Loading...
HomeMy WebLinkAbout5A1 Property Acquisition (Old Cleveland Road)South Bend Redevelopment Commission 227 West Jefferson Boulevard, Room 1308, South Bend, Indiana Redevelopment Commission Agenda Item DATE : October 7, 2024 FROM: Caleb Bauer, Exec. Dir, Community Investment SUBJECT: Old Cleveland Road Purchase Agreement Funding Source* (circle) River West; River East; South Side; Douglas Road; West Washington; RDC General; Riv. East Res. * Funds are subject to the City Controller's determination of availability; if funds are unavailable, as solely determined by the City Controller, then the authorization of the expenditure of such funds shall be void and of no effect. PURPOSE OF REQUEST: Staff requests consideration of a purchase agreement for a 15-acre property located at 4022 Old Cleveland Road SPECIFICS: The purchase agreement for the 15-acre property located at 4022 Old Cleveland Road would establish an $825,000 purchase price for the property, which is zone I – Industrial. The price is justified by two commercial appraisals. If approved, closing would occur within 90 days of approval following a due diligence period. The intended use of the property is as a location for the Low-Barrier Intake Center that was originally proposed at a property located on N. Bendix Drive. This new proposed location is larger in acreage and better-located for the prospective use. If approved, staff would begin the disposition process on the Commission-owned property on Bendix Drive at the next commission meeting. _________________________Pres/V-Pres ATTEST: __________________Secretary Date: ___________________ APPROVED Not Approved SOUTH BEND REDEVELOPMENT COMMISSION 10-10-2024  1 REAL ESTATE PURCHASE AGREEMENT This Real Estate Purchase Agreement (“Agreement”) is made by and between Rebecca S. Schaut, Dennis E. Mendenhall, Ranae J. Suth, and Robert A. Miller, with an address of 4022 Old Cleveland Road South Bend IN 46628 (collectively, the “Sellers”) and the City of South Bend, Indiana, Department of Redevelopment, by and through its governing body, the South Bend Redevelopment Commission, with an address of 227 W. Jefferson Boulevard, Suite 1400 S, South Bend, Indiana 46601 (“Buyer”) (each a “Party” and together the “Parties”). RECITALS A. Buyer exists and operates pursuant to the Redevelopment of Cities and Towns Act of 1953, as amended, cited as Indiana Code 36-7-14 (the “Act”). B. In furtherance of its purposes under the Act, Buyer desires to purchase from Sellers certain real property located at 4022 Old Cleveland Road in South Bend, Indiana (the “City”), and more particularly described in attached Exhibit A (the “Property”). C. The Property is situated in the River West Development Area and is set forth on the acquisition list related thereto, pursuant to Buyer’s Resolution No. #919 D. Sellers desire to sell the Property to the Buyer in accordance with Section 36-7-14- 19 of the Act and 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 Sellers, constitutes Sellers’ 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 the Sellers, in care of the following representative (“Sellers’ Representative”): ______________ ______________ ______________ Sellers shall return a signed copy of this Agreement to the following representative (“Buyer’s Representative”): South Bend Redevelopment Commission 1400S County-City Building 227 W. Jefferson Blvd. Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 3566 Douglas Rd., South Bend, IN, 46635 Irish Realty - Steve Smith 2 South Bend, IN 46601 Attn: Executive Director, Department of Community Investment 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 by Buyer and Sellers (the “Contract Date”). 2. PURCHASE PRICE The purchase price for the Property shall be Eight Hundred Twenty-Five Thousand Dollars ($825,000.00) (the “Purchase Price”), payable by Buyer to Sellers as described in Section 8 (the “Closing,” the date of which is the “Closing Date”). 3. BUYER’S DUE DILIGENCE A. Investigation. Sellers acknowledge that Buyer’s determination to purchase the Property requires a process of investigation (Buyer’s “Due Diligence”) into various matters. 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, environmental matters, real property title matters, and the like, as applicable. B. Authorizations During Due Diligence Period. Sellers authorize Buyer, as of the Contract Date and continuing until the end of the Due Diligence Period (as defined below), to enter upon the Property or to cause agents to enter upon the Property for purposes of examination; provided, however, that Buyer may not take any action upon the Property which reduces the value thereof; and further provided that Buyer shall promptly restore the Property to its condition prior to entry, and agrees to defend, indemnify, and hold Sellers harmless, before and after the Closing Date, whether or not a closing occurs, and regardless of any cancellations or termination of this Agreement, from any liability to any third party, loss or expense incurred by Sellers, including without limitation, reasonable attorney fees and costs arising from acts or omissions of Buyer or Buyer’s agents or representatives. C. Due Diligence Period. Buyer shall have a period of ninety (90) days following the Contract Date to complete its examination of the Property in accordance with this Section 3 (the “Due Diligence Period”). 