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10-16-19-02/Regarding the Purchase of Real Property and Acknowledging Receipt of Contract; Real Estate Purchase Agreement/1,505,000/ E. Lurie, LLC
RESOLUTION NO. BPW 10-16-19-02 A RESOLUTION OF THE BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF CARMEL,INDIANA,REGARDING THE PURCHASE OF REAL PROPERTY AND ACKNOWLEDGING RECEIPT OF CONTRACT WHEREAS, the City of Carmel Board of Public Works and Safety is the entity charged with completing the purchase of the Property pursuant to Indiana Code 36-1-10.5-1 et. seq.; and WHEREAS,upon and subject to the adoption of a resolution(the "Council Resolution") by the Common Council (the "Council") of the City of Carmel, Indiana (the "City") approving the City's purchase of certain property known as Level II (2nd Floor), 30 W Main Street in Cannel, Indiana(the"Property")the BPW will proceed with the purchase of the Property; and WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Cannel, Indiana("City"), is authorized to enter into contracts; and WHEREAS, pursuant to Indiana Code 36-4-5-3, the City's mayor may enter into contracts on behalf of the City; and WHEREAS, pursuant to his authority under Indiana law, the City's mayor, the Honorable James C. Brainard, has caused to be signed the City contract attached hereto as Exhibit A(the"Contract"); and WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works and Safety for it to be publicly acknowledged, filed in the Clerk-Treasurer's Office, and made available to the public for review. NOW, THEREFORE, BE IT RESOLVED by the City of Cannel Board of Public Works and Safety as follows: 1. The foregoing Recitals are incorporated herein by this reference. 2. Upon approval of the purchase of the Property by the Council, and the Council's adoption of the Council Resolution, the BPW shall proceed with the purchase of the Property pursuant to the Council Resolution, this Resolution and Indiana Code 36-1-10.5-5. 3. The receipt of the Contract is hereby acknowledged. 4. The Contract shall be promptly filed in the office of the Clerk-Treasurer and thereafter made available to the public for review. 5. Subject to adoption of the Council Resolution, the BPW hereby designates John Duffy, Director of the Department of Utilities for the City of Carmel, Indiana as its agent to negotiate amendments or revisions to the Contract in accordance with this Resolution, the Council Resolution and otherwise upon reasonable and customary terms, to execute all documents required in connection with the KD_10423692_1.docx purchase of the Property and to take all other lawful actions necessary to complete purchase of the Property as contemplated herein and/or in the Contract. / f� PASSED by e oar of Public Works and Safety of the City of C el, Indiana, this l S day of ©G , 2019, by a vote of 2 ayes and nays. CITY OF CARMEL,INDIANA By and through its Board of Public Works and Safety Ai f— P(cc31, James Brainard, Presiding Officer Date: Lori Watson, ber Date: i q l la l► q 1/ Mary Burke, Me ber Date: ATTE : Ch istine S. Pauley, Cl —Treasurer Date: / //.t //P KD_10423692_1.docx STATE OF INDIANA ) SS: COUNTY OF HAMILTON ) Before me, a Notary Public in and for said County and State, personally appeared Mayor James Brainard, Mary Ann Burke and Lori Watson, by me known to be the Members of the City of Camel Board of Public Works and Safety, and Christine S. Pauley,Clerk-Treasurer of the City of Carmel, who acknowledged the execution of the foregoing "Resolution" on behalf of the City of Cannel, Indiana. Witness my hand and Notarial Seal this day of , 2019. Commission Expiration: Notary Public Signature County of Residence: Notary Public-Printed KD_10423692_1.docx REAL ESTATE PURCHASE AGREEMENT THIS REAL ESTATE PURCHASE AGREEMENT(this"Agreement")is made and entered into as of this day of , 2019 (the "Effective Date"), by and between the City of Carmel, Indiana, by and through its Board of Public Works and Safety, an Indiana municipal corporation ("Purchaser"),and E.Lurie,LLC,an Indiana limited liability company("Seller"). RECITALS A. Seller is the owner in fee simple of the entire second floor("Level II")of a building located at 30 W.Main Street,Cannel,IN 46032(the`Building")located on certain real estate located in Cannel, Hamilton County,Indiana,believed to be owned by the Cannel Arts Building Owners Association,Inc.,an Indiana nonprofit corporation (the "Association"), less Building common areas (the `Building Parcel"). The legal description for Level II is set forth on Exhibit A and the legal description for the Building Parcel is set forth on Exhibit B,both of which are attached hereto and incorporated herein by this reference. B. Purchaser desires to purchase and acquire from Seller,and Seller desires to sell and convey to Purchaser,for the price and upon the terms and conditions set forth in this Agreement,Level II together with: (i)Seller's rights to use the common areas and facilities within the Building as owner of Level II;(ii) all strips,gores,easements,rights-of-way, interest in and to adjacent streets or alleys, hereditaments and appurtenances, and any other rights, benefits and interests in any manner pertaining to, benefiting or affecting Level II;(iii)any and all improvements, fixtures and all of Seller's right,title and interest in all fixtures, furniture, equipment, the signs and other personal property of every kind and character and description owned by Seller located on, under, attached to or used in connection with Level II; and(iv) Seller's rights to use five(5)of the parking spaces to which Seller is specifically entitled as owner of Level I and Level II(the"Parking Spaces"). Level II along with the items identified in sub-recitals B(i)—B(iv) above are collectively referred to as the"Property". C. Purchaser is currently the tenant of Level II pursuant to a Lease Agreement with Seller,as Landlord,dated July 17,2013,as amended(the"Lease"). NOW,THEREFORE,in consideration of the foregoing recitals,the mutual covenants,agreements and representations contained herein,and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties hereto agree as follows: AGREEMENT 1. Purchase and Sale. Seller agrees to sell and convey to Purchaser,and Purchaser agrees to purchase and acquire from Seller, the Property pursuant to the terns and conditions set forth in this Agreement. 