HomeMy WebLinkAbout5A1 Real Estate Purchase Agreement (738 N Leland Ave)
REAL ESTATE PURCHASE AGREEMENT
This Real Estate Purchase Agreement (this “Agreement”) is made on December 10, 2020
(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 Catherine R. Osborne, a private individual (“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. Pursuant to the Act, Seller adopted its Resolution No. 3523 on September 10, 2020,
whereby Seller established an offering price of Twenty-Nine Thousand Dollars ($29,000), which offering price is based upon the average of two (2) appraisals for the Property ("Appraised Value"). D. Pursuant to the Act, on September 10, 2020, Seller authorized the publication, on
September 18, 2020 and September 25, 2020, respectively, of a notice of its intent to sell the
Property and its desire to receive bids for said Property on or before 9:00 a.m. on October 8, 2020. E. Seller received no bids for the Property on October 8, 2020, and, therefore, having satisfied the conditions stated in Section 22 of the Act, Seller now desires to sell the Property to
Buyer on the terms stated in this Agreement.
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”):
David Relos, Property Development Manager 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 thirty (30) 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 Buyer:
Catherine R. Osborne 517 S. River Avenue South Bend, Indiana 46601
2. PURCHASE PRICE AND EARNEST MONEY DEPOSIT A. Purchase Price. The purchase price for the Property shall be One Thousand Dollars ($1,000.00) (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”).
B. Earnest Money Deposit. Within five (5) business days after the Contract Date, Buyer will deliver to Seller the sum of One Hundred Dollars ($100.00), which Seller will hold as an earnest money deposit (the “Earnest Money Deposit”). Seller will be responsible for disposing
of the Earnest Money Deposit in accordance with the terms of this Agreement. The Earnest Money
Deposit shall be credited against the Purchase Price at the Closing or, if no Closing occurs, refunded or forfeited as provided below. C. Termination During Due Diligence Period. If Buyer exercises her right to terminate
this Agreement by written notice to Seller in accordance with Section 3 below, the Earnest Money
Deposit shall be refunded to Buyer. If Buyer fails to exercise her right to terminate this Agreement by written notice to Seller within the Due Diligence Period, then the Earnest Money Deposit shall become non-refundable.
D. Liquidated Damages. If Seller complies with its obligations hereunder and Buyer,
not having terminated this Agreement during the Due Diligence Period in accordance with Section 3 below, fails to purchase the Property on or before the Closing Date, the Earnest Money Deposit shall be forfeited by Buyer and retained by Seller as liquidated damages in lieu of any other damages.
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 a single-family residential
use (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 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, including historic
preservation requirements, building permit requirements, environmental matters, real property title
matters, utility connection issues, and the like, as applicable.
B. Due Diligence Period. Buyer shall have a period of sixty (60) days following the Contract Date to complete her examination of the Property in accordance with this Section 3 (the
“Due Diligence Period”).
C. Termination of Agreement. If at any time within the Due Diligence Period Buyer determines, in her sole discretion, not to proceed with the purchase of the Property, Buyer may terminate this Agreement by written notice to Seller’s Representative, and Buyer shall be entitled
to a full refund of the Earnest Money Deposit.
D. Waiver of Due Diligence Period. Buyer may, in her sole discretion, waive any portion or all of the Due Diligence Period. Such waiver shall be evidenced in writing to the Seller's Representative.
4. SELLER’S DOCUMENTS Upon Buyer’s request, Seller will provide Buyer a copy of all known title and survey reports and documents in Seller’s possession, if any, 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. 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
Buyer shall obtain 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 twenty (20) days after the Contract Date. The Title Commitment shall (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
special warranty 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
Within twenty (20) days after Buyer’s receipt of the Title Commitment, Buyer shall give Seller
written notice of any objections to the Title Commitment. Within twenty (20) days after Buyer’s receipt of the Survey, Buyer shall give Seller written notice of any objections to the 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 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, in which case the Earnest Money Deposit shall be refunded to Buyer. 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.
Joseph County, Indiana, unless the Parties mutually agree to an alternative method of dispute resolution. B. Waiver of Jury Trial. 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 held at the office of the Title Company, and 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 and casualty excepted.
Notwithstanding any provision of this Agreement to the contrary, in the event this transaction is
not completed due to the failure of one or more of the foregoing conditions, Seller shall have no liability for any of Buyer’s losses, damages, costs, or expenses of any kind, including attorney fees, incurred in connection with her proposed acquisition of the Property under this Agreement, except for the return of the Earnest Money Deposit, if appropriate in accordance with the terms of
this Agreement.
