Owner. LEASE PRICE: $5.50 per square foot NNN, or terms acceptable
to Owner. The Owner agrees the price stated herein includes all mortgages, unpaid special assessments and any balances due
for any fixtures, improvements, alterations or miscellaneous equipment now on or attached to premises.
2. TERMS: ® Cash ❑ Conventional Financing ❑ Seller Financing ❑ Land Contract ®Other
3. EXCLUSIVE LISTING: In consideration of the Broker listing for sale or lease and undertaking to find a purchaser or tenant
for the real estate described above, the Owner hereby grants and gives the Broker the exclusive right and authority to sell,
exchange, or lease the same for a period commencing on the date of full execution of this ag er ement and terminating on the
date which is twelve (12) months after the date on which the College Football Hall Of Fame ceases to operate in and vacates
the real estate as provided for in the attached Exhibit "A ". Owner represents that no other agreement is now in force with any
other broker. In the event the Owner does not notify Broker in writing thirty (30) days on or before that date that this
Agreement is terminated, then this Listing Agreement shall be extended for a like period of time and shall automatically
renew for similar periods of time until terminated by the Owner as provided herein. The Broker is authorized to permit other
licensed brokers and sales persons to show this property. If the property is not presently rented, the Owner agrees not to rent
or lease the subject property while listed with the undersigned Broker without Broker's consent. The Broker is further
authorized to accept Buyer- Broker/Limited Agency notification on behalf of Owner.
4. BROKER'S FEE: In the event the Broker finds a purchaser or tenant ready, willing and able to buy or lease said real estate,
or should said real estate be sold or leased by or through the Broker, the Owner or otherwise, during said time for the price
and upon the terms named herein, or should the entity which currently owns the real estate be transferred by means of a stock
transfer or any other transfer of interest during the term of this Agreement for any other price or terms, or consideration
acceptable to the Owner, the Owner agrees to pay the Broker a commission as follows:
A. In the event Listing Agents Tim Mehall, George Cressy, or Ed Bradley (collectively the "Team ") procure a tenant
without such tenant being represented by another agent, a lease commission equal to five percent (5 %) of the total net rental
amount shall be paid to Broker within thirty (30) days of the full execution of such lease.
B. In the event the "Team" procures a tenant with such tenant being represented by another agent, a lease commission
equal to seven percent (7 %) of the total net rental amount shall be paid to Broker within thirty (30) days of the full execution
of such lease.
C. In the event the "Team" procures a purchaser without such purchaser being represented by another agent, a sale
commission equal to five 5 percent of the sum for which said property is sold, exchanged, leased or otherwise transferred
but not less than one hundred thousand dollars ($100,000), payable at closing.
D. In the event the "Team" procures a purchaser with such purchaser or tenant being represented by another agent, a
sale commission equal to seven (7) percent of the sum for which said property is sold, exchanged, leased or otherwise
transferred but not less than one hundred forty thousand dollars ($140,000), payable at closing.
E. (i) In the event a tenant procured by the "Team" purchases the real estate at the end of a lease term, or at any time
during a lease term, a sale commission commensurate with the above schedule shall be due and payable less any lease
commission that was previously paid for such lease. By way of example, a lease is fully executed with a tenant which
generates a leasing commission of $50,000. During or at the end of the term, such tenant purchases the building which
generates a sale commission of $100,000. The $50,000 lease commission is credited against the $100,000 sale commission
resulting in an amount due to Broker at closing of the sale of $50,000.
(ii) In the event of any transfer of an interest in said real estate within one hundred eighty (180) days after the
expiration of this Listing Contract and its extensions, to any person, firm or corporation who has been introduced, interested,
or shown the property during the exclusive period of this listing by the Owner or by the Broker, his Representative, or
Subagent or by a Buyer- Broker, Owner agrees to pay Broker a commission as provided by this Listing Contract and its
extensions. The Owner agrees to refer to the Broker all inquiries of brokers or others interested in his property during the
term of this contract.