2. Purchase Price. The purchase price for the property(the"Purchase Price")shall be One Million Five Hundred Five Thousand and 00/100 Dollars($1,505,000). 3. Payment of Purchase Price. The Purchase Price,plus or minus any adjustments thereto as provided by this Agreement, shall be paid by Purchaser at Closing in cash or other immediately available funds. 4. Conditions. Purchaser's obligations under this Agreement are subject to the satisfaction of the conditions in this Section 4 within thirty(30)days after the Effective Date(the"Satisfaction Date"); provided that Section 4(d) shall be subject to the time periods set forth therein. At any time after the 1 Effective Date, Purchaser and its agents shall have the right to (and Seller hereby grants permission to Purchaser to)enter upon the Property and make all tests and inspections deemed necessary by Purchaser to satisfy Purchaser as to the condition of the Property;provided,however,that neither Purchaser nor its agents shall cause any alteration of the Property without Seller's prior written consent,and Purchaser shall restore any alteration and/or damage to the Property resulting from the entry of Purchaser or its agents. All such tests shall be at Purchaser's cost and expense. Purchaser shall have the one-time right to extend the Satisfaction Date by an additional thirty(30)days by written notice to Seller(the"Extension Notice"). The Satisfaction Date shall then be extended to include such extension period. In the event the following conditions(the"Conditions")are not satisfied by the Satisfaction Date,Purchaser shall have the right,on or before the Satisfaction Date, to give Seller written notice that such conditions have not been satisfied and that Purchaser has elected not to attempt to further resolve or satisfy such condition(s) and that Purchaser will not complete the purchase and sale (a"Termination Notice"), in which case neither party shall have any further obligation hereunder. In the event that Purchaser shall not timely deliver a Termination Notice,Purchaser shall be deemed to have waived any unsatisfied Conditions and elected to proceed to Closing of the purchase and sale. (a) Status of Title and Survey. Purchaser shall have received the Title Commitment and Survey in the condition and as required pursuant to Section 5. (b) Environmental Condition. Purchaser may conduct or have conducted, at Purchaser's cost and expense,any environmental assessments and/or investigations of the Property, including,but not limited to,a Phase I Environmental Site Assessment in compliance with ASTM Standard E-1527-13 ("Environmental Assessment"),to determine that there is no evidence of any contamination of the Property by any hazardous or special wastes, substances, materials, constituents, pollutants or contaminants (as defined by federal, state or local laws, statutes, ordinances,rules or regulations)and that there are no conditions existing on the Property(as of the date of such assessment and/or investigation)that are unacceptable to Purchaser or which may give rise to any future civil,criminal or administrative environmental proceedings or investigations with respect to the Property or Purchaser's use thereof or that require remediation or other curative actions. (c) Financing. Purchaser shall have obtained financing acceptable to Purchaser,in its sole discretion,for its acquisition of the Property, which financing may include but is not limited to Purchaser obtaining: (i)consents and approvals of all applicable municipal bodies;(ii)federal, state or local grants;or(iii)approval for the issuance of bonds. (d) Approvals. Purchaser shall have obtained any and all necessary resolutions, consents or other approvals of all applicable municipal bodies allowing Purchaser's purchase of the Property pursuant to the terms set forth herein. In the event Purchaser has not received such approvals by October 22, 2019 (the "Approval Deadline"), either party may terminate this Agreement upon written notice within five days of the Approval Deadline; provided however, if Purchaser has presented this Agreement to the Common Council and the Common Council has not acted on this Agreement by the Approval Deadline,Purchaser may extend the Approval Deadline until November 19,2019. (e) Litigation and Representations. As of the Closing, no investigation, action or proceeding before a court or other governmental agency or officer will be pending and/or threatened that would impair, in a material manner, the value of the Property, respectively, or Seller's or Purchaser's ability to undertake and/or complete the transaction contemplated by this Agreement or Purchaser's intended use of the Property. As of the Closing, the representations, warranties,and covenants set forth in Section 8 herein will be true and accurate,and the Property 2 will be in the same condition as of the date of Purchaser's inspection and Purchaser may re-inspect to confirm the same. (f) Updates. Purchaser may update the Title Commitment, Survey and any other reports and inspections(the"Updated Reports") prior to Closing. If any of the Updated Reports other than the Title Commitment shows a material change in the condition of the Property (a "Material Change"), Purchaser shall, within five (5) days of its receipt of such report (the "Condition Change Notice Period") notify Seller of the same in writing (a "Condition Change Notice"). It is expressly understood that in no event shall Seller be required to bring any action or institute any proceeding,or to otherwise incur any costs or expenses in order to attempt to eliminate any Material Change. Not later than ten(10)days after receipt of the Condition Change Notice, Seller shall notify Purchaser whether Seller is unable or unwilling to cure any Material Change ("Seller's Change Response"). Purchaser shall then notify Seller of its intention to either terminate this Agreement, or proceed to