HomeMy WebLinkAbout6.C.(6) Resolution No. 2505~ C. ~~~
RESOLUTION NO. 2505
RESOLUTION APPROVING AND ACCEPTING A COUNTEROFFER
FOR THE ACQUISITION OF PROPERTY IN THE
AIRPORT ECONOMIC DEVELOPMENT AREA
WllF,REAS, under the authority granted by Ind. Code § 36-7-I4, et sey. and in
furtherance of the Airport Economic Development Area Development Plan (the "Plod'),
the South Bend Redevelopment Commission (the "Commissiod') 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
"Area") within the City of South Bend, Indiana (the "City"), which property is more
particularly described at Exhibit A attached hereto and incorporated herein (the
'`Property"); and
WHEREAS, 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 oP 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
WHEREAS, the staff has presented the Owner an offer for the Offering Price as
authorized, which the Owner rejected; and
WIIEREAS, the Owner has provided a counteroffer to the Commission for
$39,000, which includes all expenses related to the acquisition; and
WHEREAS, the Commission desires to purchase the Property for $39,000,
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
WHEREAS, 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
WHF,REAS, the Commission has completed its acquisition procedures for the
Property and sufficient funds arc available for the purchase of the Property;
NOW, "fHERI'TORE, I3E IT RESOLVED by the South Bend Redevelopment
Commission that:
1. The Commission hereby finds that the consideration set forth in the
Contract for Purchase and Salc is reasonable considering the circumstances and that it is
in the best interest of the citizens of the City and the South Bcnd Redevelopment District
and consistent with the purposes and requirements set forth in Indiana Code ~ 36-7-14 to
accept the counteroffer evidenced in the Conh~act 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 cxecute 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. "hhe 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 further
authorized to close the transaction on behalf of the Commission and cxecute any
incidental closing documents necessary to complete the transaction.
3. 1'he 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 Wcst
Jefferson I3oulevard, South E~end, Indiana 46601.
CITY OF SOUTH BENll,
DEPARTMENT OF REllEVELOPMENT
rind\ame an - lit e
ATTEST:
South Bend Redevelopment Commission
Prlnle Name an 771 e
South Bend Redevelopment Commission
EXHIBIT A
PROPERTY DESCRIPTION nND PURCHASE PRICE
Counter Offer
Tax Key No. Address Owner ~
Price
18-8004-0162 1202 S. Lafayette Deister LLC. $39,000.00
CONTRACT FOR PURCHASE AND SALE
This CON"I~IZACT OF PURCHASE AND SALE (hereinafter "Contract"), dated this
day of September, 2008, between DLISTER, L.L.C. an Indiana Limited Liability Company,
("Seller"); and the SOU"1'H BLND REDEVF_LOPMENT COMMISSION (the "Purchaser"), the
governing body of the Department of Redevelopment of the City of South Bcnd, 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 Bend, 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
WHEREAS, 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:
Detinitions. The following "berms used in this Contract shall have the following
meanm~~s:
~1. "Closing" shall 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'Twcnty-live Thousand and 00/100
Dollars ($25,000.00), which shall comprise the Purchase Price for the
Property.
C. "Title Company shall mean Meridian Title Corporation, an ALTA-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 Title Company,
in which the Title Company commits itself to issue to Purchaser an Owner's
Policy o£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. The Property is described at Exhibit 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~av 2009 real property taxes.
4. Exceptions to Title. 1'hc 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 Dosing, and
c. Zoning ordinances, and
d. Easements of record, liens, encumbrances, and restrictions of record as shown
on the Title Commitment and consented to by the Purchaser.
