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HomeMy WebLinkAbout6B(5) c 6 (5) REAL ESTATE PURCHASE AGREEMENT THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") is made and entered into this day of September, 2014, by and between the South Bend Redevelopment Commission, governing body of the South Bend Department of Redevelopment ("Commission"), and Great Lakes Capital Development LLC, an Indiana limited liability • company ("Developer") (each sometimes being referred to herein as a "Party" or collectively as the "Parties"). PRELIMINARY STATEMENT WHEREAS, Commission is the owner of certain real property and improvements thereon situated in the County of St. Joseph, State of Indiana, and is willing to sell such real property to Developer, and Developer is willing to purchase such real property and improvements from Commission,upon the terms and conditions hereinafter set forth; and WHEREAS, Commission and Developer have entered into a development agreement dated as of March 27, 2014 regarding the sale and development of certain property within the City of South Bend certified technology park known as Ignition Park (the "Development Agreement"); and WHEREAS, the Development Agreement provides for Developer to construct certain improvements on the property it purchases in Ignition Park, namely, the First Building Project, the Second Building Project and the Third Building Project (all as defined in the Development Agreement). NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. Definitions. Capitalized terms not otherwise defined herein shall have the meaning assigned to them in the Development Agreement. In addition to terms defined elsewhere in this Agreement, the following terms, for the purpose of this Agreement, shall have the meanings set forth below: (a) "Closing" shall mean the consummation of the purchase and sale of the Premises in accordance with the terms of this Agreement upon completion of all conditions precedent herein required. • (b) "Closing Payment" shall mean the payment by Developer to Commission of One Dollar($1.00) at Closing. (c) "Environmental Indemnity Agreement" shall mean the environmental indemnity, remediation, and access agreement entered into by and between the Parties dated as of the same date hereof. (d) "Premises" shall mean that certain parcel of real property located in St. Joseph County, Indiana, as presently identified by legal description on Exhibit "A" attached hereto and made a part hereof. The full legal description of the Premises shall be noted on the survey to be provided by Commission as hereinafter required. Said Premises shall include all of Commission's right, title and interest, if any, in and to (i)any land lying in the bed of any street, road or avenue, open or proposed, in front of or adjoining such real property to the center line thereof to the extent included in the legal description of the Premises, but subject to public rights-of-way and easements; (ii)any strips and gores of land adjacent to, abutting or used in connection with such real property; (iii) any easements and rights, if any,inuring to the benefit of such real property or to Commission in connection therewith; and(iv) any and all rights in and to any leases, licenses or other assets of any type or nature pertaining to the use of such real property. (e) "Purchase Price" shall mean the Purchase Price for the Premises of Two Hundred Twenty-five Thousand Dollars ($225,000.00). (f) "Title Commitment" shall mean the commitment issued by an ALTA approved title insurance company ("Title Company") selected by Commission in which the Title Company commits itself to issue to Developer an Owner's Policy of Title Insurance upon demand in the full amount of the Purchase Price, setting forth the state of the title to the Premises and subject only to those"permitted exceptions"hereinafter described. 2. Purchase and Sale of Property. Subject to the terms,provisions and conditions set forth herein, Commission hereby agrees to sell the Premises to Developer, and Developer hereby agrees to purchase the Premises from Commission. 3. Purchase Price and Closing Payment. Developer shall pay to Commission at Closing, the Closing Payment of One Dollar ($1.00). Upon the Certificate of Occupancy being issued for the First Building Project, Developer shall pay to Commission the balance of the Purchase Price for the Premises in the sum of Two Hundred Twenty-five Thousand Dollars ($225,000.00). 4. Survey of Premises. Promptly after execution hereof, Commission shall order and procure, at the expense of Commission, a boundary survey of the Premises showing the location, area and dimensions of all improvements, easements, streets, roads, flood hazard areas and alleys on or abutting said Premises, and providing a legal description of the Premises. 