Closing and accept title to the Property subject to the Material Change,without any abatement of the Purchase Price,or any liability or obligation on the part of Seller by reason of such Material Change. If Purchaser shall fail to notify Seller of its intention to either terminate or close over such Material Change within ten(10)days following Seller's Change Response,then Purchaser shall be deemed to have elected to close the transactions contemplated hereunder, subject to the Material Changes(without any abatement of the Purchase Price, or any liability or obligation on the part of Seller by reason of such Material Changes). If Seller shall elect to cure any Material Change, Seller shall use its reasonable efforts to cure such Material Change prior to Closing; provided,that in the event Seller is unable to cure any Material Change prior to Closing, Purchaser shall have the option to: (i) waive any Material Change and proceed to the Closing; or (ii) terminate this Agreement and neither party shall have any further obligation hereunder. (g) Parking. Purchaser shall determine, in Purchaser's sole discretion, that there is sufficient parking for Purchaser and its employees and invitees at the Property. Purchaser agrees and acknowledges that the Parking Spaces allotted to Purchaser pursuant to this Agreement shall derive from the spaces that Purchaser is entitled to use pursuant to the Lease, and any and all signage designating parking spaces reserved for Seller shall remain as and where located on the Effective Date. 5. Seller's Title and Survey. (a) Within fifteen(15)days of the Effective Date,Purchaser will obtain a commitment for an owner's policy of title insurance(the"Title Commitment")issued by Near North Title Group (the "Title Insurer"), in which the Title Insurer shall agree to insure, for the full amount of the Purchase Price,merchantable title to the Property in the name of Purchaser,free from the Schedule B standard printed exceptions and all other exceptions except any permitted exceptions that have been approved in writing by Purchaser,after delivery of the deed required in Section 12 hereof to Purchaser from Seller. Purchaser and Seller shall share equally any and all costs and expenses related to the title insurance,including all search fees,the premium for the policy,and the closing fee charged by the Title Insurer. Purchaser shall pay all costs for any endorsements issued pursuant to the Title Commitment. Purchaser at Purchaser's expense may obtain a survey of the Property. (b) If(1)the Title Commitment reflects any exceptions to title or the Survey reflects any conditions which are not acceptable to Purchaser in Purchaser's sole discretion,or(2)at any time prior to the Closing,title to the Property is encumbered by any exception to title not acceptable to Purchaser in Purchaser's sole discretion(any such exception or unacceptable state of fact being referred to herein as a"Title Defect"),then Purchaser shall within thirty(30)days following the 3 • Effective Date for Title Defects disclosed by the Title Commitment, or five (5) business days following its receipt of an Updated Report for Title Defects first indicated therein(the"Objection Period") give Seller written notice of the same (an "Objection Notice"). If Purchaser does not deliver an Objection Notice within the Objection Period,Purchaser shall be deemed to have waived its right to object to any liens, encumbrances or other title exceptions appearing on such Title Commitment(and the same shall not constitute Title Defects). Except as set forth in Section 5(b)(i) through(iii)below,it is expressly understood that in no event shall Seller be required to bring any action or institute any proceeding,or to otherwise incur any costs or expenses in order to attempt to eliminate any Title Defect. Not later than ten(10)days after receipt of the Objection Notice, Seller shall notify Purchaser whether Seller is unable or unwilling to cure any of the Title Defects ("Seller's Response Notice"). Purchaser shall then notify Seller of its intention to either terminate this Agreement,or proceed to Closing and accept title to the Property subject to the Title Defects, without any abatement of the Purchase Price,or any liability or obligation on the part of Seller by reason of such Title Defects. In the event Purchaser fails to notify Seller of its intention to either terminate or close over such Title Defects within ten(10)days following Seller's Response Notice, then Purchaser shall be deemed to have elected to close the transactions contemplated hereunder, subject to the Title Defects (without any abatement of the Purchase Price, or any liability or obligation on the part of Seller by reason of such Title Defects). In the event that Seller shall elect to cure any Title Defect,Seller shall use its reasonable efforts to remove such Title Defect or obtain affirmative title insurance coverage insuring and defending against any loss,cost or expense arising out of or related to such Title Defect("Affirmative Coverage"). On or before the Closing, Seller shall provide Purchaser with reasonable evidence of such removal or provide reasonable evidence that such Title Defect will be removed or that such Affirmative Coverage shall be obtained. Notwithstanding anything contained herein to the contrary, Seller shall be obligated to expend whatever sums are required to cure or obtain Affirmative Coverage for the following Title Defects prior to,or at,the Closing: (i) All mortgages, security deeds or other security instruments encumbering the Property; (ii) All past due ad valorem taxes and assessments of any kind, whether or not of record,which constitute,or may constitute,a lien against the Property;and (iii) Judgments against the Seller(which do not result from acts or omissions on part of Purchaser)which have attached to and become a lien against the Property. (c) In the event Seller is unable to cure or obtain Affirmative Coverage for any Title Defect that Seller did not include in Seller's Response Notice,Purchaser shall have the option to: (i)waive any such Title Defect and proceed to the Closing;or(ii)terminate