5. Warranties oC 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. Scllcr has not received any notice of, and does not have any achtal 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 tlu~eatcned condemnation or other legal
action of any kind affecting the Property other than from the Purchaser.
c. Seller has not received 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
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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, in compliance 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
refrain 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 Purchaser. In the event that a
least, casement 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 easements, leases or encumbrances.
c. Except for any items to be assumed by Purchaser or to be prorated as set forth
in this Contract, Seller shall be solely liable for the payment of all expenses,
liabilities, obligations, and claims arising out of Seller's ownership and use of
the Property prior to Closing.
f. Scllcr 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 effective
as of the date of Closing in addition to the date of this Agreement.
6. Seller Closing; Documents. At the time of Closing the conveyance of the Property to
the Purchaser, the Seller shall execute (as applicable) and deliver to the Purchaser:
a. n Warranty Deed in the form set forth at Lxhibit C conveying marketable.
indefeasible fee simple title to the Propcriy, subject only to those items
provided for in the Contract, and 1i~ec and clear of any and all other liens,
encumbrances, easements, restrictions, covenants, and other title defects;
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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 form and substance
required by the Internal Revenue Codc 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 "I'ransfcr Law, as an~endcd, in Iorm 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 Property Transfer Law;
f. a certification that all of the representations and warranties sei 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 Remediation. `I'o 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 haws"). 1'o the
best of the Seller's knowledge, there arc no underground storage tanks (°i1S"I~") 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 of the
Property and agrees io purchase the Property in its "As Is" condition. with all faults.
8. Title Insurance Commitment and Policv. 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 Dosing, subject only to the exceptions stated in
paragraph 4 above, and subject only to standard printed exceptions normally contained in "title
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Llsurance Policies issued by the Title Company. Purchaser and Seller shall share equally all charges
and costs of such Title Insur~uice 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 corrective 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 fi•amc satisfactory to Purchaser; Seller shall have demolished at no expense to Purchaser,
except as described 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. Kemedies Upon Default If Seller or Purchaser breaches or defaults any of the terms
of this Contract, the remedies available to Seller or Purchaser arc all those available at law or
equity.
11. Notices. All notices, elections, requests, and other communications hereunder shall
be in writing and shall be deemed sufficiently given if personally delivered or when deposited in the
United States mail, certified or registered postage prepaid, or when delivered to a nationally
recognized overnight courier service with guaranteed next business day delivery and addressed as
follows (or to such other person, or to such other address, of which any party hereto shall have given
written notice as provided herein):
Scllcr
Deister, L.L.C.
c/o Joseph Grabill, Registered Agent
2410 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
With copy to:
Charles S. Leone, Esq.
City Attorney
City of South Bend, Indiana
227 W. Jefferson Boulevard. Suite 1400
South Bend, IN 46601-1830
12. Brokera~c Commission. Scllcr 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
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and Purchaser or the purchase and sale of the Property. All brokerage fees shall be the sole expense
of Seller.
13. Closi~ 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 sei forth in Section 1(A) ,unless the parties mutually agree in writing to another date
and/or time. The Closing shall occur at the ofllces of the "fide Company, or at such other place as
agreed by Purchaser and Seller.
14. Survival of Contract. The representations, warranties, and covenants of Seller herein
contained (or in any other document executed by the Seller to effect the transaction herein intended)
shall survive the Closing and remain in Corce 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 jurisdiction 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. Pleadings and Captions. The several headings and captions oC the sections and
subsections used herein arc for convenience or reference only and shall not be deemed to limit,
define, or restrict the substantive provisions of this Contract.
l7. 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
herewith and the satisfaction and compliance with all of the conditions and requirements set forth
herein.
19. Governing Law. This 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 Essence. Time is of the essence of this Contract.
21. Waiver of Jury Kight; 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
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resolving such disputes. In any Icgal 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 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. Arm'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 tither 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 of page intentionally left blank)
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IN WITNESS WHEREOF, Purchaser and Seller have executed this Contract for Purchase
and Sale on the date set forth above.