(iii) Partially excluded from the term purchaser or tenant ready, willing, and able to buy or lease the real estate
subjecting Owner to a reduced payment of a Broker's fee under paragraph 4 of this Listing Agreement (" Partially Excluded
Tenants or Purchasers ") are two (2) entities which have expressed interest to buy or lease the real estate but which
negotiations are ongoing and the Owner has agreed to keep the names of the Partially Excluded Tenants or Purchasers
confidential during this period of negotiation to the extent possible under Indiana Law. Broker understands in the event of
any transfer of Interest in said real estate to either of the Partially Excluded Tenants or Purchasers during the initial ninety
(90) days of this Listing Agreement, Owner shall pay to Broker a commission in an amount equal to twenty-five percent
(25 %) of the amount specified in Paragraph 4 A and C above. After the expiration of the initial ninety (90) days of this Listing
Agreement, in the event of any transfer of an interest in real estate to the Partially Excluded Tenants or Purchasers, Owner
shall pay the full Broker's fee as defined in Paragraph 4 A through D inclusive. Broker acknowledges it is aware of the
identities of the Partially Excluded Tenants or Purchasers, and agrees to maintain the confidential nature of these identities
until released of this obligation by Owner, Partially Excluded Tenant, or as required by Indiana Law."
F. The Team and Owner acknowledge the existence of an agreement between Owner and the National Football
Foundation and College Hall of Fame, Inc. ( "NFF ") extending the term of the Transition Agreement for the Hall of Fame until
December 31, 2012. ( "Extension Agreement ") A copy of the Agreement is attached as Exhibit "A" and is incorporated into
the Listing Agreement by reference. The Team understands a prospective Tenant or Buyer of the real estate may not be able
to obtain possession until after December 31, 2012 unless certain conditions contained in the Extension Agreement are
satisfied in which event possession may be available on November 1, 2012. In the event The Team brings a party ready
willing and able to lease or buy the real estate but needs to be in possession prior to the date the real estate is available for
possession, Owner will take reasonable and best efforts to negotiate with the NFF to obtain an agreement to allow possession
of the real estate prior to the dates provided for in the Extension Agreement. In the event Owner is unsuccessful in the
negotiations with the NFF and the possession dates remain as contained in the Extension Agreement The Team will have no
right to a Broker's Fee as provided in Paragraph 4 of the Listing Contract unless such party actually buys or lease with Owner
and takes possession of the real estate at a time allowable under the Extension Agreement."
Broker may offer to share Broker's commission with subagents and Buyer- Brokers. The fee to be paid by the Owner to the
Broker for services rendered with respect to any listing and the compensation to be paid by the Broker to a subagent or Buyer -
Broker are not fixed, controlled, suggested, recommended or maintained. If the property is sold or exchanged, the
commission is due and payable at the time of closing (for a land contract when the land contract is signed; for a purchase
money mortgage when the deed and purchase money mortgage are exchanged.) For leases, the commission shall be paid at
the execution of the lease for the primary term. It is further agreed the Owner shall pay a leasing commission of three 3
percent of the Gross/Net Lease Amount for any renewals, options, or expansions by the Tenant at the subject property. The
leasing commission for the renewals, option or expansions shall be paid by the Owner when exercised by the Tenant. The
Owner agrees to include any future compensation payable to the Broker in the original lease document so that conflicts do not
occur due to subsequent sales of the subject property. Broker shall be entitled to recovery of reasonable attorney fees for the
collection of commission due. The Owner also agrees to do and to perform all that may be necessary to enforce the contract
with the purchaser for the property described herein and the collection of any money due. Commissions not paid within thirty
(30) days of execution of a lease shall be considered past due and Broker shall charge interest at the rate of Twelve (12 %)
percent on any past due commissions.
5. CONSENT TO LIMITED AGENCY: The Owner is to sign the attached Listing Contract Addendum explaining the Broker's
general company policy regarding any potential for the Broker to act as a disclosed limited agent. Unless otherwise stated
below under Further Provisions, Owner hereby consents to the showing of the Owner's property by the Broker or by any
salespersons who are affiliated with the Broker and who are acting in the capacity of a Buyer- Broker.
6. EARNEST MONEY DEPOSIT: The Broker is hereby authorized to accept an earnest money deposit with any offer to
purchase said real estate. Said deposit may be retained by the Broker until closing. Should the purchaser fail to complete said
purchase, said earnest money deposit shall be applied first to inspection fees and to Broker's advertising and other expenses.
The balance shall be divided equally between the Broker and Owner, except that Broker's portion shall in no event exceed his
regular commission. In the event of a dispute as to the release of any earnest money, the Broker may interplead all or any part
of said escrow funds to the Clerk of the Circuit Court where said real estate is located.