this Agreement upon the earlier to occur of(A)the date that is three(3)business days after Purchaser's receipt of notice of the same from Seller,and(B)the Closing Date. So long as Seller shall exercise commercially reasonable efforts to cure or obtain Affirmative Coverage for any Title Defect that Seller did not include in Seller's Response Notice, Seller's inability to do so shall be deemed a failure of a Condition under Section 4,and not a default under Section 23. (d) If the Title Commitment shows anything other than a Title Defect regarding the ownership of Level II and/or parking that is not consistent with this Agreement, Seller and Purchaser shall work together in good faith to amend this Agreement and/or take reasonably necessary action to resolve such inconsistency so that the transaction contemplated by this Agreement can be consummated on terms mutually agreeable to the parties; provided, that (i) Purchaser shall give notice to Seller of any such condition within fifteen(15)days following the 4 later of(a)its receipt of the Title Commitment,(b)on the Effective Date,and the parties shall have twenty(20)days from the date of such notice(the"Remedy Deadline")to finalize an amendment or otherwise resolve the condition as provided herein, and (ii) if the parties do not amend or otherwise the resolve the condition on or before the Remedy Deadline, then each party shall have the right to terminate this Agreement; provided further, that nothing in this Section 5(d) shall impede,adjust or modify any right of Purchaser set forth in Sections 5(a)—(c)above concerning the Title Commitment and/or any Title Defects. 6. Cooperation and Obligations of Seller. Seller shall provide reasonable cooperation to Purchaser and its representatives and agents in obtaining information about the Property. Throughout the term of this Agreement and prior to the Closing, Seller shall: (a) maintain the Property in substantially the same condition as it is on the Effective Date,including all repairs and replacements necessary to do so; (b) maintain insurance on the Property for the full replacement cost of the Property; (c) pay when due all real estate taxes and assessments applicable to the Property; (d) other than current mortgages (which shall be paid off prior to or at the Closing), not allow any liens,including mechanics liens,to be placed against the Property;and (e) not enter into any agreements affecting the Property. 7. Taxes and Assessments. The parties agree and acknowledge that Level II is statutorily exempt from any and all taxes, including but not limited to real estate taxes,and no proration of any such taxes shall be required at Closing. Further,neither Seller nor Purchaser shall take or permit any action from and after the Effective Date that would cause such exemption to become void. If Seller takes any action that would cause the exemption to become void and the Property assessed,Seller shall be solely responsible for the payment of the taxes for the period beginning on the date such taxes shall begin being assessed and continuing for one (1) year thereafter. Purchaser agrees to promptly take necessary action to have the exemption reinstated upon Purchaser having notice that the exemptions have been voided and will diligently pursue the reinstatement of the exemption. Seller will fully cooperate and assist the Purchaser with respect to the reinstatement of the exemption. Seller shall pay all municipal service and public utility charges through the Closing Date. 8. Further Representations and Warranties of Seller. Seller represents and warrants to Purchaser that both as of the Effective Date and as of the Closing Date: (a) Seller has full power and authority to enter into and consummate the transaction contemplated by this Agreement. This Agreement has been duly executed and delivered by Seller, and constitutes the legal,valid and binding obligation of Seller,enforceable in accordance with its terms, and this Agreement does not violate any other agreement, oral or written,which may exist with respect to the Property. (b) The execution, delivery and performance by Seller of its obligations under this Agreement will not conflict with or result in a breach of, or constitute a default under,any of the provisions of any law, governmental rule, regulations,judgment, decree or order by which the Seller is bound,or by any of the provisions of any contract to which the Seller is bound. 5 (c) Seller has good, indefeasible and marketable fee simple title to the Property, subject to no liens or encumbrances other than permitted exceptions which shall be acceptable to Purchaser in Purchaser's sole discretion. (d) There is no action, suit, litigation or proceeding of any nature, including eminent domain proceedings, pending, or to Seller's knowledge, threatened against or affecting the Property,or any portion thereof,by any third party, in any court or before or by any federal,state, county, or municipal department, commission, board, bureau, agency, or other governmental instrumentality. (e) Seller has not received any written notice and is otherwise not aware of any existing and/or uncorrected violation of any fire, zoning, building, environmental, or health law, ordinance, order, or regulation or any other federal, state, or local law, ordinance, order or regulation affecting the Property. (f) To Seller's knowledge, Seller has not engaged in any activity, nor has it taken or failed to take any action,which has resulted in the violation of any federal, state,or local or other law, statute, rule, regulation, ordinance, requirement or common law duty or obligation that may be reasonably expected to cause a material adverse effect on the Property. (g) At the Closing,there will be no unsatisfied mortgages or security interests against the Property or appearing on the owner's title policy,and there will be no liens or unpaid claims of contractors,materialmen or laborers or any other third-party which could give rise to a lien against the Property. (h) There are no attachments, executions,assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or any other debtor relief laws contemplated by or pending or threatened against Seller or the Property. (i) No assessments have been made against the Property that are unpaid,whether or not they have become liens, and Seller has not received notification of any pending or threatened assessments with respect to the Property or any portion thereof. (j) Seller is not aware of any latent material defects in the structure, heating, ventilating, air conditioning, electrical, plumbing, water, elevator, roofing, storm drainage, and sanitary sewer systems of,at,or servicing the Property. (k) Seller has not disposed of or released Hazardous Substances(defined herein)in or on the Property and Seller has no knowledge of Hazardous Substances being present in or on the Property. Furthermore, Seller has not received any notice of any Hazardous Substances or any violation of Environmental Laws(as defined herein). 