Loading...
HomeMy WebLinkAbout6C(1) Agreement with Fire Arts 305 E Colfax~ ~ ~ -) PURCHASE AGREEMENT THIS AGREEMENT made and entered into this day of 2009, by and between the City of South Bend, acting by and through its Department of Redevelopment (the "Grantor"), and Fire Arts, Inc., an Indiana non-profit corporation (the "Grantee"). WITNESSETH: WHEREAS, the Grantor holds fee simple title to the real estate described in Exhibit A, attached hereto and made a part hereof (the "Real Estate"); and WHEREAS, the Grantor has allowed the Grantee to use the Real Estate pursuant to that certain "Letter Agreement for Temporary Use of PAC Graphic Building" (the "Letter Agreement") (Exhibit B) dated August 31, 2004; and WHEREAS, the Grantee has been in continuous possession of the Real Estate since execution of the Letter Agreement and has made significant improvements to the Real Estate (Exhibit C) during said period; and WHEREAS, the Grantor now wishes to sell the Real Estate to the Grantee and the Grantee wishes to purchase the Real Estate from the Grantor; and WHEREAS, the Grantor and the Grantee wish to reduce their agreement to writing; NOW THEREFORE, in consideration of the promises and the mutual covenants of the Grantor and the Grantee herein contained, it is mutually agreed as follows: 1. Upon satisfaction of the covenants contained herein, the Grantor agrees to sell to the Grantee, and the Grantee agrees to purchase from the Grantor, for Ten and 00/100 Dollars ($10.00) (the "Purchase Price"), the Real Estate located in St. Joseph County, State of Indiana, commonly known as 305 East Colfax, South Bend, Indiana, and more fully described in Exhibit A attached hereto and incorporated herein by reference. The value of the aforesaid Real Estate is Two Hundred Fifty Nine Thousand Two Hundred Fifty Dollars ($259,250.00) as determined by the average of the certified real estate appraisals, prepared for the Grantor, and upon which the parties rely. This Agreement and the Grantee's acceptance of and the recording of a document of transfer shall constitute the Grantee's acceptance of the Real Estate. 2. Taxes on the Real Estate for the year 2009, payable in 2010, shall be prorated and the Grantee shall be liable for all real estate taxes and other assessments against the Real Estate commencing on the Date of Transfer. The Grantor and the Grantee acknowledge that the Real Estate has been tax-exempt until the Date of Transfer. The parties believe that the Real Estate will remain tax-exempt following the Date of Transfer; however, the parties do not rely on this status as a basis for the agreement herein. The Grantor shall pay, on or before the Date of Transfer, all assessments against said the Real Estate which shall become a lien thereon after the date of this Agreement and prior to the Date of Transfer. 3. The Grantor represents and warrants that it has good and merchantable title to all of said described Real Estate in fee simple, free and clear of all liens and encumbrances but subject to current taxes and zoning regulations. On the Date of Transfer, the Grantor agrees to execute and deliver to the Grantee a good and sufficient quit claim deed conveying said Real Estate, in fee simple, free and clear of all liens and encumbrances but subject to current taxes and zoning regulations, and all such other documents necessary to convey the Real Estate to the Grantee under applicable law. The Parties acknowledge that the Grantor may transfer the Real Estate to another entity of the City of South Bend for purposes of transferring the Real Estate to the Grantee and that a quit claim deed from such entity to the Grantee shall be sufficient to satisfy the Grantor's obligation to transfer the Real Estate to the Grantee. Within a reasonable period of time prior to the Date of Transfer, the Grantor shall provide the Grantee with a title insurance commitment for the Real Estate in the amount of $259,250.00. 2 In the event the Grantee has any objections to title, the Grantee shall notify the Grantor of said objections in writing. If the Grantor is unable or unwilling to cure such defects, to the satisfaction of the Grantee, then the Grantee shall have the option of terminating this Agreement. As of the Date of Transfer, the Grantor shall provide the Grantee with a title insurance policy insuring over all objections to or defects in title of the Grantor and on a standard form ALTA Owner's Policy. 4. The risk of loss or damage to said Real Estate or to improvements on said Real Estate is assumed by the Grantor until delivery of said quit claim deed by the Grantor to the Grantee at the Date of Transfer. 