Loading...
HomeMy WebLinkAboutResolution No 45-2022 - Accepting Purchase of Real Property SBCSC Admin. Building INTER-OFFICE MEMORANDUM Department of Law City of South Bend 227 W Jefferson Blvd TO: Board of Public Works, Theresa Heffner, Michael Schmidt FROM: Jenna Throw, Assistant City Attorney SUBJECT: Resolution No. 45-2022 – Authorizing Purchase of South Bend Community School Corporation Administration Building DATE: September 20, 2022 Members of the Board, Ms. Heffner, and Mr. Schmidt: As you may know, the City has been in discussions with the South Bend Community School Corporation for the purchase of the Administration Building located at 215 Dr. Martin Luther King Jr. Blvd. Pursuant to Indiana Code 36-1-11-8, this purchase is authorized by the adoption of substantially identical resolutions by each party to the transaction. As the Board of Public Works is the holder of real property owned by the City, we request that the Board adopt this Resolution to authorize the purchase of the Administration Building and authorize City personnel to execute the Purchase Agreement, Lease, and any other documents necessary to effectuate the transfer of the property from the School Corporation to the City. Attached to the Resolution is the Purchase Agreement between the Parties, as well as a form of Lease to govern possession of the Administration Building between the closing date and the date that possession transfers to the City. RESOLUTION NO. 45-2022 A RESOLUTION OF THE CITY OF SOUTH BEND, INDIANA, BOARD OF PUBLIC WORKS AUTHORIZING THE PURCHASE OF REAL PROPERTY FROM THE SOUTH BEND COMMUNITY SCHOOL CORPORATION WHEREAS, the City of South Bend, Indiana, Board of Public Works (the "Board of Public Works") exists pursuant to I.C. § 36-4-9-5, holds real property owned by the City of South Bend, Indiana (the "City") pursuant to I.C. § 36-9-6-3, and is authorized to receive such property from another governmental entity pursuant to I.C. § 36-1-11-8; and WHEREAS, the South Bend Community School Corporation (the “School Corporation”) owns certain real property in South Bend, Indiana, commonly known as 215 Dr. Martin Luther King, Jr. Boulevard, South Bend, Indiana 46601, and more particularly described in attached Exhibit A (the “Property”) and wishes to transfer its interests in that real estate to the City of South Bend as further described in the Purchase Agreement attached hereto as Exhibit B after determining a transfer to a governmental entity rather than a sale or lease to a nongovernmental entity would be in the best interests of School Corporation and the public; and WHEREAS, the South Bend Community School Corporation (the “School Corporation”) is authorized to transfer property to another governmental entity pursuant to I.C. § 36-1-11-8 upon terms and conditions agreed upon by the entities as evidenced by adoption of a substantially identical resolution by each entity; and WHEREAS, the School Corporation desires to sell and the City desires to acquire the Property, in exchange for the transfer of Two Million Eight Hundred Thousand Dollars ($2,800,000.00) from the City to the School Corporation. WHEREAS, in order for the City and the School Corporation to execute the Purchase Agreement and Closing Documents, the Board of Public Works desires to authorize the City’s purchase of the Property from the School Corporation pursuant to I.C. § 36-1-11-8 and subject to the terms of this Resolution. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF SOUTH BEND BOARD OF PUBLIC WORKS AS FOLLOWS: 1. The Board of Public Works hereby approves the purchase of the Property from the School Corporation in accordance with I.C. § 36-1-11-8. The City Controller, Daniel T. Parker, is authorized and directed, in the name of the City, to execute a Purchase Agreement in a form substantially similar to the document attached hereto as Exhibit B, in a final form approved by the City of South Bend Department of Law. The City Controller, Daniel T. Parker, is also authorized to execute a Lease Agreement for the School Corporation’s lease of the Property, in a form substantially similar to the document attached in Exhibit C, in a final form approved by the City of South Bend Department of Law. 2 2.The Board of Public Works hereby authorizes City Controller, Daniel T. Parker, in the name of the City, or his designee to execute any other document necessary to effect the City’s acceptance of the Property from the School Corporation. 3. This Resolution will be in full force and effect upon its adoption by the Board of Public Works. ADOPTED at a meeting of the City of South Bend, Indiana, Board of Public Works held on September 27, 2022, at 1308 County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601 and electronically. September 27, 2022 EXHIBIT A Description of Property Parcel Key No. 018-3003-0057 State Parcel ID 71-08-12-158-012.000-026 Commonly known as 215 S. Dr. Martin Luther King, Jr. Blvd., South Bend, Indiana 46601 Legal Description: Lot Numbered Forty-nine (49) as shown on the Original Plat of the Town, now City, South Bend, Indiana; excepting therefrom the West 15 feet. EXHIBIT B Purchase Agreement EXHIBIT C Lease REAL ESTATE PURCHASE AGREEMENT This Real Estate Purchase Agreement (this “Agreement”) is made effective on the 27th day of September, 2022 (the “Contract Date”), by and between South Bend Community School Corporation, an Indiana public school corporation (“Seller”) and the City of South Bend, Indiana, a municipal corporation, acting by and through the South Bend, Indiana Board of Public Works (“Buyer”) (each a “Party” and together the “Parties”). RECITALS A.Seller owns certain real property located in South Bend, Indiana, commonly known as parcel number 71-08-12-158-012.000-026 and more particularly described in attached Exhibit A (the “Property”). B.Seller represents that the Property has not been used for classroom instruction and does not exceed two hundred thousand (200,000) gross square feet in area. C.Seller desires to sell and Buyer desires to purchase the Property under the terms and conditions set forth herein. D.Seller has passed a resolution of intent to sell the Property and conducted a public hearing pursuant to Indiana Code § 36-1-11. E.The Property has not been used for classroom instruction and does not exceed two hundred thousand (200,000) gross square feet in area. F.Seller and Buyer have adopted substantially similar resolutions authorizing the sale and purchase on the terms and conditions set forth in this Agreement pursuant to Indiana Code § 36-1-11-8 and as allowed under §20-26-5-4(a)(6) and 20-26-7-1. 