9. Survival of Representations, Warranties and Covenants. Each of the obligations, covenants,representations and warranties of the parties hereto set forth in this Agreement shall survive the Closing for one hundred eighty(180)days following the Closing Date and shall not be merged in the deed or other instruments of conveyance. 10. Insurance and Risk of Loss. Insurance on the Property shall be canceled as of the Closing. In the event that,prior to the Closing,all or any portions of the Property,any interests therein,or any rights appurtenant thereto are damaged or destroyed by fire or other casualty or are taken or appropriated(either permanently or for temporary periods) under the power of eminent domain or condemnation by any 6 authority having such power,or by virtue of any actions or proceedings in lieu thereof,or if any notice or threat of such taking or appropriation has been given or is pending at the Closing, then either Seller or Purchaser,at its option,may either(a)cancel this Agreement by written notice to the other,in which event neither party shall have any further obligation hereunder, or (b) elect to proceed with Closing, in which event the Purchase Price shall (i)in the event of fire or other casualty,be reduced by an amount equal to any sums previously paid or then payable to Seller by Seller's insurance carrier,which sums have not been expended by Seller to restore the Property,or(ii)in the event of a condemnation or other taking,be prorated based upon the amount of property taken by the condemning authority by reason of such taking, appropriation or action or proceeding in lieu thereof,and Seller shall transfer and assign to Purchaser at the Closing any and all further claims prorated as described herein, demands, actions and choses in action which may exist by virtue of such taking,appropriation or action or proceeding in lieu thereof. Nothing in this Section 10 of the Agreement shall be construed or interpreted to change, amend or modify the obligations and responsibilities of Seller and Purchaser pursuant to the Lease. 11. Closing. The closing of the purchase and sale of the Property(the"Closing")shall occur at a location selected by both Seller and Purchaser,within fifteen(15)days of the later to occur of(A)the Satisfaction Date and (B) the Approval Deadline, but in no event later than December 20, 2019 (the "Closing Date"), unless Purchaser and Seller shall agree upon an earlier or later date for the Closing. Purchaser shall have the right upon forty-eight (48) hours' prior written notice to Seller to conduct an inspection of the Property no less than ten(10)days prior to the Closing to confirm the Property is in the condition required under this Agreement. 12. Closing Documents. At the Closing, Seller shall execute and deliver to Purchaser the following: (a)a limited warranty deed conveying the Property to Purchaser free and clear of all liens and encumbrances except those that have been approved in writing by Purchaser; (b) an Indiana Sales Disclosure Form;(c)a closing statement;(d)a vendor's or closing affidavit;(e)a certificate of Non-Foreign Status pursuant to section 1445(b)(2) of the Internal Revenue Code; (f) bring-down certificate updating Seller's representations and warranties in Section 8; (g)resolutions of Seller authorizing the sale of the Property and identifying the individual(s)authorized to sign closing and conveyance documents on behalf of Seller;(h)a recordable document memorializing the ROFR as provided for in Section 25;(i)a Restriction Instrument in recordable form as provided for in Section 4(h); (j) an estoppel certificate from the Association and any other applicable owners associations providing that Level II is current with any and all payments and other obligations due to the Association and/or any other applicable owners association and such other terms and conditions as Purchaser may reasonably require;(k)a termination agreement with respect to the Lease;and(m)such other instruments,certificates or affidavits as may be provided herein or as Purchaser or the Title Insurer may reasonably request to effect the intention of the parties hereunder. 13. Possession. Except as otherwise provided in this Agreement, possession of the Property shall be delivered to Purchaser on the Closing Date in substantially the same condition as it is on the Effective Date,free and clear of the claims of any other party,except as disclosed in the title commitment or the deed. 14. Rights and Obligations. The rights and obligations of Seller and Purchaser herein contained shall inure to the benefit of and be binding upon the parties hereto and their respective personal representatives,heirs,successors and assigns. 15. Notices. All notices required or permitted to be given hereunder shall be in writing and delivered in person, or by certified or registered first-class prepaid mail,return receipt requested,or by a nationally-recognized overnight carrier to Seller or Purchaser at their respective addresses set forth below, or at such other address, notice of which may have been given to the other party in accordance with this Section 15. 7 Purchaser: City of Carmel Attention: Utilities Director 30 West Main Street Carmel,IN 46032 With a copy to: City of Carmel Attention: Corporation Counsel 30 West Main Street Carmel,IN 46032 With a copy to: Tammy K.Haney,Esq. Krieg DeVault LLP 12800 N.Meridian Street,Suite 300 Carmel,IN 46032 Seller: E.Lurie,LLC Attention: Evan Lurie 1 Civic Square Carmel,IN 46032 With a copy to: Steven J.Glazier,Esq. Cohen Garelick&Glazier,P.C. 8888 Keystone Crossing Blvd.,Suite 800 Indianapolis,Indiana 46240 Any notice given in accordance with this Section 15 shall be deemed to have been duly given or delivered on the date the same is personally delivered to the recipient or received by the recipient as evidenced by the return receipt or signature acceptance. 16. Complete Agreement. This Agreement represents the entire agreement between Seller and Purchaser covering everything agreed upon or understood in this transaction. There are no oral promises, conditions, representations, understandings, interpretations or terms of any kind as conditions or inducements to the execution hereof or in effect between the parties. No change or addition shall be made to this Agreement except by a written agreement executed by Seller and Purchaser. 17. Authorized Signatories. The persons executing this Agreement for and on behalf of Purchaser and Seller each represent that they have the requisite authority to bind the entities on whose behalf they are signing. 18. Partial Invalidity. If any term,covenant or condition of this Agreement is held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provision hereof,and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. 19. Use of Brokers. Each party represents and warrants that it has not dealt with any broker, finder or other person with respect to this Agreement or the transactions contemplated hereby. Seller and Purchaser each agree to indemnify and hold harmless one another against any loss,liability,damage,cost, expense or claim incurred by reason of any brokerage commission or finder's fee alleged to be payable because of any act, omission or statement of the indemnifying party. Such indemnity obligation shall be 8 deemed to include the payment of reasonable attorneys'fees and court costs incurred in defending any such claim. 20. Governing Law;Construction. (a) This Agreement shall be interpreted and enforced according to the laws of the State of Indiana. (b) All headings and sections of this Agreement are inserted for convenience only and do not form part of this Agreement or limit,expand or otherwise alter the meaning of any provisions hereof. (c) This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same agreement. (d) The provisions of this Agreement are intended to be for the sole benefit of the parties hereto and their respective successors and assigns, and none of the provisions of this Agreement are intended to be,nor shall they be construed to be,for the benefit of any third party. 21. Appraisals. Purchaser, at Purchaser's expense, has obtained appraisals of the fair market value of the Property pursuant to Indiana Code § 36-1-10.5-5. 22. Default by Purchaser or Seller. (a) In the event of Purchaser's failure to perform any of its obligations hereunder, Seller shall notify Purchaser, in writing,of such default. If Purchaser is unable to cure such default within fifteen (15) days after receiving such written notice (the "Cure Period"), then Seller shall be entitled to terminate this Agreement within fifteen (15) days after the expiration of the Cure Period by notifying Purchaser in writing and Seller shall seek any and all remedies available to Seller at law or in equity. (b) In the event Seller's failure to perform any of its obligations hereunder,Purchaser shall notify Seller,in writing,of such default. If Seller is unable to cure such default within the Cure Period, then Purchaser shall be entitled to terminate this Agreement within fifteen(15)days after the expiration of the Cure Period by notifying Seller in writing and Purchaser shall seek any and all remedies available to Purchaser at law or in equity. 23. Property Conveyed"As-Is",Disclaimer of Representations and Warranties. (a) Purchaser expressly acknowledges that, except as expressly set forth in Section 8 above,neither Seller,nor any person acting on behalf of Seller,nor any direct or indirect officer,director, partner, shareholder, employee, agent, representative, accountant, advisor, attorney, principal, affiliate, consultant,contractor,successor or assign of any of the foregoing parties(Seller,and all of the other parties described in the preceding portions of this sentence (other than Purchaser) shall be referred to herein collectively as the"Exculpated Parties")has made,and is not now making,and Seller specifically disclaims, any warranties, representations or guaranties of any kind or character,express or implied, oral or written, past,present or future, with respect to(i) the Property, (ii)the value, financial condition of,the revenues and expenses generated by, or associated with, the Property or otherwise relating to the Property, (iii) matters of title and the affects thereof,(iv) environmental matters relating to the Property or any portion thereof, (v) the size, location, age, use, design, quality, description, suitability, structural integrity, operation,or physical condition of the Property or any portion thereof,(vi)any liens,encumbrances,rights or claims on or affecting or pertaining to the Property or any part thereof, (vii) the compliance of the 9 Property with Environmental Laws (defined below), or the presence of Hazardous Substances (defined below) in or on, under or in the vicinity of the Property, (viii)the condition or use of the Property or its compliance with any or all past, present or future federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances,codes or other similar laws, regulations and rules applicable to the Property, or the compliance by the Property therewith, (ix)any other matter affecting the stability or integrity of the Property,(x)the existence of vested land use,zoning or building entitlements affecting the Property, (xi) the merchantability of the Property or fitness of the Property for any particular purpose (Purchaser affirming that Purchaser has not relied on Seller's skill or judgment to select or furnish the Property for any particular purpose, and that Seller makes no warranty that the Property is fit for any particular purpose),(xii)tax consequences,or(xiii)the transactions contemplated by this Agreement. (b) Purchaser hereby acknowledges that, except for the representations expressly set forth in Section 8 above,Purchaser has not relied upon,and will not rely upon,either directly or indirectly, any information, representation or warranty of Seller or any of the other Exculpated Parties. Purchaser represents that it is a knowledgeable, experienced and sophisticated purchaser of real estate, and that it is relying solely on its own expertise and that of Purchaser's consultants in purchasing the Property. Purchaser shall rely solely on its own independent investigation and inspection of the Property,and shall conduct such inspections and investigations of the Property as Purchaser deems necessary.Upon Closing,Purchaser shall assume the risk that adverse matters, including but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser's inspections and investigations. Purchaser acknowledges and agrees that upon Closing, Seller shall sell and convey to Purchaser and Purchaser shall accept the Property"as is,where is",with all faults. Purchaser further acknowledges and agrees that there are no oral agreements,warranties or representations(except as expressly set forth in Section 8),collateral to or affecting the Property by Seller or any of the other Exculpated Parties. Purchaser acknowledges that Seller is not liable or bound in any manner by any oral or written statements,representations,or information pertaining to the Property furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Purchaser acknowledges that the Purchase Price reflects the"as is"nature of this sale and any faults,liabilities, defects or other adverse matters that may be associated with the Property. Purchaser has fully reviewed the disclaimers and waivers set forth in this Agreement with its counsel and understands the significance and effect thereof. (c) "Hazardous Substances" shall mean any hazardous, toxic or dangerous waste, substance or material,pollutant or contaminant,as defined for purposes of the CERCLA(defined below), or the RCRA (defined below), or any other federal, state or local law, ordinance, rule or regulation applicable to the Property, or any substance which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous, or any substance which contains gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated biphenyls (pcbs), radon gas, urea formaldehyde,asbestos,lead,or electromagnetic waves. (d) The provisions of this Section 24 shall survive the Closing or any termination of this Agreement. 24. Lease. Purchaser and Seller hereby agree that until such time the transaction contemplated by this Agreement is consummated and closed that the Lease remains in full force and effect and nothing in this Agreement shall be construed or interpreted in any way to change, amend or modify the Lease. Furthermore, Purchaser and Seller hereby agree that if this Agreement is terminated or the transaction contemplated hereby does not close for any reason,the Lease shall remain in full force and effect. 25. Right of First Refusal. 10 (a) Seller shall notify Purchaser in writing of Seller's receipt of any offer to purchase the First Floor that Seller is willing to accept from a bona fide third-party offeror("Bona Fide Offer"),and setting forth the material terms of the Bona Fide Offer("Seller's Notice"). Purchaser,through its executive, shall have fifteen(15)days after receipt of a Seller's Notice to provide written notice to Seller of its election to purchase the First Floor (the "ROFR"), upon the terms set forth in the Bona Fide Offer, subject to limitation as set forth this Article 25 (the "Notice of ROFR"). The parties agree and acknowledge that Purchaser's purchase of the First Floor is subject to all applicable laws,including but not limited to,Indiana Code § 36-1-10.5 and specifically the appraisal requirements of Indiana Code § 36-1-10.5-5. Thus, Purchaser shall have thirty (30) days following Purchaser's timely delivery of the Notice of ROFR to conduct or cause to be conducted all necessary appraisals and deliver written notice to Seller confirming that,subject to the conditions set forth in Section 25(b),Purchaser will purchase the First Floor for the price set forth in the Bona Fide Offer(the"Price Confirmation"). (b) Seller and Purchaser shall endeavor in good faith to enter into a purchase agreement reflecting the terms of the Bona Fide Offer and such other terms as Purchaser is subject to under applicable law(the"Definitive Purchase Agreement")within fifteen(15)days following Purchaser's timely delivery of the Notice of ROFR. All procedures and due diligence in the Definitive Purchase Agreement shall occur as set out in the Bona Fide Offer provided that,notwithstanding anything to the contrary in the Bona Fide Offer,the Definitive Purchase Agreement shall provide that Purchaser shall have sixty(60)days following Purchaser's timely delivery of the Notice of ROFR to obtain all necessary approvals related to the purchase of the First Floor and satisfy all conditions of applicable law. (c) In the event that Purchaser shall timely deliver a Notice of ROFR,but the closing of the purchase and sale of the First Floor(the"ROFR Closing") fails to occur on or before the required date of such ROFR Closing (other than as a result of Seller's delay or default, or reasons outside of Purchaser's control)then this ROFR shall terminate and all rights to exercise this ROFR in the future shall be null and void. (d) If Purchaser fails or elects not to give the Notice of ROFR within said fifteen(15) day period,or if Purchaser timely delivers such notice but(i)the Price Confirmation is not delivered within the time specified in Section 25(a),or(ii)the parties do not enter a Definitive Purchase Agreement within the time specified in Section 25(b),then Seller may proceed to sell the First Floor consistent with the terms set forth in the Seller's