D. Closing Costs. 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. BUYER’S POST-CLOSING DEVELOPMENT OBLIGATIONS A. Property Improvements; Proof of Investment. Within Twelve (12) months after the Closing Date, Buyer will expend an amount not less than One Hundred Ten Thousand Dollars ($110,000.00) to redevelop the Property to allow Buyer's Use thereof (“Property Improvements”).
All Property Improvements must comply with applicable federal, state, and local laws, including,
but not limited to, applicable municipal building, zoning, and historic preservation ordinances. Promptly upon completing the Property Improvements, Buyer will submit to Seller satisfactory records, as determined in Seller’s sole discretion, proving the above required expenditures and will permit Seller (or its designee) to inspect the Property to ensure that Buyer’s Property
Improvements were completed satisfactorily.
B. Certificate of Completion. Promptly after Buyer successfully completes the Property Improvements and satisfactorily proves the same in accordance with the terms of Section 11.A. above, Seller will issue to Buyer a certificate acknowledging such completion and releasing Seller’s reversionary interest in the Property (the “Certificate of Completion”). The Parties agree
to record the Certificate of Completion immediately upon issuance, and Buyer will pay the costs
of recordation.
C. Remedies Upon Default. In the event Buyer fails to complete the Property Improvements, or satisfactorily to prove such performance, in accordance with Section 11.A above, then, in addition to pursuing any other remedies available at law or in equity, Seller shall
have the right to recover from Buyer a cash payment in an amount equal to the Appraised Value
of the Property, less the Purchase Price, due to Seller within thirty (30) days' after its written demand to Buyer. The Parties agree that Seller’s conveyance of the Property to Buyer at Closing will be made on the condition subsequent set forth in the foregoing sentence. Further, the Parties agree that Seller’s reversionary interest in the Property will be subordinate to the first-priority
mortgage encumbering the Property, if any, arising out of Buyer’s contemporaneous financing of
the redevelopment of the Property, provided that Buyer notifies Seller in advance of the execution or recording of such first-priority mortgage.
12. ACCEPTANCE OF PROPERTY AS-IS
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.
13. 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. 14. 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 diligently 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. All the Parties’ respective rights and remedies concerning this Agreement and the Property are cumulative.
15. 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. 16. 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 Agreement be presumptively resolved, against either Party. This Agreement shall be interpreted and enforced according to the laws of the State of Indiana.
17. DISPUTE RESOLUTION; WAIVER OF JURY TRIAL 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. Joseph County, Indiana, unless the
Parties mutually agree to an alternative method of dispute resolution. The Parties acknowledge that disputes arising under this Agreement are likely to be complex and they desire to streamline
and minimize the cost of resolving such disputes. In any legal proceeding, each Party irrevocably
waives the right to trial by jury in any action, counterclaim, dispute, or proceeding based upon, or related to, the subject matter of this Agreement. This waiver applies to all claims against all parties to such actions and proceedings. This waiver is knowingly, intentionally, and voluntarily made by both Parties.
18. WAIVER Neither the failure nor any delay on the part of a Party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power, or privilege preclude any other or further exercise of the
same or of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of any such right, remedy, power, or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
19. SEVERABILITY If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions of this Agreement shall continue in full force and effect unless amended or modified by mutual consent of the Parties.
20. FURTHER ASSURANCES The Parties agree that they will each undertake in good faith, as permitted by law, any action and execute and deliver any document reasonably required to carry out the intents and purposes of this
Agreement.
21. 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. 22. 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, Buyer shall provide any and all information reasonably demanded by Seller in connection with the proposed assignment and/or the proposed assignee.
23. 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.
24. 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.
25. TIME
Time is of the essence of this Agreement.
[Signature page follows.]
IN WITNESS WHEREOF, the Parties hereby execute this Real Estate Purchase Agreement to be effective as of the Contract Date stated above.
BUYER: __________________________
Catherine R. Osborne
Dated:
SELLER:
South Bend Redevelopment Commission
__________________________
Marcia I. Jones, President ATTEST:
__________________________
Quentin M. Phillips, Secretary Dated: December 10, 2020
Catherine R. Osborne (Dec 1, 2020 15:32 EST)
Catherine R. Osborne
EXHIBIT A
Description of Property
Lot Numbered Four (4) as shown on the recorded Plat of Shetterly Place 1st, an Addition to the City of South Bend, recorded June 12, 1890, in Plat Book 5, page 31, in the Office of the
Recorded of St. Joseph County, Indiana.