SELLER:
DEIS"fEK, L.L.C., an Indiana Limited Liability Company
Primed :Fame and fide
PUKCIIASER:
SOUTH BEND REDI'JVELOPMENT
COMMISSION
Primed .A'nme and Tide
ATTF~ (':
Yrin[cd Tome and 7'ille
(Signature Page ~f Contract for Puf~chase and Sale)
STATE OF INDIANA )
SS:
S"T. JOSEPH COUNTY )
Before 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 Bcnd Redevelopment Commission and acknowledged execution of the
foregoing Contract on bchall of said Ciry.
IN WITNESS WHLRI;OF,1 have hereunto subscribed my name and affixed my official seal.
(SEAL)
Resident of the County, Indiana
My commission expires:
Notary Public
(IVotaiy Puge of Contract foi~ Pzn~chase and Sule)
S"PATE OP INDIANA )
SS:
S'I~ JOSFPH COUNTY )
Belore me, the undersigned, a Notary Public for and in said County and State this day
of 2008, personally appeared of Dcister, L.L.C., and
acknowledged execution oCthe foregoing Contract.
IN WITNESS WHLIZEOF, I have hereunto subscribed my name and affixed my oflicial seal.
(SEAL)
Notary Public
Resident o1~ the County, Indiana
My commission expires:
Gibney\AeiricrContracf3 versl.doc
82308
(Notary Pale of~Conlracl for Purchase and Sale)
F,XHIBIT A
Description of Property
Common Address: ]202 South Lafayette South Bend, IN 46601
1'ax Id. Numbers: 18-8004-0164
IJXHIBIT B
Warranty Decd
RETURN TO:
Grantee's Address and Mail Tax Statements to:
Property Addresses: Tax Id Nos.
1202 South Lafayette 18-8004-0164
South Bend, IN 46601
WARRANTY DD~ll
DEISTF.R, L.L.C., an Indiana Limited Liability Company,
T/:e Grcu:tor
Conveys and Warrants to
AUDITOR'S RECORD
"Cransfer No.
`faxing Unit
Date
"I'HE CITY OF SOUI~I I BEND, FOR TI IE USE AND F3ENF,PIT OF ITS DL;PAR1'MENT OF
REDEVELOPMENT ,T/re 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 o~ndiana, to
wit:
Sl?G n"I"fACHED SCIiEDULEA-LEGAL DESCR[P"PIONS
Subject to covenants, restrictions and easements of record.
Subject to Icgal highways.
Subject to all unpaid tares and assessmentsfor the year2007 due and payable in ?008 and for all subsequent
years, which the grantees herein agree to assume anc~ay.
I~hc undersigned person executing this Deed on behalf of Grantor represents and certif ies that he/she is the
duly elected officerof Grantor and has been fully empowered by proper resolution of the Board of Directors of
Grantor, to execute and deliver this Decd; that Grantor has full corporate capacity to convey the real estate
described herein; and that all ^ecessarycorporateaetion for the making of such conveyance has been taken and
done.
Signed and dated this day of , ?008.
S"I'I~TG OF IND[nNr~ )
SS:
ST. JOSEPI I COUNTY )
ll1;ISTER, L.L.C.,
an Indiana Limited Liability Company
By:
Before me, a Notary Public in and for said County and State, personally appeared
and stated under oath that he/she is the of DIJISTER, L.L.C., and that he/she has been
duly authorized to execute and delivcrthis decd on behalfofthe corporationand acknowledged the execution
ofi the CoregoingCorporate Warranty Decd on , 2008.
My Commission Expires:
Notary Public
Residing in St. Joseph County
"PHIS INSTRUMENT PREPARED BY: Richard A. Nussbaum, 1[, Attorney at Law, 5th Floor -Plaza
Building, 219 S. Michigan St., P.O. Boy 390, South Bend, Indiana 46624.
I affirm, under the penalties for perjury, that 1 have taken reasonable care to redact each Social Security number
in this document, unless required by law- Richard A. Nussbaum, ll.
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SCHLUllLL A
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