5. The Grantor agrees to deliver possession of the Real Estate, pursuant to this Agreement, to the Grantee on or before the 1st day of October, 2009, (the "Date of Transfer") contingent upon satisfaction of the covenants contained herein. On the Date of Transfer, the Grantor shall warrant that there are no existing leases on the Real Estate or tenants who have any right to occupy the Real Estate. 6. Prior to the Date of Transfer, if the Grantor has a Phase 1 and Phase 2 environmental study report on the Real Estate, it will provide them to the Grantee. If the Grantor does not have the studies in hand, the Grantee, at its option, may obtain a Phase I Environmental Report of the Real Estate at the Grantee's cost, and a Phase II study if recommended by the environmental engineers. This Agreement is contingent upon the Grantee being able to determine to its satisfaction that: (a) the Real Estate is not in any way contaminated with any hazardous substance; (b) the Real Estate is not subject to any federal, state or local "superfund" lien, proceedings, claim, liability or action, or the threat or likelihood thereof, for the clean-up, removal or remediation of any such hazardous substance from the Real Estate or from any other real property owned or controlled by the Grantor or in which the Grantor has an interest, legal or equitable; (c) there is no asbestos on the Real Estate; and (d) there is no underground storage tank 3 on the Real Estate. The terms "hazardous substance", "release" and "removal" as used herein shall have the same meaning and definition as set forth in paragraphs (14), (22) and (23), respectively, of Title 42 U.S.C. §9601 and LC. 13-7-8.7-1, provided, however, that the term "hazardous substance" as used herein also shall include "hazardous waste" as defined in paragraph (5) of 42 U.S.C. §6903 and "petroleum" as defined in paragraph (8) of 42 U.S.C. §6991. The term "superfund" as used herein means the Comprehensive Environmental Response, Compensation and Liability Act, as amended, being Title 42 U.S.C. §9601 et seq., as amended, and any similar state statute or local ordinance applicable to the Real Estate including, without limitation, LC. 13- 7-5-1, et seq. and I.C. 13-7-8.7-1, et seq. and all rules and regulations promulgated, administered and enforced by any governmental agency or authority pursuant thereto. The term "underground storage tank" as used herein shall have the same meaning and definition as set forth in paragraph (1) of 42 U.S.C. §6991. 7. The Grantor shall have no obligation to remediate any hazardous substance condition of the Real Estate. If remediation is necessary in order to transfer an acceptable site to the Grantee, the Grantee may terminate this Agreement and vacate the Real Estate, prior to the Date of Transfer. 8. The Grantee agrees for a period of twenty five (25) years following the Date of Transfer, to maintain the Real Estate as anot-for-profit fine arts studio and gallery and may transfer the Real Estate to a third party only if such third party agrees to the covenant in this paragraph and such transfer shall be subject to the written consent of the Grantor. The Grantor shall not unreasonably withhold its consent. The Grantee acknowledges that if this covenant is breached during the period stated herein, ownership of the Real Estate shall revert to the Grantor. The Grantee further agrees that the transfer document shall contain such a restriction and reversion clause. 4 9. The Grantor and the Grantee agree that the provisions of this Agreement shall be binding upon, apply to and inure to the benefit of the Grantor and the Grantee and their respective heirs, legal representatives, successors and assigns. 10. The Grantee represents and warrants that it has all requisite corporate authority to enter into this Agreement. 11. The Parties agree to take such actions, including the execution and delivery of documents and instruments, as may be necessary or appropriate to carry out the terms and intent of this Agreement and to aid and assist each other in carrying out the terms and intent. 