7. OWNERSHIP AND TITLE INSURANCE: If the property is to be sold or exchanged, Owner also agrees to furnish, within a
reasonable time prior to closing, at his expense a commitment for an Owner's Title Insurance Policy equal to the purchase
price insuring merchantable title subject to standard title exceptions. The Owner also agrees to execute and deliver a warranty
deed or land contract for the same to whom the Broker directs. To induce the Broker to enter into this Listing Contract, the
Owner hereby warrants that the undersigned is the fee simple titleholder or Land Contract purchaser of the property above
described. The Owner agrees to give possession at closing of this transaction.
8. CONDITION OF PROPERTY: Owner represents that to the best of his knowledge, the heating, cooling, electrical, roof,
septic system, well and plumbing systems in the improvements on the real estate and all other functioning systems, and/or
equipment to be included in the sale of his real estate, are now in good operating order or will be on the date of closing,
except as follows: n/a
Owner warrants that the property ® is ❑ is not connected to a municipal sewer system.
ENVIRONMENTAL: Owner represents to Broker that all environmental problems affecting the Premises have been
disclosed to Broker in writing. Owner acknowledges and agrees that Broker has not made any representation or warranty with
respect to, nor conducted any investigation of, the environmental condition or suitability for any particular use of the Premises
or any adjacent property and that Broker has no duty or obligation to Owner, any prospective purchaser or lessee or other
person or entity to make any such investigation, warranty or representation and does not by this Agreement incur any such
obligation. Owner further acknowledges and agrees that any obligation which may exist with regard to compliance with
statutes, ordinances and regulations relating to the environmental condition of all or any part of the Premises, or the use
thereof, is the sole responsibility of the Owner. Owner acknowledges that Broker has advised Owner of the potential risk of
environmental issues affecting the Premises by letter or verbally prior to entering into this Agreement. Owner agrees to
indemnify and hold Broker harmless against any liability, expense, cost, attorney's fees or other fees which Broker may incur
as a result of any environmental problems associated with the Premises.
10. MLS INFO: It is understood that the Broker may rely on the validity of the data pertaining to this Listing Contract which has
been provided by the Owner, and the Owner agrees that the broker may disclose such data to the Loopnet service, and that the
Broker will furnish notice to such entity of all changes of information concerning the subject property as agreed by the
Owner, and that upon completion of a signed Contract to Purchase on said property, the Broker will notify the Loopnet
service of said sale and authorize the dissemination of sales information.
H. BROKER'S SERVICES: It is understood by the Owner that the services of the Broker herein are to use his best efforts to find
a purchaser or tenant for the real estate above described during the term of this Contract and that the Broker is not and shall
not be charged with the responsibility for the custody, management, care, maintenance, protection or repair of the real estate
and improvements nor for the protection or custody of the personal property located therein. The Broker shall not install a
sign on said real estate without Owner's written approval. The broker is authorized to advertise Owner's property as broker
deems advisable in the local newspaper or other mediums of advertisement and further authorized to take and use photographs
and video of the interior and exterior of the property.
It is agreed the Broker, Subagent or Buyer- Broker or his representative and all prospective purchasers or tenants shall at all
reasonable times have access to said premises and appurtenances located thereon for the purpose of showing or inspecting
same.
12. AUTHORITY TO OBTAIN MORTGAGE INFORMATION: The Owner does hereby authorize the lending institution with
whom the Owner presently has a mortgage to divulge any mortgage information required by the Broker.
13. FAIR HOUSING: This property is offered for sale without regard to race, color, religion, sex, handicap, familial status or
national origin in accordance with state and federal laws.
14. INDEMNIFICATION: This information is true and correct to the best of Owner's knowledge and is provided for the purpose
of being relied upon. In the event any dispute arises concerning the condition of said real estate or any equipment contained
therein, or arises from incorrect, misrepresented or withheld information, the Owner hereby agrees to and does indemnify and
hold the Broker and his agents and subagents harmless from any and all claims, demands, damages, suits, liabilities, cost or
expense, including reasonable attorney's fees incurred and arising out of all such disputes other than disputes arising out of
defects in the real estate specifically set forth in the foregoing exceptions. In the event of the transfer of any interest in the
above described real estate to another party, this provision shall survive such passing of interest. The Owner herewith
provides detailed information respecting said property for the Broker's use and for the use of the Indiana Board of Realtors
and its subscribers, which said information is incorporated herein and made a part hereof by reference.