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.RECITALS The recitals above are hereby incorporated into this Agreement by reference. 2.OFFER AND ACCEPTANCE A copy of this Agreement, signed by Seller constitutes Seller’s offer to sell the Property and once signed by Buyer, constitutes Buyer’s offer to purchase the Property on the terms stated in this Agreement. A copy signed by Buyer shall be delivered to Seller, in care of the following representative (“Seller’s Representative”): Kareemah Fowler Assistant Superintendent of Business and Finance 215 South Dr. Martin Luther King Jr. Blvd. South Bend, Indiana 46601 Seller shall return a signed copy of this Agreement to the following representative (“Buyer’s Representative”): Daniel T. Parker Controller Department of Administration and Finance City of South Bend 1200 N. County-City Building 227 W. Jefferson Blvd. South Bend, Indiana 46601 3.PURCHASE PRICE The purchase price for the Property shall be Two Million Eight Hundred Thousand Dollars ($2,800,000.00) (the “Purchase Price”), payable by Buyer to Seller via wire in US Dollars at the closing described in Section 14 below (the “Closing,” the date of which is the “Closing Date”). 4.BUYER’S DUE DILIGENCE A.Investigation. 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, environmental matters, and real property title matters. B.Due Diligence Period. Buyer shall have a period of one hundred twenty (120) days following the Contract Date to complete its survey, inspection, and examination of the Property in accordance with this Section 4 (the “Due Diligence Period”). Buyer may provide written notice to Seller, to the representative described in Section 2 above, that Buyer waives the remainder of the one hundred twenty (120) day Due Diligence Period. Upon such written notice, the Parties may proceed to Closing prior to the expiration of the Due Diligence Period described in this Section. C.Authorizations During Due Diligence Period. During the Due Diligence Period, Seller authorizes Buyer at Buyer’s expense to: (i)enter upon the Property during reasonable times during Seller’s normal business hours and with advance notice to Seller, or to request Seller’s permission for Buyer’s agents to enter upon the Property for purposes of examination or inspection; provided, that Buyer may not take any action upon the Property which defaces, threatens, or damages the Property or reduces the value thereof. Buyer may not conduct any testing at the Property without Seller’s express prior written consent. Further provided, Buyer shall promptly restore the Property to substantially the same condition prior to entry. Said inspections are to be at Buyer’s expense by qualified, proficient, licensed inspectors or contractors selected by Buyer. Inspections may include, but are not limited to, the presence of asbestos, hazardous and/or toxic materials, underground storage tanks and any other environmental defects, as well as the condition of the following systems and components: heating, cooling, electrical, plumbing, roof, walls, ceilings, floors, foundation, parking, sidewalks, roads, drainage, common areas, and sewers; and (ii)file any application with any federal, state, county, municipal or regional agency relating to the Property for the purpose of obtaining any approval necessary for Buyer’s anticipated use of the Property. If Seller’s written consent to or signature upon any such application is required by any such agency for consideration or acceptance of any such application, Buyer may forward necessary, reasonable forms to and request from Seller such consent or signature, which Seller shall not unreasonably withhold. D.Termination of Agreement. If at any time within the Due Diligence Period Buyer determines, in its sole discretion, not to proceed with the purchase of the Property, Buyer may terminate this Agreement by written notice to Seller’s Representative and pay a termination fee in the amount of the costs, and expenses Seller reasonably incurred related to the project. If at any time within the Due Diligence Period Buyer determines, in its sole discretion, that it is unable or not permitted to proceed with the sale of the Property, Seller may terminate this Agreement by written notice to Buyer’s Representative. 5.SELLER’S DOCUMENTS Seller shall provide Buyer a copy of all known environmental inspection reports, engineering, title, and survey reports and documents in Seller’s possession relating to the Property. In the event the Closing does not occur, Buyer will immediately return all such reports and documents to Seller’s Representative. 6.PRESERVATION OF TITLE After the Contract Date and unless required for its normal or routine operations, renovations, maintenance, repairs, upgrades, etc., 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”). Any Encumbrances occurring after the Contract Date required for Seller’s normal or routine operations, renovations, maintenance, repairs, or upgrades shall be extinguished or released prior to the Closing Date. 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 8 below). 7.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”). The Title Commitment shall upon payment of the required premium (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 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. 