5. Title to Premises. (a) State of Title to be Conveyed. At the Closing, Commission shall convey to Developer, by a quitclaim deed in which Commission warrants as to its own acts affecting title, fee simple title to the Premises, free from all liens, encumbrances, restrictions, rights-of- way and other matters,-excepting only the "permitted exceptions" described as follows: (i)the lien of general real estate taxes not yet due and payable, subject to proration of taxes as hereinafter provided; (ii) liens or encumbrances of a definite or ascertainable amount and which will be paid and discharged in full by or for Commission at or prior to the Closing; and (iii)zoning ordinances, easements, visible or of record, matters disclosed by the survey, and other restrictions and limitations of record provided the same do not prevent or materially interfere with Developer's intended use of the Premises. In addition, the deed shall be subject to -2- any covenants, terms or conditions required of Developer in the Development Agreement and this Agreement. (b) Title Insurance Commitment and Policy. Promptly after the execution hereof, Commission shall order and procure the Title Commitment, at the expense and for the account of Commission. At the Closing, a Policy of Title Insurance or an endorsement to the Title Commitment shall be issued to Developer as of the date and time of recording, insuring Developer's fee simple interest in the Premises in the state required by Section 5(a) above, and subject only to the "permitted exceptions." Commission shall pay for all charges and costs of such Title Insurance Policy. (c) Objections to State of Title. If title to the Premises is not in the state required by Subsection 5(a) above,Developer shall give written notice to Commission within ten (10) business days after the date it receives the Title Commitment and survey, specifying its objection(s)to the state of title to the Premises. Commission shall thereupon have a period of ten (10) days in which it shall use its best efforts to remedy the objection(s) or to induce the Title Company to issue an endorsement to the Title Commitment insuring over or removing such objection(s). If Developer's objection(s) to the state of title to the Premises are not remedied by Commission within such ten (10) day period,then Developer shall have the right, within ten(10) days thereafter, to give written notice to Commission that Developer either (i) waives such title defects or objections and elects to proceed to acquire the Premises without adjustment to the Purchase Price, (ii) waives such title defects or objections and elects to proceed to acquire the Premises with adjustment to the Purchase Price (if such objection involves a lien or other matter for which a monetary amount can be paid to cure), or (iii) terminates this Agreement, in which case the rights and obligations of the parties hereto shall thereupon cease. 6. Commission's Covenants, Warranties and Representations. Commission hereby covenants, warrants and represents that Commission owns fee simple marketable title to the Premises, has the authority to enter into and consummate this Agreement and the transaction herein intended, and will take and perform those acts which are necessary hereunder in order to fulfill the terms and conditions hereof. 7. Closing. (a) Closing shall take place no later than thirty (30) days after Developer has obtained the survey and Title Commitment in the state herein required, unless extended in writing by mutual agreement of the parties hereto. The Closing shall occur at the offices of the Title Company, or at such other place as agreed by Developer and Commission. Developer and Commission agree to deposit with Title Company not later than the date of the Closing all executed documents required in connection with this transaction, including such documents as requested by the Title Company issuing the Title Policy as well as an Access Agreement (in the form attached hereto) regarding the access to and use of certain property for the location of a roadway serving the Premises and property to the north of the Premises. Upon receipt of all necessary documents, receipt of the Closing Payment by Commission, and when the Title Company is in a position to issue to Developer a Policy of Title Insurance, Title Company shall on the date of the Closing, upon instructions from Developer and Commission, cause the deed to the Premises and any other necessary or appropriate instruments to be filed for record. -3- Commission hereby agrees that it shall be solely liable for and shall pay for: (i) the preparation of the survey required under Section 4 hereof; (ii)the issuance of the Title Commitment required under Subsection 5(b) hereof; (iii) the premium charged for the issuance of said ALTA owner's title policy issued pursuant to said commitment; (iv) all costs of its attorney and consultants, including (without limitation) environmental consultants engaged by City related to this transaction; and (v) the Phase I environmental site report ordered by Developer (as provided in the Development Agreement). Developer hereby agrees that it shall be solely liable for and shall pay for its attorney and consultant fees and all other fees and expenses incurred by Developer to acquire the Premises not specifically allocated to Commission by this Agreement. Each party shall be responsible for its other costs and expenses in accordance with the obligations or conditions to be performed by each respective party hereto. At the time of Closing, Commission and Developer shall execute and deliver a closing statement setting forth said Purchase Price, with such closing adjustments thereto as may be applicable. 