Notice and the Bona Fide Offer in all material respects (Seller and Purchaser acknowledging that a price reduction of less than five percent(5%)is deemed immaterial). In the event Seller does not sell the First Floor as set forth in Seller's Notice and the Bona Fide Offer,the ROFR shall continue. (e) Each of the parties hereto agrees to cooperate with the other in effecting an I.R.C. § 1031 exchange, including executing and delivering any and all documents required by the exchange trustee or intermediary;provided,however,that the cooperating party shall have no obligation to execute any document, enter any transaction or arrangement or take or omit any other action, if such party determines in its sole discretion that the same would result in any liability, cost, expense, increased risk, delay or other detriment to the cooperating party. (f) An agreement evidencing Purchaser's ROFR shall be executed and recorded as part of the Closing. [SIGNATURE PAGE FOLLOWS] 11 IN WITNESS WHEREOF,the parties hereto have executed this Real Estate Purchase Agreement as of the Effective Date. PURCHASER SELLER: CITY OF CARMEL,INDIANA E.LURIE,LLC, an Indiana limited liability company By and through its Board of Public Works and Safety By: By4000.00 es Brainnar ,Pre$din Officer "te ate: Printed: Evan Lurie Title: Member Mary Ann Burke,Member Date: By: Printed: Jennifer Campbell Lori S.Watson,Member Date: Title: Member ATTEST: Christine S.Pauley,Clerk-Treasurer Date: KD_10204419.8 12 IN WITNESS WHEREOF,the parties hereto have executed this Real Estate Purchase Agreement as of the Effective Date. PURCHASER SELLER: CITY OF CARMEL,INDIANA E.LURIE,LLC, an Indiana limited liability company By and through its Board of Public Works and Safety By: By: James Brainard,Presiding Officer Date: Printed: Evan Lurie Title: Member Mary Ann Burke,Member Date: • Printed: Jennifer Campbell Lori S.Watson,Member Date: Title: Member ATTEST: Christine S.Pauley,Clerk-Treasurer Date: KD_10204419.8 12 EXHIBIT A LEVEL II LEGAL DESCRIPTION (Second Floor) A part of the Northeast Quarter of Section 25,Township 18 North,Range 3 East of the Second Principal Meridian, Clay Township, Hamilton County, Indiana and also being part of Lot Numbered One(1)and part of the north-south ten-foot-wide un-platted alley lying easterly of Lot Number One (1), all in Simeon Hawkin's Addition to Bethlehem (now the City of Carmel) as recorded in Deed Book 30,page 441 in the Office of the Recorder of Hamilton County,Indiana, being further defined from elevation 842.56 (second floor) to 855.36 ( bottom of slab - third floor)(NGVD 1929)and below,more particularly described as follows: Commencing at the southeastern corner of said Lot Number One(1);thence North 89 degrees 08 minutes 43 seconds East(Basis of Bearings assuming the East Line of the Northeast Quarter of said Section 25,Township 18 North,Range 3 East to be North 00 degrees 00 minutes 00 seconds East) 1.08 feet along the northern right-of-way line of West Main Street to the southerly extension of the upper levels of the eastern line of an existing four-story brick building; thence North 00 degrees 09 minutes 23 seconds East 0.39 feet along said southerly extension to the southeastern corner of the upper levels of said building to the POINT OF BEGINNING of this description (all of the following courses arc along the face of said building); thence North 89 degrees 50 minutes 37 seconds West 14.67 feet;thence North 00 degrees 09 minutes 23 seconds East 2.67 feet;thence North 89 degrees 50 minutes 37 seconds West 29.33 feet;thence South 00 degrees 09 minutes 23 seconds West 2.67 feet; thence North 89 degrees 50 minutes 37 seconds West 14.67 feet;thence North 00 degrees 09 minutes 23 seconds East 126.83 feet;thence South 89 degrees 50 minutes 37 seconds East 58.67 feet; thence South 00 degrees 09 minutes 23 seconds West 126.83 feet to the POINT OF BEGINNING,containing 7,362.7 square feet(0.169 acres)more or less. • A-1 EXHIBIT B BUILDING PARCEL LEGAL DESCRIPTION A part of the Northeast Quarter of Section 25, Township 18 North, Range 3 East of the Second Principal Meridian, Clay Township, Hamilton County, Indiana and also being part of Lot Numbered One (1) and the western 2.50 feet,by parallel lines, off of the north-south ten-foot-wide un-platted alley lying easterly of Lot Number One (1), all in Simeon Hawkin's Addition to Bethlehem (now the City of Carmel) as recorded in Deed Book 30, page 441 in the Office of the Recorder of Hamilton County, Indiana, more particularly described as follows: BEGINNING at the southeastern corner of said Lot Number One (1); thence South 89 degrees 08 minutes 43 seconds West (Basis of Bearings assuming the East Line of the Northeast Quarter of said Section 25, Township 18 North, Range 3 East to be North 00 degrees 00 minutes 00 seconds East) 62.15 feet (62.50 feet— Deed) along the southern line of said Lot One and the northern right-of-way line of West Main Street to the southwestern corner of the 0.19-acre tract of land granted to the City of Carmel Redevelopment Commission ("Redevelopment tract") (recorded as Instrument Number 200500053146 and corrected by Instrument Number 20070006142 in the Office of the Recorder of Hamilton County, Indiana); thence North 00 degrees 02 minutes 47 seconds West 131.18 feet (131.17 feet—Deed, 132 feet - Plat) along the western line of said Redevelopment tract to the northwestern corner thereof and lying on the southern right- of-way line of a ten-foot-wide east-west alley; thence North 89 degrees 12 minutes 04 seconds East 64.67 feet along the northern line of said Redevelopment tract and said southern right-of-way line and the easterly extension thereof to a point lying 2.50 feet (measured easterly in a perpendicular direction) from the eastern line of said Lot One; thence South 00 degrees 01 minutes 47 seconds East 131.12 feet (132 feet—plat) parallel with said eastern line to the northern right-of-way line of West Main Street; thence South 89 degrees 08 minutes 43 seconds West 2.50 feet along said northern right-of-way line to the POINT OF BEGINNING, containing 0.195 acres, (8,479.2 square feet) more or less. A-1