8.REVIEW OF TITLE COMMITMENT AND SURVEY Within sixty (60) days after Buyer’s receipt of the Title Commitment, Buyer shall give Title Company and Seller written notice of any objections to any exceptions present in the Title Commitment. Within sixty (60) days after Buyer’s receipt of the Survey, Buyer shall give the surveyor and Seller written notice of any concerns with the boundaries or legal description shown in the Survey. Any exceptions identified in the Title Commitment or Survey concerns to which written notice to Title Company, surveyor, and Seller is not given within such period shall be a “Permitted Encumbrance.” If the Title Company is unable or unwilling to remove the exceptions in the Buyer’s Title Commitment and Surveyor is unable to remedy any boundary survey concerns within the Due Diligence Period, Buyer may terminate this Agreement by written notice to Seller prior to expiration of the Due Diligence Period. If Buyer fails to so terminate this Agreement, then any such objections, concerns, or issues 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 anything present in the title commitment and/or survey. 9. ENVIRONMENTAL MATTERS (A)For purposes of this Agreement, the term “Environmental Law(s)” shall mean any federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Substance, as now or at any time hereafter in effect. For purposes of this Agreement, the term “Hazardous Substance(s)” shall have the meaning ascribed in any Environmental Law to any hazardous, toxic, or dangerous waste, substance, pollutant or material, whether liquid, solid or gaseous. (B)Seller, to the best of Seller’s knowledge, represents and warrants that Seller has not violated any Environmental Laws in connection with the use, ownership, lease, maintenance or operation of the Property and the conduct of the operations related thereto. (C)To the best of Seller’s knowledge, neither Seller nor any other person within Seller's knowledge and/or control, including any lessees of the Property, has caused or permitted any Hazardous Substance to be placed, held, located or disposed of on, under or at the Property nor any part thereof and neither the Property nor any part thereof has ever been used by Seller or by any other person as a dump site or unauthorized storage site, whether permanent or temporary, for any Hazardous Substance. (D)Seller represents and warrants that, with respect to the Property, Seller is not a party to any litigation or administrative proceeding, nor, so far as is known by Seller after reasonable investigation, is any litigation or administrative proceeding threatened against the Property, which in either case asserts or alleges that: (i) Seller violated any Environmental Law; (ii) Seller is required to clean up or take other response action due to the release or threatened release or transportation of any Hazardous Substance; or (iii) Seller is required to pay all or a portion of the cost of any past, present or future cleanup, removal or remedial or other response action which arises out of or is related release or threatened release or transportation of any Hazardous Substance. 10.REPRESENTATIONS OF SELLER Seller represents, warrants and covenants to Buyer that Seller has or will have prior to its execution all necessary power and authority to enter into and perform this Agreement, and to carry out and perform its obligations under this Agreement. This Agreement is, and of the date of the closing will be, a valid, legal and binding obligation, enforceable against Seller in accordance with its terms. On the date of the closing, Seller will have all necessary power and authority to enter into, execute and deliver each of the closing documents required to be delivered by Seller and to carry out and perform Seller's obligations under this Agreement and under the terms of the closing documents. Seller represents that it it will comply with all statutory requirements and receive all required approvals to transfer the Property to Buyer on the Closing Date by the Closing Date. Seller further represents that it has undertaken or will undertake each of the steps set out in laws applicable to Seller and in the Recitals of this Agreement. WITH THE EXCEPTION OF REPRESENTATIONS AND WARRANTIES ALREADY PROVIDED HEREIN, SELLER MAKES NO WARRANTIES WITH REGARD TO THE PROPERTY. PROPERTY, REAL ESTATE, PLUMBING, ELECTRICAL, HEATING, COOLING, AND VENTILATING SYSTEMS, ROOFS, BUILDING, STRUCTURES, ROADS, PARKING LOTS, WALKWAYS, WALLS, LANDSCAPING, FENCES, FACILITIES, PERSONAL PROPERTY, GOODS, INVENTORY, PRODUCTS, IMPROVEMENTS, EQUIPMENT, APPLIANCES, FIXTURES, ETC. ARE SOLD AS IS AND WITH ALL FAULTS. UNLESS OTHERWISE SET FORTH ELSEWHERE IN THIS AGREEMENT, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. 11.WARRANTIES OF BUYER Buyer represents, warrants, and covenants to Seller that Buyer has all necessary approvals, funds, power, and authority to enter into and perform this Agreement, and to carry out and perform its obligations under this Agreement. This Agreement is, and of the date of the closing will be, a valid, legal and binding obligation, enforceable against Buyer in accordance with its terms. On the date of the closing, Buyer will have all necessary approvals, funds, power and authority to enter into, execute and deliver each of the closing documents required to be delivered by Buyer and to carry out and perform Buyer's obligations under this Agreement and under the terms of the closing documents. Buyer further represents that it has, or intends to, undertake the steps required of Buyer set out in laws applicable to Buyer and in the Recitals of this Agreement. 12.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 State courts located in St. Joseph County, Indiana, unless the Parties mutually agree in writing 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. 13.NOTICES All notices required or allowed by this Agreement, before or after Closing, shall be delivered in person or via email and then by certified mail, return receipt requested, postage prepaid, addressed to Buyer in care of Buyer’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 Seller in care of Seller’s Representative (with a copy to Superintendent) at their respective addresses stated in Section 2 above. Either Party may, by written notice, modify its address or representative for future notices. 