8. Environmental Matters. The Parties acknowledge they have previously entered into the Environmental Indemnity Agreement, which sets forth the Parties rights and obligations with respect to environmental conditions existing on the Premises at the time of its execution. The Parties acknowledge further that the Premises are the subject of ongoing Remediation Work (as that term is defined in the Environmental Indemnity Agreement) as a part of the Indiana Department of Environmental Management's Voluntary Remediation Program. 9. Remedies Upon Default. In the event Developer breaches or defaults under any of the terms of this Agreement, Commission shall be entitled to retain the Earnest Money Deposit as its sole remedy at law or in equity. In the event Commission breaches or defaults under any of the terms of this Agreement, Developer shall receive a refund of the Earnest Money Deposit, with accrued interest thereon and, in addition, Developer shall have the right to such other damages as may be available in law or equity, including the right to compel specific performance of this Agreement and the right to recover Developer's costs and expenses incurred in enforcing the terms and conditions of this Agreement, including but not limited to Developer's attorney fees,paralegal fees and court costs. 10: Notices. All notices, elections, requests and other communications hereunder shall be in writing and shall be deemed sufficiently given when personally delivered or when deposited in the United mail, postage prepaid, certified or registered, 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): If to the Commission,to: South Bend Redevelopment Commission 227 W. Jefferson Blvd., Suite 1400 S. South Bend,IN 46601 Attn: President With a copy to: Office of Corporation Counsel 227 W. Jefferson Blvd., Suite 1200 S. South Bend,IN 46601 Attn: Cristal Brisco -4- If to Developer,to: Great Lakes Capital Development, LLC 112 W. Jefferson Blvd., Suite 200 South Bend, IN 46601 With a copy to: Richard J. Deahl Barnes& Thornburg LLP 100 North Michigan St., Suite 600 South Bend, IN 46601 11. Brokerage Commission. Commission and Developer each warrant and represent that there are no finders or brokers entitled to fees or commissions which may be due from the introduction of the Commission and Developer and/or the purchase and sale of the Premises. 12. Miscellaneous. (a) Binding Effect and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and to their respective successors and assigns. The rights and obligations contained in this Agreement may be assigned by Developer to another entity that is an affiliate of Developer without the consent of the Commission. (b) Amendment. This Agreement may only be amended or otherwise modified as may be agreed upon in writing by the Parties. (c) Headings and Captions. The several headings and captions of the Sections and Subsections used herein are for convenience or reference only and shall, in no way, be deemed to limit,define or restrict the substantive provisions of this Agreement. (d) Entire Agreement. This Agreement constitutes the entire agreement of Developer and Commission with respect to the purchase and sale of the Premises superseding any prior or contemporaneous agreement with respect thereto. No amendment or modification of this Agreement shall be binding upon the parties unless made in writing and signed by both Commission and Developer. (e) Severability. If any term, provision, covenant or restriction contained in this Agreement that is intended to be binding and enforceable is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions contained in this agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. (f) Governing Law. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Indiana. -5- IN WITNESS WHEREOF, the parties hereto have executed this Real Estate Purchase Agreement on the day,month and year set forth below. Executed by Developer this day of September, 2014. GREAT LAKES CAPITAL DEVELOPMENT LLC By: Ryan C. Rans,Managing Member "Developer" • Accepted and executed by Commission this day of September,2014. SOUTH BEND REDEVELOPMENT COMMISSION By: Printed: Its: "Commission" -6- EXHIBIT "A" Legal Description of the Premises LOT NUMBERED SEVEN (7) IN THE REOCRDED PLAT OF IGNITION PARK MAJOR SUBDIVISION, SECTION TWO, RECORDED JULY 1, 2014 AS INSTRUMENT NUMBER 1415380 IN THE OFFICE OF THE RECORDER OF ST. JOSEPH COUNTY, INDIANA ("RECORDER"), AS CORRECTED AND RE-RECORDED WITH THE RECORDER ON SEPTEMBER 18, 2014 AS INSTRUMENT NO. 1423192. Property Address: V/L Ignition Drive South, South Bend, IN 46624 • • SBDS02 451351v3 -7-