Parcel Key No. 018-1059-2529 Commonly Known As: 738 N. Leland Avenue, South Bend, Indiana 46616
EXHIBIT B
Form of Special Warranty Deed
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RETURN TO: AUDITOR’S RECORD
Catherine R. Osborne TRANSFER NO.__________ 517 S. River Ave. TAXING UNIT___________ South Bend, IN 46601 DATE __________________
KEY NO. 018-1059-2529 SPECIAL WARRANTY 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 SPECIALLY WARRANTS to Catherine R. Osborne, an individual with a primary
residence at 517 S. River Avenue, 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”):
Lot Numbered Four (4) as shown on the recorded Plat of Shetterly Place 1st, an Addition to the City of South Bend, recorded June 12, 1890, in Plat Book 5, page 31, in the Office of the Recorded of St. Joseph County,
Indiana. Parcel Key No. 018-1059-2529 Commonly Known As: 738 N. Leland Avenue, South Bend, Indiana 46616 The Grantor warrants title to the Property only insofar as it might be affected by any act of the Grantor during its ownership thereof and not otherwise. The Grantor hereby conveys the Property to the Grantee free and clear of all leases or licenses; 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; subject to all applicable building codes and zoning ordinances; and subject to all provisions and objectives contained in the Commission’s development area plan, and any design review guidelines associated therewith.
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. Pursuant to Section 11 of the Real Estate Purchase Agreement, made between the Grantor and the Grantee, dated December 10, 2020 (the "Purchase Agreement"), the Grantor conveys the Property to the
2
Grantee by this deed subject to certain conditions subsequent. In the event the Grantee fails to perform the Property Improvements, or satisfactorily to prove such performance, in accordance with Section 11 of the
Purchase Agreement, then the Grantor shall have the right to re-enter and take possession of the Property and to terminate and revest in the Grantor the estate conveyed to the Grantee by this deed and all of the Grantee’s rights and interests in the Property without offset or compensation for the value of any improvements to the Property made by the Grantee. The recordation of a Certificate of Completion in accordance with Section 11 of the Purchase Agreement will forever release and discharge the Grantor’s reversionary interest stated in this paragraph. 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. Signature Page Follows
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The foregoing Special Warranty Deed is executed pursuant to the terms of the Purchase Agreement.
GRANTOR: SOUTH BEND REDEVELOPMENT COMMISSION ______________________________ Marcia I. Jones, President ATTEST:
______________________________ Quentin M. Phillips, Secretary
WITNESS:
(Print Name) 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 Quentin M. Phillips, known to me to be the President and Secretary, respectively, of the South Bend Redevelopment Commission and acknowledged the execution of the foregoing Special Warranty Deed. Additionally, , being known to me to be the person whose name is
subscribed as a witness to the instrument, personally appeared and stated that he or she is not a party to the transaction described in the foregoing instrument and will not receive any interest in or proceeds from the property that is the subject of the transaction.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the _____ day of ______________, 20____.
____________________________________ Mary C. Brazinsky, Notary Public Residing in St. Joseph County, Indiana Commission Expires: December 12, 2024
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. Sandra L. Kennedy. This instrument was prepared by Sandra L. Kennedy, Assistant City Attorney, City of South Bend Department of Law, 1200S County-City Building, 227 W Jefferson Blvd., South Bend, Indiana 46601.
Real Estate Purchase Agreement Catherine
Osborne 738 N Leland Ave Final
Final Audit Report 2020-12-01
Created:2020-12-01
By:Andrew Netter (anetter@southbendin.gov)
Status:Signed
Transaction ID:CBJCHBCAABAARxh953rPbfBXoVded7pn712WMVnVdFTa
"Real Estate Purchase Agreement Catherine Osborne 738 N Lel
and Ave Final" History
Document created by Andrew Netter (anetter@southbendin.gov)
2020-12-01 - 7:57:44 PM GMT- IP address: 207.32.245.124
Document emailed to Catherine R. Osborne (osbornefcr@gmail.com) for signature
2020-12-01 - 7:58:27 PM GMT
Email viewed by Catherine R. Osborne (osbornefcr@gmail.com)
2020-12-01 - 7:58:51 PM GMT- IP address: 64.233.172.47
Document e-signed by Catherine R. Osborne (osbornefcr@gmail.com)
Signature Date: 2020-12-01 - 8:32:23 PM GMT - Time Source: server- IP address: 73.22.243.53
Agreement completed.
2020-12-01 - 8:32:23 PM GMT