14. CLOSING A.Timing of Closing. Unless this Agreement is earlier terminated, the Closing shall be held at an office of the Title Company located in South Bend, IN, and the Closing Date shall be a mutually agreeable date. The parties agree that the Closing Date is targeted for October 4, 2022; but upon the mutual agreement of Buyer and Seller or due to Title Company delays, may be extended to no later than November 1, 2022. B.Closing Procedure. (i)No later than three business days prior to the Closing Date, Seller shall provide wire transfer instructions to Title Company. (ii)No later than two business days prior to the Closing Date, Buyer shall be permitted to conduct a walk-through of the Property. (iii)At Closing, Buyer shall wire the Purchase Price to Seller, conditioned on Seller’s delivery of the Deed, in the form attached hereto as Exhibit B, and the Title Company’s delivery of the final copy of the Title Commitment (or pro forma policy) to Buyer in accordance with Section 7 above. (iv)Possession of the Property shall be delivered to the Buyer following the Closing no later than July 31, 2024 (the “Possession Date”), in the same condition as it existed on the Closing Date, ordinary wear and tear excepted. For the time period between the Closing Date and the Possession Date, the Parties shall enter into a Lease Agreement in the form attached hereto as Exhibit C. If full possession of the Property is not delivered by the next business day after the Possession Date, Seller shall pay Buyer a delay fee as set forth in the Lease. C.Personal Property. Seller shall remove all personal property from the Property after the Closing and before the Possession Date, except for such items as have been enumerated in the Personal Property Schedule attached as Exhibit D and such list to be finalized by the parties five (5) business days in advance of the Closing Date. D.Closing Costs. The Parties shall share equally all of the Title Company’s closing and/or document preparation fees and all county recorder costs associated with the transaction contemplated in this Agreement. E.Termination. If Seller is unable to secure alternative space to move its operations by November 1, 2022, Seller shall have the ability to terminate this Agreement by written notice to Buyer without liability or penalty to Seller. If Closing does not occur by November 1, 2022, Buyer shall have the ability to terminate this Agreement by written notice to Seller without liability or penalty to Seller. 1 5. TAXES Seller shall be responsible for all real property taxes related to the Property accruing through the Closing Date, if any, even if such taxes are not yet due and payable. Buyer, or Buyer’s successors and assigns, shall be liable for all real property taxes accruing against the Property after the Closing Date, if any. 16.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 and unless due to a force majeure event, 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. 17.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 reimburse each other for any claim for commissions charged by a broker in connection with the transaction contemplated in this Agreement. 18.INDEMNITY The Parties agree to reimburse each other for any and all liabilities, claims, penalties, forfeitures, suits, and the costs and expenses incident thereto (including costs of defense and settlement), which either party may subsequently incur, become responsible for, or pay out as a result of a breach by the other party in default of this Agreement. In the event of legal action initiated by a third party as a result of a breach of this Agreement, the breaching party shall assume the defense of the non- breaching party, including all costs associated therewith. 19.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. 20.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. 21.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. 22.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. 23.ENTIRE AGREEMENT This Agreement and the resolutions passed by each party authorizing the transaction 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. 24.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. 25.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. 26.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. 27.TIME Time is of the essence of this Agreement. 28.CASUALTY LOSS As used herein, the term “Casualty Loss” shall mean any destruction by fire, storm, inclement weather, or other casualty or any taking or pending or threatened taking, in condemnation, or under the right of eminent domain of the Property or portion thereof, in each case prior to Closing. All risk of loss to the Property not caused by Buyer prior to closing shall be borne by Seller. Seller shall promptly give Buyer written notice (“Casualty Notice”) of any Casualty Loss of which Seller becomes aware. If the Casualty Loss directly or indirectly affects a portion of the Property considered material, in Buyer’s sole opinion, Buyer shall have the option, which must be exercised within sixty (60) days after its receipt of the Casualty Notice, to terminate this Agreement or to proceed with the Closing. If Buyer elects to terminate this Agreement, all rights, duties, obligations, and liabilities created hereunder shall cease. If Buyer elects to proceed with Closing, or if the Casualty Loss does not affect a portion of the Property considered material in Buyer’s opinion, it shall acquire the Property in accordance with the terms hereof and Seller shall transfer to Buyer all unpaid insurance proceeds, claims, awards, and other payments arising out of such Casualty Loss and pay to Buyer all sums paid to Seller as insurance proceeds, awards, or other payments arising out of such Casualty Loss pertaining to the real estate only. Seller shall not voluntarily compromise, settle, or adjust any amounts payable by reason of any Casualty Loss pertaining to the real estate only without first obtaining the written consent of Buyer. [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, as authorized by Resolution No. 45-2022 of the City of South Bend, Indiana Board of Public Works; and Resolution No. 45-2022 of the South Bend Community School Corporation Board of Trustees. BUYER: City of South Bend, by and through, the South Bend Board of Public Works Daniel T. Parker, City Controller SELLER: South Bend Community School Corporation Kareemah Fowler Assistant Superintendent for Business and Finance EXHIBIT A Description of Property Parcel Key No. 018-3003-0057 Commonly known as 215 S. Dr. Martin Luther King, Jr. Blvd., South Bend, Indiana 46601 