15. DISPUTE RESOLUTION: All disputes in the enforcement of this contract shall be adjudicated in a State or Federal Court
which is located in St. Joseph County, Indiana.
16. ENFORCEMENT OF AGREEMENT: The Owner shall pay upon demand all the broker's costs, charges, and expenses,
including reasonable fees of attorneys, agents, and others retained by the broker incurred in enforcing the Owner's obligations
hereunder or incurred by the broker in any litigation, negotiation, arbitration, or transaction involving the Owner in which the
broker becomes involved or concerned without the broker's fault.
17. FURTHER PROVISIONS: Additional paragraphs numbered , attached to this Contract are part of this Contract and
the terms and provisions thereof are binding upon the Owner and broker.
18. OWNER ACKNOWLEDGES THAT:
a. This Contract is binding upon the Owner's heirs, administrators, executors or assigns.
b. He has read and understands this Listing Contract and profile sheet.
C. Broker and Broker's subagents are exclusively the agents of the Owner and not the agent of the Purchaser;
however, the agent and subagents are under a duty to treat all parties in the transaction fairly. If a limited
agency will exist in the future, proper disclosure will be made to the Seller in advance of the negotiations
for the sale or lease of the subject property.
d. A Buyer- Broker, even if compensated by the Listing Broker, will represent the interest of the Buyer.
This is a legal, binding contract. If not understood seek legal advice.
The undersigned accepts this Listing Contract and agrees to the terms this day of , 20_.
OWNERS:
ADDRESS:
REAL ESTATE BROKER: Grubb & EllislCressy & Everett
LISTING AGENTS:
PHONE:
Timothy J. Mehall Edward F. Bradley, Jr.
George S. Cressy, Jr.
GRUBB & ELLISICRESSY & EVERETT
LISTING CONTRACT ADDENDUM
REAL ESTATE AGENCY RELATIONSHIPS
When representing a buyer, seller, lessor, lessee or other client as an agent, Realtors pledge themselves to protect and promote the
interests of their client. This obligation of absolute fidelity to the client's interest is primary, but it does not relieve Realtors of their
obligation to treat all parties fairly and honestly. When serving a buyer, seller, lessor, or lessee, or other party in a non - agency
capacity, Realtors remain obligated to treat all parties honestly.
Grubb & EllisjCressy & Everett and its agents shall act as single agents when representing either the buyer /lessee or the seller /lessor,
or as limited agents when selling a Company listing to a buyer /lessee client. In the case of limited agency, Grubb & EllisjCressy &
Everett and its agents will not disclose to the buyer /lessee the lowest price that the seller /lessor will take, nor disclose to the
seller /lessor the highest price that the buyer /lessee will pay. Should there be other terms that either party considers as strictly
confidential, specifics regarding these terms can be included in the limited agency consent agreement and thereby held as secret from
the other client.
The Code of Ethics of the NATIONAL ASSOCIATION OF REALTORS requires us as the listing broker to state our general
company policies regarding cooperation with other licensees in the sale or leasing of your real estate.
You the Seller /Lessor consent to our marketing of your real estate with the assistance of cooperating licensees who operate in those
capacities indicated by a check on the lines below:
® Subagents
Subagents are brokers who procure buyer /lessees, but who agree to act as an agent of the listing broker, and who represent the
interest of the seller /lessor. Grubb & EllisjCressy & Everett's policy is to pay a Subagent a portion of the sale or lease
commission.
® Buyer /lessee- Brokers
Buyer /lessee- Brokers are licensees who represent the interest of buyer /lessees, even if compensated by the listing broker.
Grubb & EllisjCressy & Everett's policy is to pay a Buyer /lessee- Broker a portion of the sale or lease commission.
® Limited Agency
Grubb & EllisjCressy & Everett may occasionally serve as a buyer /lessee - broker representing a buyer /lessee client. That
raises the possibility that such a client might desire to view and perhaps purchase or lease your real estate. You as
seller /lessor and Grubb & EllisjCressy & Everett as listing broker hereby agree that neither we nor any salesperson under our
supervision will represent the interest of any person other than you in the sale of your real estate, without disclosure to you for
any showings and written disclosure to you before negotiations are initiated with such buyer /lessee clients.
Dated this _ day of , 20_.
Seller /Lessor
Grubb & EllisjCressy & Everett
Seller /Lessor Listing Agents