12. No recourse under or upon any obligation, covenant or agreement of this Agreement or for any claim based thereon or otherwise in respect thereof shall be had against the appointed or elected public officials of the Grantor, the City of South Bend (the "City") or the South Bend Redevelopment Commission (the "Commission") or their respective officers, agents, and employees, in any amount subject to the terms and conditions herein, and no liability, right or claim at law or in equity shall attach to or shall be incurred by the public officials of the Grantor, the City, the Commission or their respective officers, agents, and employees and all such claims are hereby expressly waived and released as a condition of and as a consideration for the execution of this Agreement by the Grantor, provided such elected officials, officers, agents, and employees are acting pursuant to lawful authority and are uniformly enforcing and/or administering the laws, ordinances, practices and procedures of the City and the Commission. 13. If any portion of this Agreement, or its application to any person, entity or property, is held invalid or unenforceable, the application or validity of any other portion of this Agreement shall not be affected. 14. The Parties shall each bear their own costs and expenses with respect to this Agreement and the other matters contemplated hereby, including, without limitation, the fees and 5 expenses of their respective legal counsel, provided however, that the Grantor shall be responsible for the recording costs and any other similar closing. 15. This Agreement shall be construed in accordance with the laws of the State of Indiana. 16. This Agreement may be executed in more than one counterpart which, when executed, shall together constitute one agreement. IN WITNESS WHEREOF, the Grantor and the Grantee have signed this Agreement on the day and year first above written. ATTEST: ignature rime ~ ame an Tit e South Bend Redevelopment Commission ATTEST: rinse il~ame an Tit e CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT ignalure Prime game an Tit e South Bend Redevelopment Commission FIRE ARTS, INC. ignatare Prime ;ti'ame an lit e 6 Exhibit A Legal Description Lots Numbered Two (2), Three (3) and Four (4) as shown on the recorded Plat of John Mack's Subdivision of Lots 16, 17 and 18 in the Original Plat of the Town of Lowell, now a part of the City of South Bend, recorded June 11, 1869 in Plat Book 2, page 54 in the Office of the Recorder of St. Joseph County, Indiana. 7 Exhibit B Letter Agreement COU\'TY-CITY BL7ll~ING SOUTH T3F,ND, INDIANA 46601-1830 CITY OF SOUTH BEND STEPHEN J. LUECKE, MAYOR REDEVELOPMENT COMMISSION August 31, 2004 Lane Laffoon, President FIlZE ARTS, INC. 305 East Colfax South Bend, Indiana 46601 PHONE 574/ 235-9371 FAx 574/235-9021 TDD 574/ 235-5567 RE: Letter Agreement for Temporary Use of PAC Graphic Building 305 East Colfax; South Bend Central Development Area Dear Mr. Laffoon: This letter agreement ("Agreement") is entered into by and between the South Bend Redevelopment Commission, governing body of the City of South Bend Department of Redevelopment ("Commission"}, and Fire Arts, Inc. ("FA"). The effective date ofthis Agreement shall be May 7, 2004. Wherefore, the parties hereby agree that: 1. The Commission is the owner of the real property and improvements located at 305 East Colfax Street in South Bend, Indiana and known as the "P.A.C. Graphic Building" ("Premises"). The Commission intends to demolish the improvements located on the real property, but does not anticipate that demolition will occur until some undetermined future date. The Premises will, therefore, be vacant for an indefinite time and it is likely that the Premises will deteriorate thereby requiring the Commission to expend funds to maintain the Premises in a condition that is not injurious to the health, safety and welfare of the general public. 2. FA is an organization consisting of several artists and FA is in need of a facility suitable for use as artists' studios and for the display of artwork. FA has requested the temporary use of the Premises for its artistic endeavors and in consideration thereof, is willing to undertake clean up and minor repair of the Premises. 3. FA has also expressed a willingness to participate in community efforts to promote the design and development of art work in public places intended to enhance South Bend's image. ROBERT W. HUNT MARCIA JONES PHILIP J. FACCENDA 11~1K1)IE BLAKE MATTHEW KAHN PRESIDENT VICE PRESIDENT SECRETARY MEMBER MEMBER East Race Fire Arts August 31, 2004 Page 2 4. By this Letter Agreement by and between the Commission and FA, the Commission hereby agrees to permit FA the temporary use of the Premises for the purposes stated herein. 5. The parties understand and agree that this Agreement is not a lease between the Commission and FA for use of property located at 305 West Colfax and that this Agreement is entered into solely for the purpose of permitting FA the temporary use of the Premises until such time as the Commission desires to proceed with demolition and/or redevelopment of the Premises. 