Legal Description: Lot Numbered Forty-nine (49) as shown on the Original Plat of the Town, now City, South Bend, Indiana; excepting therefrom the West 15 feet. EXHIBIT B Form of Warranty Deed AUDITOR’S RECORD TRANSFER NO. ________ TAXING UNIT _________ DATE _________________ KEY NO. 018-3003-0057 WARRANTY DEED THIS INDENTURE WITNESSETH, that South Bend Community School Corporation, an Indiana public school corporation, with a mailing address of [Insert Address] (the “Grantor”) CONVEYS AND WARRANTS to the Civil City of South Bend, Indiana by and through the South Bend, Indiana Board of Public Works, 1300 S. County-City Building, 227 W. Jefferson Boulevard, South Bend, Indiana (the “Grantee”), for and in consideration of Ten Dollars ($10.00) 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 Forty-nine (49) as shown on the Original Plat of the Town now City, South Bend, Indiana; excepting therefrom the West 15 feet Commonly known as 215 S. Dr. Martin Luther King Jr., Blvd., South Bend, Indiana 46601 Parcel Key No. 018-3003-0057 The Grantor hereby conveys the Property to the Grantee free and clear of all liens, leases or licenses; subject to real property taxes and assessments; subject to all right of ways, easements, covenants, conditions, restrictions, and other matters of record; subject to rights of way for roads; and subject to all applicable building codes and zoning ordinances. 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 to Follow) Page 1 of 2 GRANTOR: SOUTH BEND COMMUNITY SCHOOL CORPORATION [Insert Signature Block] STATE OF ________________ ) ) SS: _________________ COUNTY ) Before me, the undersigned, a Notary Public, in and for said County and State, personally appeared ____________________ , known to me to be the _______________________ of South Bend Community School Corporation and acknowledged the execution of the foregoing Warranty Deed, being authorized so to do. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the _____ day of ______________, 2022. My Commission Expires: Notary Public Residing in _____________ County, 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. Jenna K. Throw. This instrument was prepared by Jenna Throw, Assistant City Attorney, City of South Bend, 227 W. Jefferson Blvd., Suite 1200 S., South Bend, IN 46601. Page 2 of 2 EXHIBIT C FORM OF LEASE AGREEMENT EXHIBIT D PERSONAL PROPERTY SCHEDULE 1 ADMINISTRATIVE OFFICE LEASE This Administrative Office Lease (“Lease”) is made effective as of [insert building closing date] (the “Effective Date”), by and between the City of South Bend, Indiana, a municipal corporation, acting by and through the South Bend, Indiana Board of Public Works (the “Landlord”), and the South Bend Community School Corporation, an Indiana public school corporation (the “Tenant”) (each a “Party,” and together, the “Parties”). RECITALS A.As of the Effective Date of this Lease, Landlord owns certain real property located in South Bend, Indiana, commonly known as parcel number 71-08-12-158-012.000-026 and more particularly described in the deed attached Exhibit 1 (the “Property”), having acquired the Property from Tenant on the Effective Date pursuant to that certain Real Estate Purchase Agreement made between the Parties, dated September 27, 2022 (the “Purchase Agreement”). B.The Parties have agreed Tenant will be able to continue occupying and using its existing office space in the Property on the Effective Date, as it requires additional time to renovate an existing school building for use as new office space following the Effective Date. C.Until said renovations at Tenant’s new office space are complete, Landlord and Tenant desire to enter into a lease, under which Landlord will lease to Tenant the Property, as agreed to herein. NOW, THEREFORE, in consideration of the mutual promises and obligations set forth in this Lease, the adequacy of which is hereby acknowledged, the Parties agree as follows: 1.Leased Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Property. Landlord reserves the right to perform maintenance and improvements to the Property to modify, increase, or decrease the location, dimension, size, and height of improvements in the Property at its sole discretion after consultation with Tenant.. 2.Lease Term. The term of this Lease shall begin on the Effective Date and end no later than July 31, 2024, subject to the Termination and Surrender and Holdover provisions below. Tenant shall provide Landlord with monthly informal written updates, including but not limited to an estimated departure date, on its construction timeline on or about the last day of each month following the Effective Date. 3.Rent. In consideration hereof, the Tenant covenants and agrees to pay all existing utility accounts in Tenant’s name before the Effective Date and other routine costs of building maintenance and daily operations incurred by Landlord during the Lease Term, as described in Section 9 of this Lease. Tenant shall keep all utilities currently in Tenant’s name throughout the term of this Lease, except as otherwise set forth herein. The Parties acknowledge that immediately prior to the Effective Date, Tenant owned and occupied the Property and had sufficient utilities for its needs as of the Effective Date. If new utilities must be added or accessed during the term of the Lease, Landlord may agree to allow the installation of such utility service, provided that the 2 Parties negotiate in good faith a cost sharing agreement acceptable to Landlord in its sole discretion. 4.Quiet Enjoyment. Landlord warrants that it is the owner in fee simple of the Property, and that it has full right and authority to enter into this Lease, subject to all easements, restrictions, liens, encumbrances, rights-of-way and other matters of record. Landlord agrees that if Tenant observes all of the terms and conditions of, and performs all of its obligations under, this Lease, then, at all times during the Term, subject to the terms and conditions of this Lease, Tenant shall have the peaceful and quiet enjoyment of possession of the Property, without any manner of hindrance from Parties claiming under, by, or through Landlord, except as otherwise set forth in Section 1 of this Lease and as communicated to Tenant. 