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 Sellers and with no liability to Buyer, except as set forth herein. 4. PRESERVATION OF TITLE AND CONDITION Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 3 A. After the date Sellers receive a copy of this Agreement as described in Section 1, Sellers shall not take any action or allow any action to be taken by others to cause the Property to become subject to any new interests, liens, restrictions, easements, covenants, reservations or other matters affecting Sellers’ title (such matters are referred to as “Encumbrances”). B. Sellers hereby covenant that Sellers will not alter the condition of the Property at any time after the date Sellers receive a copy of this Agreement as described in Section 1. Further, Sellers will not release or cause to be released any hazardous substances on or near the Property and will not otherwise collect or store hazardous substances or other materials, goods, refuse or debris at the Property. 5. TITLE COMMITMENT AND SURVEY 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 Sellers (the “Title Company”) within twenty (20) days after the Contract Date. Buyer, at its option, may obtain a survey of the Property, at its sole expense. The Property shall be conveyed to Buyer free of all encumbrances, including but not limited to mortgages, judgments, and taxes, unless otherwise waived in writing by Buyer. The Title Commitment will be issued by a title company selected by Buyer and reasonably acceptable to Sellers (the “Title Company”). The Title Commitment shall: (1) Agree to insure good, marketable and indefeasible fee simple title to the Property in the name of the Buyer for the full amount of the Purchase Price upon delivery and recordation of a special warranty deed from the Sellers to the Buyer. (2) Provide for issuance of a final ALTA owner’s title insurance policy, with any endorsements requested by Buyer, subject only to any encumbrances waived by Buyer. Regardless of whether this transaction closes, Buyer shall be responsible for the title search charges, the cost of the Title Commitment and owner’s policy. Within thirty (30) days after Buyer’s receipt of the Title Commitment, Buyer shall give Sellers wri tten notice of any objections to the Title Commitment. Within thirty (30) days after Buyer’s receipt of the Survey, Buyer shall give Sellers 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 Sellers are 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 Sellers prior to expiration of the Due Diligence Period. 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. 6. ENVIRONMENTAL MATTERS Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 4 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. Sellers, to the best of their knowledge, are not aware that Sellers have violated any Environmental Laws in connection with the use, ownership, lease, maintenance or operation of the Property and the conduct of Sellers’ operations related thereto. C. To the best of Sellers’ knowledge, neither Sellers nor any other person within Sellers’ 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 Sellers or by any other person under contract with Sellers as a dump site or unauthorized storage site, whether permanent or temporary, for any Hazardous Substance. D. Sellers, to the best of their knowledge and with respect to the Property, Sellers are not a party to any litigation or administrative proceeding, nor, so far as is known by Sellers after reasonable investigation, is any litigation or administrative proceeding threatened against the Property, which in either case asserts or alleges that: (i) Sellers violated any Environmental Law; (ii) Sellers are required to clean up or take other response action due to the release or threatened release or transportation of any Hazardous Substance; or (iii) Sellers are 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 to the release or threatened release or transportation of any Hazardous Substance. 7. SELLERS’ REPRESENTATIONS AND WARRANTIES The undersigned Sellers represent and warrant to Buyer that Sellers own fee simple title to the Property, have not granted any option or right of first refusal to any person or entity to acquire the Property or any interest therein, and are fully empowered to sell the Property to Buyer under the terms and conditions stated in this Agreement. Additionally, Sellers represent and warrant that they have disclosed to Buyer any notifications from any local, state, or federal authority regarding environmental matters pertaining to the Property. Seller shall provide Buyer a copy of all known environmental inspection reports, engineering, title, and survey reports and documents in Sellers’ possession relating to the Property. In the event the Closing does not occur, Buyer will immediately return all such reports and documents to Sellers’ Representative. 8. CLOSING A. Timing of Closing. Unless this Agreement is earlier terminated, the transfer of title contemplated by this Agreement (the “Closing”) shall be held at the office of the Title Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 5 Company on a mutually agreeable date not later than thirty (30) days after the end of the Due Diligence Period. B. Closing Procedure. At Closing, Buyer shall deliver the Purchase Price to Sellers, conditioned on Sellers’ delivery of a warranty deed, substantially in the form attached hereto as Exhibit B, conveying the Property to the Buyer, free and clear of all liens, encumbrances, judgments, title defects and exceptions, except those expressly waived by Buyer, and the Title Company’s delivery of the Title Commitment to Buyer in accordance with Section 5 above. C. Closing Costs. Buyer shall pay the Title Company’s closing fees and all recordation costs associated with the transaction contemplated in this Agreement. D. Conditions Precedent to Closing; Personal Property. Seller discloses that any former fuel tanks, abandoned vehicles, machinery or other items no longer contain fuel or other environmental contaminants at an actionable level. If Buyer’s Due Diligence reveals environmental contaminants where remediation is recommended, Seller is willing to negotiate on proposed solutions. If Seller is unable or unwilling to come to terms with Buyer related to any recommended environmental contaminant mitigation, then Buyer shall have no obligation to complete the transaction contemplated in this Agreement, and Buyer may terminate this Agreement by written notice to the Sellers prior to expiration of the Due Diligence Period. If Buyer chooses to proceed to Closing, all personal property remaining at the Property after Closing will be deemed to be abandoned by the Sellers, and Buyer, in its sole discretion, may choose to exercise possession of and control over any such personal property. E Sellers’ Due Diligence. Sellers acknowledge that Sellers have conducted its own due diligence and acknowledges that the Purchase Price is fair and reasonable and waive any right that Sellers may have to an appraisal or to contest or challenge the validity of compensation received under this Agreement. 9. ACCEPTANCE OF PROPERTY “AS-IS” Except as otherwise set forth herein, Buyer agrees to purchase the Property “as -is, where- is” and without any representations or warranties by Sellers as to the condition of the property or its fitness for any particular use or purpose. Sellers offer no such representation or warranty as to condition or fitness, and nothing in this Agreement shall be construed to constitute such a representation or warranty as to condition or fitness. 10. TAXES Sellers shall be responsible for all 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. 11. COMMISSIONS Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 6 The Parties acknowledge that Sellers are represented by Irish Realty in connection with the transaction contemplated in this Agreement. Buyer is not represented by any broker. Buyer and Seller agree to indemnify and hold one another harmless from any claim for commissions, other than that owned to Irish Realty, which will be paid by Sellers, in connection with the transaction contemplated in this Agreement. 12. INTERPRETATION; APPLICABLE LAW; JURISDICTION 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 be presumptively resolved, against either Party. This Agreement shall be interpreted and enforced according to the laws of the State of Indiana. 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. 13. 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 Sellers in care of Sellers’ Representative, or 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) at the respective addresses stated in Section 1 above. Either Party may, by written notice, modify the address for future notices to such Party. 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. 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 complex and they desire to streamline and minimize the cost of resolving such disputes. In any legal Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 7 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. 16. 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. 17. 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. 18. 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. 19. 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. Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 8 20. TIME Time is of the essence of this Agreement. 21. ENTIRE AGREEMENT This Agreement embodies the entire agreement between Sellers and Buyer and supersedes all prior discussions, understandings, or agreements between Sellers and Buyer concerning the transaction contemplated in this Agreement, whether written or oral. 22. 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 Sellers. This Agreement may be separately executed in counterparts by Buyer and Sellers, and the same, when taken together, will be regarded as one original Agreement. Facsimile signatures will be regarded as original signatures. 23. AUTHORITY TO EXECUTE; EXISTENCE The undersigned persons executing and delivering this Agreement on behalf of the Parties each represent and certify that they are the duly authorized representatives of the respective Parties and have been fully empowered to execute and deliver this Agreem ent and that all necessary action has been taken and done. [Signature Page Follows] Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 9 IN WITNESS WHEREOF, the Parties hereby execute this Agreement to be effective as of the 10th. day of October, 2024. BUYER: South Bend Redevelopment Commission By: __________________________ Troy Warner, President ATTEST: By: __________________________ Vivian G. Sallie, Secretary SELLERS: _______________________________ Rebecca S. Shaut Date: __________________________ ________________________________ Dennis E. Mendenhall Date: __________________________ ________________________________ Ranae J. Suth Date: __________________________ ________________________________ Robert A. Miller Date: __________________________ Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 9/13/2024 9/13/2024 ----- 9/13/2024 Schaut 9/13/2024 9/13/2024 EXHIBIT A Description of Property Commonly Known: 4022 Old Cleveland Parcel ID: 025-1010-0380 State ID: 71-03-28-100-004.000-009 Legal Description: 14.93 Ac S Side Cleveland Rd Beg 165' W Of Ne Cor Nw Sec 28-38-2e Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD EXHIBIT B Form of Warranty Deed Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 1 AUDITOR’S RECORD TRANSFER NO.__________ TAXING UNIT___________ DATE __________________ KEY NO. 024-1010-0380 WARRANTY DEED THIS INDENTURE WITNESSETH, that Rebecca S. Schaut, Dennis E. Mendenhall, Ranae J. Suth, and Robert A. Miller (the “Grantors”) CONVEYS AND WARRANTS to the South Bend Redevelopment Commission, governing body of the City of South Bend Department of Redevelopment, 1400S County -City Building, 227 W. Jefferson Boulevard, 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 in St. Joseph County, Indiana (the “Property”): Commonly Known: 4022 Old Cleveland Parcel ID: 025-1010-0380 State ID: 71-03-28-100-004.000-009 Legal Description: 14.93 Ac S Side Cleveland Rd Beg 165' W Of Ne Cor Nw Sec 28- 38-2e The Grantors 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 Grantors represents and certifies that they have been fully empowered to execute and deliver this deed, that the Grantors have full 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 Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD 2 GRANTORS: _________________________________ Rebecca S. Schaut _________________________________ Dennis E. Mendenhall _________________________________ Ranae J. Suth _________________________________ Robert A. Miller Date: STATE OF INDIANA ) ) SS: ST. JOSEPH COUNTY ) Before me, the undersigned, a Notary Public, in and for said County and State, personally appeared Rebecca S. Schaut, Dennis E. Mendenhall, Ranae J. Suth, and Robert A. Miller, and acknowledged the execution of the foregoing Warranty Deed as their true act and deed. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the _____ day of ______________, 2024. My Commission Expires: ____________________________________ Notary Public _______________________ Residing in St. Joseph County, Indiana I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this do cument, unless required by law. /s/ Danielle Campbell Weiss This instrument was prepared by Danielle Campbell Weiss, Senior Assistant City Attorney, 1200 S. County -City Building, 227 W. Jefferson Blvd., South Bend, Indiana 46601. Docusign Envelope ID: D62ECB79-50C8-4137-8DF6-C82F0F5007CD