6. FA understands that it shall not be guaranteed any particular term ofmonths or years related to its use of the Premises and hereby acknowledges that its use of the Premises is temporary and that it may be terminated by the Commission at any time by the Commission giving one hundred eighty (180) days written notification. 7. FA hereby agrees to assume Liability for any and all acts and omissions related to FA's temporary use of the Premises which may result in a claim against the City of South Bend or the South Bend Redevelopment Commission and FA further agrees to indemnify and hold harmless the City and the Commission for same. FA also agrees to execute and deliver a separate indemnification agreement in a form acceptable to Commission. 8. FA hereby agrees to submit proof of insurance to the Commission naming the Commission as a co-insured. FA further agrees to notify Commission within five (5) days of any change in insurance coverage or lapse in coverage. FA understands that its use of the Premises is conditioned upon maintaining at ail times insurance coverage consistent with this provision. 9. Whenever under this Agreement a provision is made for notice of any kind, such notice shall be in writing and signed by or on behalf of the party giving or making the same, and it shall be deemed sufficient notice and service thereof if such notice is sent by certified mail, return receipt requested, postage prepaid to: Fire Arts, Inc. 305 West Colfax Street South Bend, Indiana 46601 or to the Commission: South Bend Redevelopment Commission 1200 County-City Building South Bend, Indiana 46601 East Race Fire Arts August 31, 2004 Page 3 with a copy to: South Bend City Attorney 1400 County City Building South Bend, Indiana 46601 IN WITNESS WHEREOF, the parties have caused this Letter Agreement to be executed for and on their behalf on: Date: Cf ~ 3 , 2004 Date: _ ~~--' ~~ , 2004 SOUTH BEND REDEVELOPMENT COMMISSION B' Its: r< 5 ~'~c a f ATTEST: Its: S ~ c .-z~C~~ ,. FIRE ARTS, INC. By ` u~ Its: ~ - ~~itiC ATTEST: By ~ ~~~~-;~L~~ i Its: ~e. Exhibit C List of Improvements SUMMARY OF FIRE ARTS IMPROVEMENTS June 2004 to January 2006 State of the PAC Building when Fire Arts first got use of the building in June 2004 compared with the state of the building now, in .Tannery 200b THEN June 2004 NOW Jauuary 2006 Large holes in the roof, allowing rain to pour in Roof is now sound Gas lines had numerous leaks Repaired & upgraded Gas furnaces not functioning. Repaired or replaced Hot water heaters not functioning; unable to be fixed Purchased 2 new Plumbing not useable Replaced pipes Drains were clogged Cleaned out drain Air conditioning didn't work Repaired air conditioner Glass front windows were broken Repaired & colorfully painted No handicap accessible toilet Constructed & decorated Outside lights in front not functioning; unable to be fixed Replaced with new lighting Lighted roof sculpture added Outside ligh± ir. parking area not furctionLng Repaired Front and side door locks didn't work from the inside Replaced & added alarms Two broken metal gates along Sycamore Now one functioning gate Ugly garage doors on Sycamore Now a graphic painting Minimal electrical service Upgraded No gas to kiln room Service added Inadequate venting from kiln room Installed one kiln vent & Upgraded extsting fan Each room was filled with trash and abandoned furniture Cleared out Rugs were badly stained and unusable Removed; floor painted Wallboard was peeling offthe temporary walls Walls removed Graffiti, signs, posters; banners left on all walls Walls cleaned painted Debris, battles, broken glass, high weeds outside Cleared away Old PAC sign still up Removed; added sculpture Grass not mowed; weeds obstructed view of back neighbor Cleared; maintained Equipment, tools, & furniture donated or loaned include complete: Woodworking area Showroom Wax working area Business of Art office for artists Modeling area Office fox th.e organization Mold making area Lounge area Plaster investment area Stone carving area Pottery kilns Blacksmith area Pottery wheels Welding area Glazing area for pottery Metal chasing area T3ronze foundry The eyesore has been replaced by a beautiful, well kept building; and high quality artwork is visible through the windows for passersby who-walk downtown on their lunch break. People no Langer crass the street at oux dxiveway to walk. on th.e other side.. They walk past Fire Arts and window shop.