5.Use. The Property shall be used and occupied for charitable, educational, administrative, office, clerical and all other work performed by employees of Tenant in the ordinary course of their duties on behalf of, associated with, and/or affiliated with Tenant and consistent with Tenant’s past use of the Property. The Property may not be used for any other purpose inconsistent with Tenant’s use before the Effective Date without the prior written approval of the Landlord. 6. Landlord Maintenance and Repairs. Landlord agrees to maintain the Property in a condition of safety and habitability appropriate to the use of the Property as administrative office space and consistent with its condition as of the Effective Date. Landlord shall, at its expense: (a) keep the building and its foundations, structure, floors, ceilings, utility infrastructure, and roof of the Property in good order, repair and condition; and (b) maintain the exterior walls of the Property in a structurally sound condition, except to the extent that there is damage caused by any act or omission of Tenant or its employees, agents, contractors, invitees or licensees, and (c) replace window glass that may be damaged or broken, except to the extent that any damage or breakage is caused by any act or omission of Tenant or its employees, agents, contractors, invitees or licensees. Landlord shall be responsible for the alteration, renovation, repairs, replacement and maintenance of all gas, water, electricity, heating, ventilating, and cooling equipment and systems serving the Property (the “Utility Systems”); provided, however, that Landlord may bill Tenant for any repairs or replacement if Landlord’s consultant determines with reasonable certainty that the need to repair or replace the Utility Systems was solely and as a direct result of Tenant’s misuse thereof or Tenant’s failure to notify the Landlord of any malfunctioning. Except as provided in Section 6, Tenant shall not make construction, reconstruction, alterations, renovations, maintenance, repairs, replacements, or improvements of any kind to or for the Property, or any fixtures or equipment contained therein. 7.Tenant Maintenance and Repairs. Except for construction, reconstruction, alterations, renovations, maintenance, or repairs to be performed by Landlord, Landlord’s obligations pursuant to Section 6, or in areas used by Landlord, Tenant in the areas used by Tenant shall: (a) keep the Property clean, neat, sanitary and safe, and in good order, repair and condition, including, without limitation, that Tenant shall make all minor, routine maintenance, routine repairs, or routine replacements to the Property and shall provide routine janitorial services at Tenant’s expense; (b) keep all glass in windows, doors, fixtures, and other locations clean and in 3 good order, repair, and condition, and replace interior light bulbs or fluorescent lights as needed. The Tenant shall be responsible for notifying the Landlord of any visible, known damage to, malfunctioning of, or apparent repairs necessary to be made to the Utility Systems s used by Tenant in the Property. Said improvements shall be agreed to without amending this Lease and performed by Landlord with Tenant reimbursing Landlord after completion and approval of the improvements. Tenant’s improvements under this clause and Tenant’s responsibility shall not exceed Ten Thousand Dollars ($10,000.00). Tenant shall not make any alterations, additions, repairs, or improvements to the Leased Premises unless agreed to by Landlord. 8.Hazardous Substances. The Tenant shall not knowingly cause or permit the use, generation, release, manufacture, refining, production, processing, storage, or disposal of any hazardous substances, as that term is defined under any present or future federal, state, or municipal law, ordinance, rule or regulation applicable to the environmental condition of the Property (“Hazardous Substances”). Should the Landlord knowingly require the use or storage of any Hazardous Substances for any purpose allowed herein, Landlord shall provide notice to Tenant of Landlord’s use or storage of such Hazardous Substance and the purpose thereof. 9.Utility Services. The Parties acknowledge that Landlord acquired the Property directly from Tenant immediately prior to entering into this Lease. Tenant acknowledges that the Property previously contained the necessary mains, meters, connections, and conduits for gas, water, and sewer facilities and electric service to the Property, as well as equipment, products, goods, services, materials, and supplies needed for proper operation of the heating ventilating and cooling system (“HVAC System”) located in the Property. Tenant shall: (a) maintain accounts for all sewer, water, gas, electricity, telephone, and other utility services (“Utilities”) used by Tenant at the Property solely in its name; (b) promptly pay all charges for Utilities in Tenant’s name; and (c) deliver to Landlord, upon demand, receipts or other satisfactory evidence of payment of the charges for Utilities. Landlord shall provide the equipment, products, goods, services, materials, and supplies needed for proper operation of the HVAC System as of the Effective Date and through the term of the Lease. 10.Loss of Use. In the event the Leased Premises are made untenable or are partially destroyed by weather, Act of God, act of nature, water, gas, fire, explosion, or other casualty, provided such total or partial destruction is not caused by Tenant, (a) the Lease Premises shall be repaired as speedily as possible, at Landlord’s sole discretion and expense; and (b) either party may elect to terminate this Lease by notifying the other party in writing within thirty (30) days of the casualty. 11. Tenant Abandonment. Tenant understands and agrees if it abandons the Leased Premises during the term of this tenancy, Tenant shall not be relieved of its duties and obligations under this Lease before the date of abandonment. Exercise of Tenant’s rights under the Compliance or Termination provisions shall not constitute abandonment. 