Loading...
HomeMy WebLinkAbout6.C.(4) Resolution No. 2503RESOLUTION NO. 2503 RESOLUTION APPROVING AND ACCEPTING A COUNTEROFFER FOR THE ACQUISITION OF PROPERTY IN THE AIRPORT ECONOMIC llEVEI~OPMENT AREA WHERIJAS, under the authority granted by Ind. Code~~' 36-7-14, el seq. and in fw-thcrance of the Airport Tconomic Development Arca Development Plan (the "Plan"), the South Bend Redevelopment Commission (the "Commission") has determined that it is necessary to acquire unencumbered fee simple interest in certain property located within the area heretofore designated as the Airport Economic Development Area (the "Arca") within the City of South Bend, Indiana (the "City"), which property is more particularly described at IJxhibit n attached hereto and incorporated herein (the "Property"); and WIfEREAS, on September 5, 2008, the Commission adopted a Resolution setting the offering price (the "Offering Price") and authorizing staff to present an offer to Deister LLC as owners of the Property (the "Owner") in an amount not to exceed the Offering Price along with the payment of expenses incidental to the conveyance and determination of the title of the Property; and WHERL;AS, the staff has presented the Owner an offer for the Offering Price as authorized, which the Owner rejected; and WHI/REAS, the Owner has provided a counteroffer to the Commission Cor $25,000, which includes all expenses related to the acquisition; and ~UHI~REAS, the Commission desires to purchase the Property for $25,000, approve the form of Contract for Purchase and Sale; and authorize the President and Secretary of the Commission to execute and attest, respectively, the Contract for Purchase and Sale on behalf of the Commission, with such changes in form or in substance as the President and Secretary may approve; and WH]?REAS, the staff has reviewed the counteroffer and determined that the proposal is reasonable in light of the appraisal amount, and conditions in the area, and WIIEREnS, the Commission has completed its acquisition procedures for the Property and sufficient funds are available for the purchase of the Property; NOW, ~I~IIERI_?FORL;, BE I"f RESOLVED by the South Bend Redevelopment Commission that: 1. The Commission hereby finds that the consideration set forth in the Contract for Purchase and Sale is reasonable considering the circumstances and that it is in the best interest of the citizens of the City and the South Bend Redevelopment District and consistent with the purposes and requirements set forth in Indiana Code ~ 36-7-14 to accept the counteroffer evidenced in the Contract for Purchase and Sale. 2. The Commission hereby approves and accepts the Contract for Purchase and Sale and authorizes the President and the Secretary to execute and attest, respectively, the Assignment of the Contract for Purchase and Sale and/or the Contract for Purchase and Sale with such changes in form or in substance as they deem to be necessary or appropriate to complete the transfer, with such approval to be conclusively evidenced by as such execution and attestation, respectively. The President and/or Secretary are each authorized to execute and deliver any other documentation necessary to complete the acquisition of the Property. Legal counsel for the Commission is fw-ther authorized to close the transaction nn behalf of the Commission and execute any incidental closing documents necessary to complete the transaction. 3. The Secretary of the Commission is instructed to place a copy of the assignment and Contract for Purchase and Sale presented to the Commission with this Resolution in the records and minutes of this meeting. ADOPTED at the Regular Meeting of the South Bend Redevelopment Commission held on September 5, 2008, at 1308 County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. CITY OF SOUTH BEND, llEPAKTMENT OF REllEVELOPMENT Prinlec ,Amne art<~ l~il e ATTF,ST: South Bend Redevelopment Commission l'rlnte :ti4nne erne TI( e South Bend Redevelopment Commission EXHIBIT A PROPERTY DESCRIPTION AND PURCHASE PRICE Counter Offer Tax Key No. Address Owner Price 18-8004-0164 1202 S. Lafayette Deister LLC. $25,000.00 CONTRACT FOR PURCHASE AND SALE This CONTRACT OF PURCHASE AND SALE (hereinafter "Contract"), dated this day of September, 2008, between DEISTER, L.L.C. an Indiana Limited Liability Company, ("Seller"); and the SOUTH BEND REDEVELOPMENT COMMISSION (the '`Purchaser"), the governing body of the Department of Redevelopment of the City of South Bend, Indiana, existing and operating under the provisions of Indiana Code ~ 36-7-14, as amended; WITNESSETH THAT: WHEREAS Seller owns certain real property in the Airport Economic Development Area within the corporate limits of the South I3cnd, Indiana, which real property is more particularly described at Exhibit A and together with (i) all servitudes, easements, appurtenances and hereditaments appertaining thereto, and (ii) all improvements, structures, landscaping, and appurtenances situated thereon shall be referred to herein as the '`Property"; and WIIEREAS, Seller is willing to sell the Property to Purchaser, and Purchaser is willing to purchase the Property from Seller upon the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the mutual covenants contained in this Contract and for other good and valuable consideration, the receipt and sufficiency of which hereby is acknowledged, the parties hereby agree as follows: Definitions. 'The following Terms used in this Contract shall have the following meanings: A. "Closing" shalt mean the consummation of the purchase and sale of the Property in accordance with the terms of this Contract upon completion of all conditions precedent herein required, which shall occur on or before thirty (30) days after all approvals required by Indiana law are obtained from the Purchaser B. '`Purchase Price" shall mean the sum of Thirty-nine Thousand and 00/100 Dollars ($39,000.00), which shall comprise the Purchase Price for the Property. C. "Title Company" shall mean Meridian Title Corporation, an AL"fA-approved title insurance company reasonably acceptable to Purchaser, which ultimately will issue a Title Commitment relating to the Property. D. '`Title Commitment" shall mean the commitment issued by a "l~itle Company, in which the Title Company commits itself to issue to Purchaser an Owner's Policy of Title Insurance upon demand, in the amount of the Purchase Price, setting forth the state of the title to the Property and subject only to those "permitted exceptions" described in Section 4 of this Contract 2. Purchase and Sale of the Property. Subject to the terms provisions, and conditions set forth in this Contract, Seller agrees to sell the Property to Purchaser, and Purchaser agrees to purchase the Property from Seller. "fhe Property is described at L;xhibit A, attached hereto and incorporated herein. 3. Purchase Price for Property. The Purchase Price for the Property shall be paid in cash to the Seller by the Purchaser less applicable credits and prorations at Closing by wire transfer or other agreeable method. The Purchaser will pay all closing expenses and fees and the cost of the Title Policy. The Purchaser shall be responsible for all delinquent real and personal property taxes or other income or transfer taxes encumbering the Property or due as a result of this transaction, as well as the 2008 pay 2009 real property taxes. 4. 1xceptions to Title. l~he Property shall be sold subject to only the following: a The lien of general real estate taxes not yet due and payable, and b Liens or encumbrances of a definite or ascertainable amount and which will be paid and discharged in full by or for Seller at or prior to the Closing, and c. Zoning ordinances, and d. Easements ofrecord, liens, encumbrances, and restrictions ofrecord as shown on the Title Commitment and consented to by the Purchaser. 5. Warranties of Seller. Seller hereby warrants and represents as of the date of this Agreement and shall warrant and represent that as of the date of Closing that: a. Seller has not rcccived any notice of, and does not have any actual knowledge of, any violation of any law, ordinance, code, or regulation with regard to zoning affecting the Property. b. Seller has not received any notice. and does not have actual knowledge or information about, any existing or threatened condemnation or other legal action of any kind affecting the Property other than Isom the Purchaser. c. Seller has not rcccived any notice of, and does not have any actual knowledge of, any actual or contemplated special assessments against the Property, or reassessments for general real estate tax purposes affecting the Property. d. Seller owns fee simple insurable title to the Property, subject only to exceptions stated in paragraph 4 above. Prom the present date to the date of 2 Closing, Seller shall assure that any occupants of the Property conduct business on the Property in the manner in which it heretofore has been conducted, incompliance with all federal, state, and local environmental laws and regulations. Neither Seller nor any occupant shall create on the Property any easements or other encumbrances, except as herein specifically authorized, which would prevent Seller from conveying title to Purchaser subject only to such exceptions as herein permitted. Seller shall further reii-ain from entering into or extending any lease of the Property or altering any interest the Seller may have to the detriment of the Purchaser, unless the Seller first obtains the written consent of the Pw~chaser. In the event that a lease, easement or encumbrance exists with respect to the Property which survives the Closing and does not appear on the Title Commitment, Purchaser shall have the option to terminate, or be deemed the successor in interest to, any such easement, lease or encumbrance, and the Seller hereby agrees to indemnify and defend the Purchaser for any alleged claims or damages resulting from the Purchaser's actions with respect to terminating such casements, leases or encumbrances. e. Except for any items to be assumed by Purchaser or to be prorated as set forth in this Contract, Seller shall be solcl}~ liable Car the payment of all expenses, liabilities, obligations, and claims arising out of Seller's ownership and use of the Property prior to Closing. f. Seller will demolish building, abate any environmental condition and remove all debris and material from site by the date of Closing, in compliance with all State and Pcderal laws, including Indiana Department of Environmental Management and Environmental Protection Agency Guidelines and Regulations. Seller shall have all salvage rights to material from the building. g. Seller shall have caused all occupants and tenants to have vacated the Property on or before Closing, or shall take reasonable steps to have occupants and tenants surrender possession of the Property after Closing in a time frame reasonably satisfactory to Purchaser. If a Seller, as the date of Closing, does not notify the Purchaser, in writing, of a change in any of the foregoing warranted conditions, such warranties and representations shall be deemed to be effecrive as of the date of Closing in addition to the date of this Agreement. 6. Seller Closing Documents. At the tune of Closing the conveyance of the Property to the Purchaser, the Seller shall execute (as applicable) and deliver to the Purchaser: 3 a. A Warranty Dced in the form set forth at Exhibit C conveying marketable, indefeasible fee simple title to the Property, subject only to those items provided for in the Contract, and free and clear of any and all other liens, encumbrances, easements, restrictions, covenants, and other title defects; b. possession of the Property, free and clear of all rights and claims of any other party to the possession, use, or occupancy of the Property consistent with paragraph 5(g) above; c. a vendor's affidavit in form and substance satisfactory to permit the Title Insurer to delete the standard (pre-printed) exceptions from Schedule B of the "title Commitment; d. an affidavit that Seller is not a °foreign person", in lorm and substance required by the Internal Re~~enue Code of 1986, as amended, and the rules and regulations promulgated thereunder; e. an affidavit that the Property is not "property" under the Indiana Responsible Property Transfer Law, as amended, in form and substance satisfactory to the Purchaser or if the Property is `'property under the Indiana Responsible Property Transfer Law, a fully completed disclosure form satisfactory to the Purchaser and in accordance with the provisions of the Indiana Responsible }'roperty Transfer Law; f. a certification that all of the representations and warranties set forth in Paragraph 5 remain true and accurate in all respects; g. a sales disclosure form, a closing statement, and such other customary documents as the Purchaser or the Title Insurer may request in connection with closing the conveyance of the Property to the Purchaser. 7. Environmental Conditions and Rcmediation. To the best of the Seller's knowledge, there is not now, and there has not been, any contamination or pollution of the Property, any part thereof, or of any groundwater thereunder_ by any hazardous waste, material, or substance (the "Hazardous Materials") in violation of any federal, state, or local laws, statutes, or ordinances, or governmental rules, regulations, or orders affecting the Property (the "Environmental Laws"). To the best of the Seller's knowledge, there are no underground storage tanks ("UST") on, in, or under the Property. Other than as set forth herein, inspection of the Property by any third party consultants is hereby waived by the Purchaser who is relying upon its own examination and inspection oC the Property and agrees to purchase the Property in its "As Is" condition, with all faults. 4 Seller shall be responsible for demolishing the improvements located on the Properly, and Seller shall be required to dispose of any asbestos as a result of demolition. Seller will obtain approval for any demolition and/or removal of asbestos from Indiana Department of Environmental Management ("IDEM") or any other local, state, or federal governmental agency required to approve such action. 8. Title Insurance Commitment and Policy. At the Closing, a Policy of Title Insurance or an endorsement to the Title Commitment shall be issued to Purchaser insuring Purchaser's fee simple interest in the Property, as of the date of Closing, subject only to the exceptions stated in paragraph 4 above, and subject only to standard printed exceptions normally contained in Title Insurance Policies issued by the Title Company. Purchaser and Seller shall share equally all charges and costs of such Title Insurance Policy. If Seller shall not have corrected defects in marketable title or if the title insurance issuer shall refuse to accept such corrective material and to insure against such connective material, Purchaser shall have the option either to declare this Contract to be null and void or to waive such defects as a basis for such rescission and to proceed with consummation of the sale notwithstanding such defects. 9. Removal of Seller's Property. On or before Closing, or subsequent to Closing, in a time frame satislactory to Purchaser, Seller shall have demolished at no expense to Purchaser, except as desc;ribcd in Paragraph 7 above, all equipment, personal property, and other items of any kind or nature from the Property. Any fixtures, equipment or personal property not removed by the Closing Date or a later date satisfactory to Purchaser shall be deemed to be abandoned and Seller hereby agrees to indemnify, defend and hold the Purchaser harmless for the removal and disposal of any equipment or personal property in or on the Property, whether such items are owned by the Seller or athird-party. 10. Remedies Upon Default. If Seller or Purchaser breaches or defaults any of the terms of this Contract, the remedies available to Seller or Purchaser are all those available at law or equity. l 1. Notices. All notices, elections, requests, and other communications hereunder shall he in writing and shall be deemed sufficiently given ifpersonally delivered or when deposited in the United States mail, certified or registered postage prepaid, or when delivered to a nationally recoguiz_ed overnight courier service with guaranteed next business day delivery and addressed as Collows (or to such other person, or to such other address, of which any party hereto shall have given written notice as provided herein): Seller Dcister, L.L.C. c/o Joseph Grabill, Registered Agent 24] 0 N. Grape Road, Suite 1 Mishawaka. IN 46545 Purchaser Donald E. Inks, Director Department of Redevelopment City of South Bend, Indiana 227 W. Jefferson Boulevard, Suite 1200 South Bend, IN 46601-1830 5 With copy to: Charles S. Leone, Esq. City Attorney City of South Fiend, Indiana 227 W. Jefferson Boulevard, Suite 1400 South I3end, IN 46601-1830 12. F3rokeragc Commission. Seller and Purchaser warrant and represent that there arc no finders or brokers entitled to fees or commissions which may be due from the introduction of Seller and Purchaser or the purchase and sale of the Property. All brokerage fees shall be the sole expense of Scllcr. 13. Closing of the Purchase and Sale. Provided that all conditions set forth herein have been satisfied or waived within the time period required, the Closing shall take place at such time and date set forth in Section 1(A) ,unless the parties mutually agree in writing to another date and/or time. The Closing shall occur at the offices of the Title Company, or at such other place as agreed by Purchaser and Seller. 14. Survival of Contract. The representations, warranties, and covenants of Scllcr herein contained (or in any other document executed by the Seller to effect the transaction herein intended) shall survive the Closing and remain in force and effect thereafter. 15. Contract Binding. This Contract shall be binding upon and shall inure to the benefit of Seller and Purchaser and their respective successors and assigns. This Contract may be executed in counterparts, all of which shall be deemed originals. If any provision of this Contract is held by a court of competent j urisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 16. I-leadings and Captions. The several headings and captions of the sections and subsections used herein are for convenience or reference only and shall not be deemed to limit, define, or restrict the substantive provisions of this Contract. 17. Entire Contract. This Contract constitutes the entire agreement of Purchaser and Seller with respect to the purchase and sale of the Property, superseding any prior to contemporaneous agreement with respect thereto. No representation, promise, or inducement not included in this Contract shall be binding upon the parties hereto. No amendment or modification of this Contract shall be binding upon the parties unless made in writing and signed by both Seller and Purchaser. 18. Cooperation. Purchaser and Seller shall use their best efforts and shall cooperate fully with each other to carry out and effectuate the purchase and sale of the Property in accordance 6 herewith and the satisfaction and compliance with all of the conditions and requirements set forth herein. l9. Governing Law. "hhis Contract and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Indiana. 20. Time of I'ssence. Time is of the essence of this Contract. 21. Waiver of Jurv Right Attorneys Fees. The parties acknowledge that disputes arising under this Contract 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 ar proceeding based upon, or related to the subject matter of this Contract. 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. In the event of any litigation, mediation or arbitration between the parties regarding an alleged breach of this Contract, neither party shall be entitled to any award of attorneys' fees. 22. Ann's Length Transaction. This Contract was negotiated by the parties at arm's length and each of the parties hereto has reviewed the agreement after the opportunity to consult with independent counsel. Neither party shall maintain that the language in this Contract shall be construed against any signatory hereto. 23. Relocation. Seller waives and disclaims any and all right and/or entitlement for any relocation expenses or reimbursements either it or any business occupying the Property may have as a result of Purchaser's purchase of the Property. 24. Further Cooperation at Closing. At Closing, the parties shall execute such other documents as may be legally necessary, customary, or reasonably required by either party or the Title Company to carry out the intent of this Agreement. (remainder o~~page intentionally left blank) 7 IN WITNESS WHEREOF, Purchaser and Seller have cxccuted this ContractlorPurchase and Sale on the date set forth above. SL;LLliK: DEISTER. L.L.C., an Indiana Limited Liability Company Primed :A'ame and 7111e PURCHt\SliR: SOUTH BEND REDEVELOPMENT COMMISSION Printed .A'ai~re and TIIIe AT I E~~T: Prtnicd ,fame cmd l3tle (Signature Page of Contract for Purchase and Sale) S"PATE OP INDIANA ) SS: ST. JOSEPH COUNTY ) I3cfore me, the undersigned, a Notary Public for and in said County and State this day of 2008, personally appeared and known to be the and , respectively, of the South Bend Redevelopment Commission and acknowledged execution of the foregoing Contract on behalf of said City. IN WI"I'NESS WHEREOF, I have hereunto subscribed my name and affixed my official seal. (SEAL) Resident of the County, Indiana My commission expires: Notary Public (Notary Page of Contract for' Pzrr~chase and Sale) STATE OF INDIANA ) SS: ST JOSEPH COUNTY ) I3cfore me, the undersigned, a Notary Public for and in said County and State this day of ?008, personally appeared of Deister, L.L.C., and acknowledged execution of the foregoing Contract. IN Wf1'NESS WI IEREOF, I have hereunto subscribed my name and affixed my official seal. (SEAL) Notary Public Kesidenl of the County, Indiana My commission expires: Gibnc}ldcistcrContract3 vcrs'2doc szsos (Notary Page of Contract for Purchase and Sale) EXHIBIT A Description of Property Common Address: 1202 South Lafayette South Bend, 1N 46601 Tax Id. Numbers: 18-8004-0162 EXHIBIT B Warranty Deed RETURN I-O: Grantee's Address and Mail "I ax Statements to: Property Addresses: Tax ld Nos. 1202 South Lafayette 18-8004-0162 South Bend, IN 46601 WARRANTY DEEll DEISTER, L.L.C., an Indiana Limited Liability Company, The Grnnfor Conveys and Warrants to AUDITOR'S KECORD Transfer No. Taxing Unit llate 1HIJ CITY OI' SOUTII BL,Nll, FOR TIIE USE AND BENL;FIT OF ITS DEPAR'TMIiNT OF RT;DEVELOPMI;NT , The Grantee For and in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, the following described real estate in St. Joseph County, in the State olhdiana, to wiL SEE ATTACHED SCHEDULE A-LEGAL DESCRIP"IIONS Subject to covenants, restrictions and casements of record. Subject to legal highways. Subject to all unpaid taxes and asscssmentsfor the year 2007 due and payable in 2008 and for al I subsequent years, which the grantees herein agree to assume andpay. The undersigned person executing this Deed on behalf of Grantor represents and certif ies that he/she is the duly elected officcrof Grantorand has been fully empowered by proper resolution of the Board of Directors of Grantor, to execute and deliver this Deed; that Grantor has full corporate capacity to convey the real estate described herein; and that all necessarycorporateaction forthe making of such conveyance has been taken and done. Signed and dated this day of , 2008. STATF, OF INDIANA ) SS: ST. JOSGPI(COUN"l~Y ) DL'IS"TLR, L.L.C., an Tndiana Limited Liability Company By: Before me, a Notary Public in and for said Counly and State, personally appeared and stated under oath that he/she is the _ of DL;ISTF,R, L.L.C., and that he/she has been duly authorized to execute and deliverthis decd on behalfof the corporation and acknowledged the execution of the foregoing Corporate Warranty Deed on , 2008. My Commission Expires: Notary Public Residing in St Joseph County "I~HIS INSTRUMENT PREPARED BY: Richard A. Nussbaum, I1, Attorney at I,aw, 5th Floor -Plaza Building, 210 S. Michigan St., P.O. Box 300, South Bend, Indiana 46624. I affirm, under the penalties Cor perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law- Richard A. Nussbaum, II. 13 scHrunLFA 14