12.Force Majeure. With the exception of the payment of Rent, in the event that either party is unable to perform any of its obligations under this Lease, or to enjoy any of its benefits, because of pandemic; epidemic; water, gas, fire, explosion, or other casualty; natural disaster; or 4 decrees of governmental bodies not the fault of the affected party (“Force Majeure Event”), the party who has been so affected shall immediately or as soon as is reasonably possible under the circumstances give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Lease shall be immediately suspended. If the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been so affected may, by giving written notice, terminate this Lease. 13.Tenant’s Liability Insurance. Tenant, at its expense, shall maintain during the Lease Term and any holdover period, commercial general liability insurance on the Property covering Tenant as the named insured and identifying Landlord as an “additional insured” with terms satisfactory to Landlord and with companies qualified to do business in the State, for limits of not less than $1,000,000.00 for bodily injury, including death resulting therefrom, and personal injury for any one (1) occurrence, $1,000,000.00 property damage insurance, or a combined single limit in the amount of $5,000,000.00. At all times, Tenant shall maintain limits naming Landlord as an “additional insured” in an amount sufficient to cover any possible liability Landlord may have pursuant the amounts set forth at Indiana Code § 34-13-3-4, as the same may be amended, superseded or recodified from time to time. Landlord will continue to maintain during the Lease Term and any holdover period the types and amounts of coverage it had as of the Effective Date. 14. Coverage Verification. All policies of insurance required by this Lease to be maintained by Tenant shall be in a form, and maintained with an insurer, reasonably satisfactory to Landlord, and Tenant shall provide written notice to Landlord at least thirty (30) days in advance of the cancellation, termination, or change of or to any such policy. Additionally, Tenant shall cause Landlord to receive certificates of such insurance, duly executed by the insurance company or the general agency writing such policies, and effective not later than the Effective Date. Tenant shall cause Landlord to receive appropriate renewal or replacement certificates not less than ten (10) days prior to the expiration of any such policy or policies. Tenant shall also furnish Landlord with certificates evidencing such coverages from time to time upon Landlord’s request. If Tenant shall fail to timely procure or renew any of the insurance required under this Lease, Landlord may obtain replacement coverage and the cost of same shall be payable by Tenant immediately. 15.Assignment and Sublease. Tenant shall not assign this Lease or sublet the Property. Notwithstanding anything to the contrary contained herein, Tenant shall be liable without limitation for the acts and omissions of any third party allowed by Tenant to use the Property. 16.Indemnification. To the extent allowed by law and subject to the limits of Indiana’s Tort Immunity Statute, Tenant shall indemnify, defend, and hold harmless Landlord from any and all loss, costs (including reasonable attorney’s fees), and liability on account of any damages, injuries, claims, and demands to the extent caused by negligent errors, omissions, or misconduct of Tenant, its agents, invitees, or employees but only to the extent that same are caused by the negligence, misconduct, or other fault of Tenant, its agents, invitees, or employees. To the extent allowed by law and subject to the limits of Indiana’s Tort Immunity Statute, Landlord shall indemnify, defend, and hold harmless Tenant from all loss, costs (including reasonable attorney’s 5 fees), and liability on account of any damages, injuries, claims, and demands to the extent caused by the negligent errors, omissions, or misconduct of Landlord, its agents, invitees, or employees. 17.Termination. In the event that either party breaches any covenant or obligation in this lease, the non-breaching party shall give the breaching party written notice of any intent to terminate this lease for such breach and of the cause therefore. If the breaching party does not correct the breach specified within thirty (30) days (or, in the event the breach is of a nature that cannot be reasonably remedied within thirty (30) days, fails to commence to remedy such breach within thirty (30) days and continue with reasonable diligence to correct same) this Lease may then be terminated by thirty (30) days written notice by the non-breaching party to the breaching party for such uncured cause. Upon cancellation or termination of this Lease, Tenant shall be released from any further obligation under the terms of this Lease arising after the date of such termination. If the Lease is cancelled or terminated due to an uncured breach by Tenant, Tenant must vacate the Property within ten (10) business days. Tenant may terminate the lease for any reason upon five (5) business days written notice to Landlord. 18. Surrender and Holdover. Upon the termination of this Lease by lapse of time or otherwise, Tenant agrees that it will surrender and deliver to Landlord possession of the Property in substantially the same condition as on the Effective Date, ordinary wear and tear excepted. Tenant shall remove all of Tenant’s personal property prior to such surrender and delivery. Any personal property not removed by Tenant within ten (10) business days of Landlord’s written demand will be deemed abandoned and Landlord may after a 2nd written notice allowing one (1) business day, dispose of such personal property as allowed under Ind. Code § 5-22-22. In the event that Tenant does not vacate the Property upon the termination of this Lease, Tenant shall pay Landlord a delay fee in the amount of Three Hundred Dollars ($300.00) per day through December 31, 2024. If Tenant has not vacated the Property as of January 1, 2025, Tenant shall pay Landlord a delay fee in the amount of Five Hundred Dollars ($500.00) per day. . This Section shall survive the termination of this Lease. 19. Notices. Any notices or communications required or requested to be given under the terms of this lease shall be deemed properly given if mailed by United States mail, registered and with postage prepaid, if to: To Landlord at: City Controller Department of Administration and Finance City of South Bend 227 W. Jefferson Blvd., 1200N South Bend, Indiana 46601 With a copy to: Corporation Counsel Department of Law 6 City of South Bend 227 W. Jefferson Blvd., 1200S South Bend, Indiana 46601 To Tenant at: Kareemah Fowler Assistant Superintendent of Business and Finance South Bend Community School Corporation 215 South Dr. Martin Luther King Jr. Blvd. South Bend, Indiana 46601 and address shown in the IN Department of Education records. Addresses for notices may be changed by delivery notice of such change in the manner provided above. 20.Brokers. Landlord and Tenant each represent and warrant that they have not obligated the other to compensate any real estate agent, broker or finder or their intermediary in connection with the negotiation, preparation or execution of this Lease. 21.Severability. If any provisions of this Lease shall be invalid or unenforceable, the remainder hereof shall nevertheless continue in full force and effect. 22.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, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of 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. 23.Counterparts; Signatures. This Agreement may be separately executed in counterparts by the parties, and the same, when taken together, will be regarded as one original Agreement. Electronically transmitted signatures will be regarded as original signatures. 24. Authority. Each undersigned person signing on behalf of his or her respective party certifies that he or she is duly authorized to bind his or her respective party to the terms of this Agreement. 25.Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Indiana. Any dispute arising hereunder shall be heard in the state courts located in St. Joseph County. 26.Entire Agreement. The Lease contains the entire agreement and understanding between the parties hereto and may not be amended or changed except by agreement in writing executed by the parties. 7 27.Successors and Assigns. This Lease shall be binding upon and shall inure to the benefit of the parties hereto, their respective successors and assigns. 28. Compliance. The Parties shall comply with all federal, state and local laws and ordinances, lawful orders, and regulations affecting the Property, and the health, cleanliness, safety, construction, occupancy and use of same, in effect from time to time. Further, the Parties covenant and agree to make a good faith effort to provide and maintain a drug-free workplace at the Property. Tenant and Landlord shall give written notice to the other within one (1) business day after receiving actual notice that any employee of Tenant or Landlord has been convicted of a criminal drug violation occurring at the Property. Additionally, the Tenant shall comply with all applicable laws and regulations in their hiring and employment practices and policies for any activity occurring at the Property and covered by this Lease. The Tenant shall also comply with all federal, state, and municipal laws, regulations, and standards applicable to their activities pursuant to this Lease including, but not limited to, the requirements imposed by Ind. Code 22-9- 1-10 (non-discrimination), the provisions of Ind. Code 5-22-16.5 (disqualification for dealings with the government of Iran), and the provisions of Ind. Code 22-5-1.7 (requiring E-Verify for new employees and prohibiting employment of unauthorized aliens). Each of the foregoing provisions is incorporated herein as if set forth in full, and the Tenant certifies that it is in compliance with each such provision and shall remain in compliance through the term of this Lease. The Tenant certifies by entering into this Lease neither it nor its respective executives nor any of their respective subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from entering into this Lease by any federal agency or by any department, agency or political subdivision within the United States. 29.Memorandum of Lease. Upon written request by Tenant, a Memorandum of Lease in recordable form shall be executed by both parties and recorded in conformance with the laws of the State of Indiana at Tenant’s sole cost and expense. Signature Page Follows 8 IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the day and year written below. “LANDLORD” September 27, 2022 9 “TENANT” SOUTH BEND COMMUNITY SCHOOL CORPORATION ______________________________ Signature ______________________________ Printed Name and Title Date: ____________________ 10 EXHIBIT 1 Legal Description of Property Lot Numbered Forty-nine (49) as shown on the Original Plat of the Town, now City, South Bend, Indiana; excepting therefrom the West 15 feet. BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 9/20/2022 Name Jenna Throw Department Legal BPW Date September 27, 2022 Phone Extension Ext. 9354 Review and Approval Required Prior to Submittal to Board Diversity Compliance and Inclusion Officer Officer Name BPW Attorney Attorney Name Dept. Attorney Attorney Name Purchasing Check the Appropriate Item Type – Required for All Submissions Professional Services Agreement x Contract Proposal Open Market Contract Amendment/Addendum Special Purchase, QPA Bid Opening Bid Award Req. to Advertise Title Sheet Quote Opening Quote Award Reject Bids/Quotes Proposal Opening C/O & PCA No. PCA Chg. Order, No. Traffic Control x Resolution Other: Ease./Encroach Required Information Company or Vendor Name South Bend Community School Corporation New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name NA Project Number NA Funding Source Account No. Amount $2,800,000.00 Terms of Contract As attached Purpose/Description Resolution authorizing purchase of South Bend Community School Corporation Administration building _______________________________________________________________ _____________________________________________________________ For Change Orders Only Amount of Increase Decrease $ ($ ) Previous Amount $ Current Percent of Change: Increase Decrease % ( %) New Amount $ Total Percent of Change: Increase Decrease % ( %) Time Extension Amount: New Completion Date: