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HomeMy WebLinkAboutBPW-12-20-06-13 Ratifying Mayoral Signature/AT&T RESOLUTION NO. BPW-12-20-06-13 RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY RATIFYING MAYORAL SIGNATURE OF AGREEMENT FOR PURCHASE OF PROPERTY FROM AT&T WHEREAS, the executive officer of a municipality has the right and authority under Indiana law to enter into contracts on behalfofthe municipal corporation; and WHEREAS, due to the exigencies of time, City of Carmel Mayor James Brainard, upon the advice of the Carmel City Attorney, executed that certain Property Acquisition Agreement ("Agreement"), attached hereto and incorporated herein as Exhibit A; and WHEREAS, the City of Carmel Board of Public Works and Safety now desires to ratify the above actions of Mayor Brainard and to adopt the same as the act of the Board. NOW, THEREFORE, BE IT RESOLVED by the Board of Public Works and Safety of the City of Carmel, Indiana, that: 1. The foregoing Recitals are fully incorporated herein by this reference. 2. The actions of Mayor James Brainard in executing the Agreement are hereby ratified and such actions are hereby approved and adopted by the Board as its own. SO RESOLVED by the Board of Public Works and Safety of the City of Carmel, Indiana, this...:o dayof :D~ b~. ',2006. J es Brainard, Presiding Officer Date: Lori S. Date: 'ember { 1~~D O~ I , Clerk-Treasurer [cb:lTIilwOTd;z:~ba5S'J1l}' ~lS'~w.resollltions\2006'm3Yor sign an agm.doc:121ISiOb] AGREEMENT OF PURCHASE AND SALE A Portion of the Property Commonly Known As 210 3rd Avenue SW, Carmel, Indiana 46032 By and Between INDIANA BELL TELEPHONE COMPANY INCORPORATED, an Indiana corporation, d/b/a AT&T Indiana Seller and CITY OF CARMEL, INDIANA, a municipal corporation One Civic Square Carmel, Indiana 46032 Purchaser DATED: As of , 2006 AD966105.DOC 11120106 AGREEMENT OF PURCHASE AND SALE OFA PORTION OF THE PROPERTY COMMONLY KNOWN AS 210 3RD AVENUE SW, CARMEL, INDIANA 46032 THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made and entered into as of the day of ,2006 by and between Indiana Bell Telephone Company Incorporated, an Indiana corporation d/b/a AT&T Indiana ("Seller"), having an address of225 W. Randolph, Floor 13, Chicago, l11inois 60606, Attention: Joseph D. Buckman; facsimile number (3 I 2) 814-7361, and the City of Carmel, Indiana, a municipal corporation ("Purchaser"), having an address of One Civic Square, Carmel, Indiana 46032; Attention: ; facsimile number ( ) RECITALS Seller is the owner of that certain 5.5 acre parcel of real estate, commonly known as 210 300 Avenue, Carmel, Indiana 46032 ("Seller's Parcel"). Purchaser desires to purchase a portion of Seller's Parcel containing approximately 1.197 acres, legally described at Exhibit A, attached hereto (the "Property"). Subject to and upon the terms and provisions of and for the considerations set forth in this Agreement, Seller has agreed to sell, and Purchaser has agreed to buy, the Property. NOW, THEREFORE, the parties hereto hereby agree as follows: I. Definitions. As used in this Agreement, the following terms have the following meanings: Cash Balance. As defined in Section 2.2(b ). Closing. The payment of the Purchase Price by Purchaser to Seller in exchange for delivery and recordation of the Deed (as defined at Section 7.2(a)(i)). Closing Date. Forty-five (45) days following the Effective Date hereof. Effective Date. The date of Seller's execution of this Agreement. Escrowee. Chicago Title & Trust Company. Hazardous Materials. As defined in Section 9.6. Indemnified Parties. As defined in Section 3.6. Prooertv. As defined in the Recitals. Proration Date. As defined in Section 8. Surviving Obligations. As defined in Section 3.10. AD966105.DOC 11120/06 Title Commitment. As defined in Section 4. Title Comoanv. Intentionally omitted. 2. Purchase and Sale: Purchase Price. 2.1 Purchase and Sale. Subject to the terms and provisions hereof, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller the Property. 2.2 Purchase Price. The total purchase price (hereinafter called the "Purchase Price") to be paid by Purchaser to Seller for the Property shall be Four Hundred Seven Thousand Six Hundred Fourteen Dollars ($407,614.00). The Purchase Price shall be payable in the following manner: (a) Intentionally omitted. (b) Cash Balance. Purchaser shall pay the full Purchase Price, subject to the prorations described in Section 8 below, in cash (the "Cash Balance") by check or by wire transfer of immediately available United States of America funds in accordance with the terms and conditions of this Agreement, so that Seller shall receive such payment in its designated account no later than 3 :00 p.m. (Chicago time) on the Closing Date. 3. Intentionally omitted. 3.1 .fu!!!y. Purchaser shall have a right to enter upon the Property for purposes of construction staging and the performance of certain Work (as defined in the Right of Access and Construction Staging Agreement, attached hereto at Exhibit C, and incorporated herein (the "Work Agreement")), provided that in each such instance (i) Purchaser notifies Seller ofits intent to enter the Property to conduct its Work not less than two (2) business days prior to such entry; (ii) the date and approximate time period are scheduled with Seller; (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.6 hereof; and (iv) all entries upon the Property and the conduct of the Work by Purchaser and its representatives shall be made and performed in accordance with all laws, ordinances, rules and regulations and in a manner calculated to minimize damage therefrom to the Property and any improvements. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property. Purchaser shall take all necessary actions to ensure that neither it nor any of its representatives interfere with any ongoing operations of Seller occurring on Seller's Parcel. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against Seller's Parcel as a result of Purchaser's Work. If Purchaser fails to satisfy and discharge any affidavit or claim of lien and restore any damage to the Property within thirty (30) days after Seller demands that Purchaser do so, Seller may do so, and all sums expended by Seller in so doing (including, without limitation, attorneys' fees, attorneys' disbursements and court costs), shall be due and payable to Seller by Purchaser upon demand. Purchaser's failure to abide by the terms of this Section 3.1 shall entitle Seller to terminate this Agreement as well as the Work Agreement and Purchaser shall, in addition to the other sums due to satisfy and discharge any affidavit, claim of lien or restoration of the Property, immediately pay to Seller the sum of Forty-one Thousand Dollars ($41 ,000.00) in cash, as liquidated damages, without releasing Purchaser from its obligations hereunder. Purchaser shall remain liable for any deficiency remaining toward the costs of such satisfaction or discharge of such affidavit or lien and/or the restoration of the Property. The terms and provisions of this paragraph shall survive Closing or any earlier termination of this Agreement. 3.2 AD966105.DOC 11/20/06 Intentionally omitted. 2 3.3 Intentionally omitted. 3.4 Intentionally omitted. 3.5 Confidentialitv. Prior to Closing, Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein, whom Purchaser shall cause to keep such information confidential) without Seller's prior written consent, unless Purchaser is obligated by law to make such disclosure, as set forth in Section 3.3. any information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated for any reason, Purchaser agrees that all such information will continue to be held in strict confidence. 3.6 Indemnitv. Purchaser agrees to indemniry, protect, defend and hold Seller and its employees, officers, directors, shareholders, subsidiaries, affiliates, parent, advisors and other agents and their respective employees, officers, directors, shareholders, subsidiaries, affiliates, parent, advisors and other agents (collectively, the "Indemnified Parties") harmless from and against any and all liabilities, demands, actions, causes of action, suits, claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees, court costs and litigation expenses) suffered or incurred by any of the Indemnified Parties as a result of or in connection with any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, or injury to persons or property resulting from such activities in connection therewith. In the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. Furthermore, Purchaser agrees to maintain and cause any of its representatives or agents conducting any Work to maintain and have in effect commercial general liability insurance with (i) limits of not less than One Million and 0011 00 Dollars ($1 ,000,000.00) for personal injury, including bodily injury and death, and property damage, (ii) Indiana Bell Telephone Company Incorporated d/b/a AT&T Indiana shall be named as an additional insured party and (iii) waiver of subrogation. Purchaser shall deliver to Seller a copy ofthe certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller. 3.7 Intentionally omitted. 3.8 Intentionally omitted. 3.9 Intentionally omitted. 3.10 Survival. The obligations set forth in Sections 3.1. 3.5. 3.6.10 and 21.16, and such other provisions in this Agreement designated as surviving, shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations"). 4. Title. Seller, at Purchaser's sole cost and expense and within fifteen (15) business days from the Effective Date hereof, shall obtain and deliver to Purchaser for Purchaser's review, a commitment for an owner's policy of title insurance (the "Title Commitment") on the Property and a commitment for an owner's policy of title insurance on Seller's Parcel, subtracting the Property therefrom ("Seller's Commitment"). All exceptions, general and specific, and exclusions shown in the Title Commitment, and all matters caused by, AD966105.DOC 3 11120106 through or under Purchaser, shall constitute and shall be included in the term "Permitted Exceptions" as used herein, subject to the last sentence of this Section 4. Purchaser may, prior to Closing, obtain an updated Title Commitment in order to satis!)> itselfthat the Property remains unencumbered by any exceptions to title other than the Permitted Exceptions. If, prior to Closing, the updated Title Commitment shows title to the Property is encumbered by matters other than Permitted Exceptions ("Unpermitted Exceptions"), Seller shall have thirty (30) days from the Closing Date in which to cause the Unpermitted Exceptions to be deleted therefrom or endorsed over (if Purchaser elects to obtain a title insurance policy therefore) and, at Seller's election, the Closing may be adjourned until the last day of said thirty (30) day period or any earlier date scheduled by Seller upon not less than ten (10) days prior notice from Seller to Purchaser stating that the Seller has caused the Unpermitted Exceptions to be deleted therefrom or endorsed over. If Seller fails to cause the Unpermitted Exceptions to be deleted or endorsed over within thirty (30) days, Purchaser's sole remedy, subject to any rights Purchaser may have under Section 20.2, shall be to elect to (A) terminate this Agreement, in which event neither party shall have any further rights, obligations or liabilities hereunder, except the Surviving Obligations, or (8) accept conveyance oftitle subject to the Unpermitted Exceptions and proceed with the Closing, in which event Purchaser shall accept Seller's Deed (identified at Section 7.2(c) hereof) to the Property subject to the Unpermitted Exceptions. If Purchaser shall fail to so make such election by notice served upon Seller within seven (7) days after the expiration of said thirty (30) day period, Purchaser shall be deemed to have elected the alternative in (8) above. 5. Survev. Purchaser shall obtain and deliver to Seller for its review, within twenty (20) business days from the Effective Date hereof, an AL T A survey and corrected legal description for Seller's Parcel which does not include the Property ("Seller's Survey") and an AL T A survey for the Property ("Purchaser's Survey"). The cost of Seller's Survey and Purchaser's Survey shall be borne solely by Purchaser. Purchaser shall have five (5) days from the date of its receipt of Purchaser's Survey to satis!)> itself with all matters set forth on Purchaser's Survey ("Survey Review Period"). If, during the Survey Review Period, Purchaser determines that it is unsatisfied with any matters shown on the Purchaser's Survey, Purchaser's sole remedy, subject to any rights Purchaser may have under Section 20.2, shall be to elect to (A) terminate this Agreement, in which event neither party shall have any further rights, obligations or liabilities hereunder, except the Surviving Obligations, or (8) accept conveyance of title subject to the matters shown on the Purchaser's Survey and proceed with the Closing, in which event Purchaser shall accept Seller's Deed to the Property subject to such matters. If Purchaser shall fail to so make such election by notice served in writing upon Seller on or before expiration of the Survey Review Period, Purchaser shall be deemed to have elected the alternative in (8) above. 6. Conditions Precedent. 6.1 precedent: Purchaser. Purchaser's obligation to close hereunder is subject to the following conditions (a) The covenants and agreements of Seller hereunder shall have been timely performed (including without limitation the delivery of Seller's Deed and performance of all other obligations which Seller would be required to perform at Closing if Purchaser is prepared to fulfill its Closing obligations). (b) The representations and warranties of Seller herein which, in the aggregate, are material to Purchaser, shall be true and correct. If any one or more of the conditions precedent contained in Sections 6.l(a) and (b) are not timely satisfied, then Purchaser's sole remedy, subject to any rights Purchaser may have under Section 20.2, shall be to elect to (i) terminate this Agreement, and thereupon (except for the Surviving Obligations), neither party AD966IOS.DOC 4 11120106 shall have any further rights, obligations or liabilities hereunder, or (ii) waive the satisfaction of such unsatisfied conditions and, without objection to such unsatisfied conditions, close the purchase and sale contemplated hereby. Failure to exercise (i) or (ii) above by serving notice thereof upon Seller, ~ to any condition precedent set forth above, on or before the earlier of (x) ten (10) days after Seller notifies Purchaser that it will be unable to satisfy said condition precedent or any earlier date that Purchaser first becomes aware ofthe failure to satisfy said condition precedent or (y) the Closing Date, shall be deemed an election to exercise the alternative in (ii) above. 6.2 precedent: Seller. Seller's obligation to close hereunder is subject to the following conditions (a) The covenants and agreements of Purchaser hereunder shall have been timely performed (including without limitation payment of the Purchase Price and performance of all other obligations which Purchaser would be required to perform at Closing if Seller is prepared to fulfill its Closing obligations). (b) The representations and warranties of Purchaser herein which in the aggregate are material to Seller, shall be true and correct in all material respects. If any one or more of the conditions precedent contained in Sections 6.2!a) and !b) are not timely satisfied, then subject to Seller's rights under Section 20.1, Seller's sole remedy shall be to terminate this Agreement, in which event Purchaser shall immediately pay to Seller the sum of FortY-one Thousand Dollars ($41,000.00) in cash, as liquidated damages, in lieu of any other damages or remedies, and thereafter (except for the Surviving Obligations), neither party shall have any further rights, obligations or liabilities hereunder. 6.3 Intentionally omitted. 6.4 Seller Termination for Cause. Seller shall be permitted to terminate this Agreement for cause, absent the failure of a condition precedent described in Section 6.2. The term "for cause" is defined as a cash expenditure required to be made by Seller as a result of or in connection with conveyance of the PropertY to Purchaser which exceeds $5,000.00 ("Qualifying Expense"). In the event Seller discovers, during the pendency of this Agreement that a QualifYing Expense will be required, Seller shall notify Purchaser thereof and Purchaser shall have five (5) business days thereafter to determine whether it will bear the cost of the Qualifying Expense and Purchaser shall so notify Seller thereof within such five (5) business day period. Failure to so notifY Seller shall be deemed an election by Purchaser not to bear the Qualifying Expense. In the event that Purchaser either timely elects not to bear the Qualifying Expense or fails to timely notify Seller ofits election, Seller shall have a period of five (5) business days thereafter to elect to terminate this Agreement upon notice to Purchaser within such time. In such event, except for the Surviving Obligations, this Agreement shall be deemed terminated and neither party shall have any rights, obligations or liabilities hereunder. 7. Closing: Conditions: Deliveries. 7.1 Closing. Purchaser shall, on the Closing Date and in accordance with the closing statement prepared by Seller consistent with the terms of this Agreement, showing all credits and prorations due each partY (the "Closing Statement"), deposit the Purchase Price as Seller so directs. Except as provided in Section 21.16 herein, possession of the PropertY shall be delivered to Purchaser on the Closing Date. AD96610S.DOC 11/20/06 5 7.2 Deliveries. Upon payment by Purchaser and receipt by Seller ofthe Purchase Price (plus or minus prorations as specified in this Agreement), as well as proof that said funds are valid: (a) Seller shall deliver to the Hamilton County, Indiana recorder of deeds: (i) a quit claim deed (the "Deed") to the Property in recordable form, duly executed by Seller and acknowledged; (ii) intentionally omitted; (iii) intentionally omitted; and (iv) a Vendor's Affidavit, as required by the State ofIndiana. (b) Intentionally omitted. (c) Seller shall prepare, execute and forward to Purchaser for its execution: (i) the Closing Statement; and (ii) all transfer declarations or similar documentation required by law. 8. Prorations. A II items of income and expense shall be paid, prorated or adjusted as of the close of business on the day prior to the Closing Date (the "Proration Date") in the manner hereinafter set forth: 8.1 Intentionally Omitted. 8.2 Real Estate Taxes. Real estate taxes shall be prorated between Seller and Purchaser based upon the actual days of ownership ofthe parties for the year in which Closing occurs utilizing the most recent ascertainable tax bill(s). Seller reserves the right to attempt to obtain a refund for any taxes previously paid an'd Seller shall retain all rights with respect to any refund oftaxes applicable to any period prior to the Closing Date. All real estate tax prorations are final. 8.3 Intentionally omitted. 8.4 Intentionally omitted. Any other items which are customarily prorated in transactions similar to the transaction contemplated hereby and which were not heretofore dealt with, will be prorated as ofthe Proration Date. All prorations shall be final and shall not be readjusted after Closing. Purchaser shall indemnifY and hold Seller harmless from and against any and all liabilities, losses, damages, claims and costs (including reasonable attorney fees, court costs and litigation expenses) for which Purchaser received credits pursuant to this Section 8. The indemnity set forth in the immediately preceding sentence and the covenants contained in this Section 8 shall survive Closing. 9. Seller's Representations. Warranties and Covenants. Seller hereby represents, warrants and covenants as follows: 9.1 Power. Seller has the legal power, right and authority to enter into this Agreement and the instruments referenced herein and to consummate the transactions contemplated hereby. AD966105.DOC 6 11120/06 9.2 Reauisite Action. All requisite action (corporate, trust, partnership or otherwise) has been taken by Seller in connection with entering into this Agreement and the instruments referenced herein and the consummation of the transactions contemplated hereby. No consent of any partner, shareholder, member, creditor, investor, judicial or administrative body, authority or other party is required which has not been obtained to permit Seller to enter into this Agreement and consummate the transaction contemplated hereby. 9.3 Authoritv. The individuals executing this Agreement and the instruments referenced herein on behalf of Seller have the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. 9.4 Validitv. This Agreement and all documents required hereby to be executed by Seller are and shall be valid, legally binding obligations of and enforceable against Seller in accordance with their terms. 9.5 Conflicts. None of the execution and delivery of this Agreement and documents referenced herein, the incurrence of the obligations set forth herein, the consummation of the transactions herein contemplated or referenced herein conflicts with or results in the material breach of any terms, conditions or provisions of or constitutes a default under, any bond, note, or other evidence of indebtedness or any contract, lease or other agreements or instruments to which Seller is a party. 9.6 Environmental Condition. To its knowledge, Seller has received no written notice of any violation of Environmental Laws related to the Property or the presence or release (other than as permitted by law) of Hazardous Materials on or from the Property except as may be disclosed in the environmental reports, studies and other information relating to the environmental condition ofthe Property delivered by Seller to Purchaser or made available for Purchaser's review. The term "Environmental Laws" means the Resource Conservation and Recovery Act and the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") and other federal laws governing the environment as in effect on the date of this Agreement together with their implementing regulations and guidelines as of the date of this Agreement, and all state, regional, county, municipal and other local laws, regulations and ordinances that are equivalent or similar to the federal laws recited above or that purport to regulate Hazardous Materials in effect as of the date ofthis Agreement. "Hazardous Materials" means any substance which is (i) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, as currently in effect as of the date of this Agreement, (ii) petroleum hydrocarbon, including crude oil or. any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) friable asbestos, (vi) flammable explosives, (vii) infectious materials, or (viii) radioactive materials. Subject to the express provisions of Section 10 of this Agreement, Seller shall furnish Purchaser with environmental reports and studies, if any, that it may find in its files. 9.7 Knowledge. As used in this Section 9, the term "to Seller's knowledge," "actual knowledge" or "best of Seller's knowledge" or words of similar import shall mean the actual knowledge of Joseph D. Buckman, Director of Transactions, and not to any other persons, as presently recollected by such person, without any review of files or other investigation or inquiry of any kind, and (iii) shall not mean that such person is charged with knowledge of the acts, omissions and/or knowledge of Seller's agents or employees. Notwithstanding anything contained in this Agreement to the contrary, Seller shall have no liability for breaches of any representations, warranties and certifications (individually, a "Representation" and collectively, the "Representations") which are made by Seller herein or in any of the documents or instruments required to be delivered by Seller hereunder if Purchaser, its officers, employees, shareholders, members, partners, or AD966IOS.DOC 7 11120/06 agents had knowledge of such breach by Seller as to a fact or circumstance which, by its nature, indicates that a Representation was or has become untrue or inaccurate and Purchaser either (a) fails to terminate this Agreement as set forth in Section 3.9 or (b) at any other time at or prior to Closing, Purchaser elects to proceed to close the transaction contemplated by this Agreement, Purchaser shall not otherwise have the right to bring any lawsuit or other legal action against Seller, nor pursue any other remedies against Seller, as a result ofthe breach of such Representation caused thereby. 10. Purchase As-Is. EXCEPT FOR THE REPRESENTATIONS OF SELLER EXPRESSLY SET FORTH IN SECTION 9 OF THIS AGREEMENT, PURCHASER WARRANTS AND ACKNOWLEDGES TO AND AGREES WITH SELLER THAT PURCHASER IS PURCHASING THE PROPERTY IN ITS "AS-IS, WHERE IS" CONDITION "WITH ALL FAULTS" AND DEFECTS AS OF THE CLOSING DATE AND SPECIFICALLY AND EXPRESSLY WITHOUT ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER EXPRESS OR IMPLIED, AS TO ITS CONDITION (INCLUDING, WITHOUT LIMITATION, ITS PHYSICAL CONDITION OR ENVIRONMENTAL MATTERS OR CONDITIONS), FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, OR ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM OR ON BEHALF OF SELLER. EXCEPT FOR THE REPRESENTATIONS OF SELLER EXPRESSLY SET FORTH IN SECTION 9 OF THIS AGREEMENT, SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING (A) THE VALUE, NA TURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, STRUCTURAL INTEGRITY, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE PROPERTY; (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LA WS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY; (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (H) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, OR ADJACENT TO THE PROPERTY OR ANY OTHER ENVIRONMENTAL MA TTER OR CONDITION OF THE PROPERTY; OR (I) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. PURCHASER HEREBY RELEASES SELLER FROM ALL RESPONSIBILITY AND LIABILITY REGARDING THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE CONDITION (INCLUDING, BUT NOT LIMITED TO, THE CONDITION OF THE SOIL, WATER, GROUND WATER, PRESENCE OF HAZARDOUS MATERIALS AND ALL OTHER PHYSICAL CHARACTERISTICS), VALUATION OR UTILITY OF THE PROPERTY. THIS ARTICLE 10, INCLUDING WITHOUT LIMITATION THE RELEASE SET FORTH ABOVE SHALL SURVIVE THE CLOSING. PURCHASER SHALL INDEMNIFY AND HOLD THE INDEMNIFIED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, JUDGMENTS, LIABILITIES, LIENS, DAMAGES, PENALTIES, FINES, COSTS AND REASONABLE ATTORNEY'S FEES (INCLUDING WITHOUT LIMITATION DISBURSEMENTS AND COURT COSTS), FORESEEN OR UNFORESEEN, ASSERTED AGAINST, IMPOSED ON OR SUFFERED OR INCURRED CLAIMS AND DEMANDS MADE AGAINST OR INCURRED OR SUFFERED BY ONE OR MORE OF THE INDEMNIFIED PARTIES OR THE PROPERTY ARISING OUT OF OR IN CONNECTION WITH THE PRESENCE OF HAZARDOUS MATERIALS IN, ON, UNDER ABOUT, OR FROM THE PROPERTY. THIS INDEMNITY SHALL BE DEEMED REMADE ON AND AS OF CLOSING AND SHALL BE A SURVIVING OBLIGATION. PURCHASER ACKNOWLEDGES AND AGREES THA T, EXCEPT FOR AD966105.DOC 8 11120106 THE REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN SECTION 9 OF THIS AGREEMENT, ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO THE PROPERTY W AS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGA TION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON EXCEPT FOR THE EXPRESS REPRESENTATIONS SET FORTH IN SECTION 9 OF THIS AGREEMENT. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT PURCHASER IS A SOPHISTICATED AND EXPERIENCED PURCHASER OF PROPERTIES SUCH AS THE PROPERTY AND HAS BEEN DULY REPRESENTED BY COUNSEL IN CONNECTION WITH THE NEGOTIATION OF THIS AGREEMENT. PURCHASER ACKNOWLEDGES THAT PURCHASER HAS NOT RELIED, AND IS NOT RELYING UPON ANY INFORMATION, DOCUMENT, SALES BROCHURES OR OTHER LITERATURE, MAPS OR SKETCHES, PROJECTION, PRO FORMA, STATEMENT, REPRESENTATION, GUARANTEE OR WARRANTY (WHETHER EXPRESS OR IMPLIED, OR ORAL OR WRITTEN, MATERIAL OR IMMATERIAL) THAT MAY HAVE BEEN GIVEN BY OR MADE BY OR ON BEHALF OF THE SELLER. EXCEPT AS MAY OTHERWISE BE PROVIDED HEREIN, SELLER HAS MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF THE PROPERTY. FOR PURPOSES OF THIS SECTION 10. THE PROPERTY SHALL INCLUDE ANY PERSONAL PROPERTY BEING TRANSFERRED TO PURCHASER HEREUNDER. 11. Purchaser's ReDresentations. Warranties and Covenants. Purchaser hereby represents, warrants and covenants as follows: I 1.1 Power. Purchaser has the legal power, right and authority to enter into this Agreement and the instruments referenced herein and to consummate the transactions contemplated hereby. 11.2 ReQuisite Action. All requisite action (corporate, trust, partnership or otherwise) has been taken by Purchaser in connection with entering into this Agreement and the instruments referenced herein and the consummation ofthe transactions contemplated hereby. No consent of any partner, shareholder, member, creditor, investor, judicial or administrative body, authority or other party is required which has not been obtained to permit Purchaser to enter into this Agreement and consummate the transaction contemplated hereby. 11.3 Authority. The individuals executing this Agreement and the instruments referenced herein on behalf of Purchaser have the legal power, right and actual authority to bind Purchaser to the terms and conditions hereof and thereof. 11.4 Validity. This Agreement and all documents required hereby to be executed by Purchaser are and shall be valid, legally binding obligations of and enforceable against Purchaser in accordance with their terms. 11.5 Conflicts. Neither the execution and delivery ofthis Agreement and documents referenced herein, nor the incurrence ofthe obligations set forth herein, nor the consummation ofthe transactions herein contemplated, nor referenced herein conflict with or result in the material breach of any terms, conditions or provisions of or constitute a default under, any bond, note, or other evidence of indebtedness or any contract, lease or other agreements or instruments to which Purchaser is a party. AD966105.DOC 9 11120106 11.6 Litigation. There is no action, suit or proceeding pending or threatened against Purchaser in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the ability of Purchaser to carry out the transactions contemplated by this Agreement. 12. Closing Costs. Seller shall pay the following expenses: Seller's legal fees and expenses, and Seller's prorated share of real estate taxes through the Closing Date. Purchaser shall pay the following expenses: (a) all costs to obtain the Seller's Commitment and an AL T A owner's Title Policy for the Property, if any; (b) all costs to obtain Seller's Survey and Purchaser's Survey, referred to at Section 5 hereof; (c) state and county transfer taxes; (d) the costs for extended coverage and any endorsements to the Title Policy, if applicable; (e) intentionally omitted; (1) the fee for the recording of the Deed; (g) all costs and expenses incurred in connection with the transfer of any transferable permits, warranties or licenses in connection with the ownership or operation of the Property; (h) intentionally omitted; (i) Purchaser's legal fees and expenses; and G) 100% ofthe total amount of all conveyance fees, documentary, and local stamp and transfer taxes, if any. The provisions of this Section 12 shall survive Closing or any termination ofthis Agreement. 13. Commissions. Seller shall be responsible for the payment of any brokerage commission to its real estate broker, if any. Seller and Purchaser each warrant and represent to the other that neither has had any dealings with any other broker, agent, or finder relating to the sale of the Property or the transactions contemplated hereby. Each party hereto agrees to indemnifY and hold the other harmless against any claim for brokerage commissions, compensation or fees by any broker, agent, or finder in connection the sale of the Property or the transactions contemplated hereby resulting from the acts of the indemnifYing party. The provisions of this Section 13 shall survive Closing or any termination of this Agreement. 14. Intentionally omitted. IS. Attornevs' Fees and Costs. In the event suit or action is instituted to interpret or enforce the terms of this Agreement, or in connection with any arbitration or mediation of any dispute, the prevailing party shall be entitled to recover from the other party such sum as the court, arbitrator or mediator may adjudge reasonable as such party's costs and attorney's fees, including such costs and fees as are incurred in any trial, on any appeal, in any bankruptcy proceeding (including the adjudication of issues peculiar to bankruptcy law) and in any petition for review. Each party shall also have the right to recover its reasonable costs and attorney's fees incurred in collecting any sum or debt owed to it by the other party, with or without litigation, if such sum or debt is not paid within fifteen (15) days following written demand therefor. The provisions of this Section IS shall survive Closing or any termination ofthis Agreement. 16. Notice. All notices, demands, deliveries and communications (a "Notice") under this Agreement shall be delivered or sent by: (i) first class, registered or certified mail, postage prepaid, return receipt requested, (ii) nationally recognized overnight carrier, or (iii) facsimile with original Notice sent via overnight delivery addressed to the address ofthe party in question set forth in the first paragraph of this Agreement and copies to the parties designated below or to such other address as either party may designate by Notice pursuant to this Section 16. Notices shall be deemed given (x) three business days after being mailed as provided in clause (i) above, (y) one business day after delivery to the overnight carrier as provided in clause (ii) above, or (z) on the day of the transmission of the facsimile so long as it is received in its entirety by 5:00 p.m. (Chicago time) on such day and the original of such Notice is received the next business day via overnight mail as provided in clause (iii) above. AD966105.DOC 10 11120/06 Notices to Seller copy to: Robbins, Salomon & Patt, Ltd. 25 East Washington Street, Suite 1000 Chicago, IL 60602 Attn: Richard L. Gayle, Esq. Facsimile no.: (312) 782-6690 With an additional copy to: AT&T Corporate Real Estate Department 225 W. Randolph, Floor 13 Chicago, Illinois 60606 Attn: Joseph D. Buckman, Director of Transactions Facsimile no: (312) 814-7361 Notices to Purchaser copy to: Attn: Facsimile no.: With an additional copy to: City of Carmel One Civic Square Carmel, Indiana 46032 Attn: Facsimile no.: L.l 17. Fire or Other CasuallY: Condemnation. 17.1 Intentionally Omitted. 17.2 Eminent Domain. [fany portion ofthe Property is taken in eminent domain proceedings prior to Closing, Purchaser may terminate this Agreement by notice to Seller given on or before the earlier of (i) twenty (20) days after such taking or (ii) the Closing Date, and, in the event of such termination, this Agreement shall be of no further force and effect and, except for the Surviving Obligations, neither party shall thereafter have any further obligation under this Agreement. If Purchaser does not so elect to terminate or if the taking is not material, then the Closing shall take place as herein provided without abatement of the Purchase Price, and Seller shall deliver or assign to Purchaser on the Closing Date, without warranty or recourse, all of Seller's right, title and interest in and to all condemnation awards paid or payable to Seller. I 8. ODerations after Date ofthis Agreement. Seller covenants and agrees with Purchaser that after the date hereof through the Closing, Seller will (except as specifically provided to the contrary herein) continue to operate, maintain and repair the Property in a manner consistent with its current practices. 19. Assignment. Purchaser shall not assign this Agreement without Seller's prior written consent, which consent may be withheld for any reason or no reason. Subject to the previous sentence, this Agreement shall apply to, inure to the benefit of and be binding upon and enforceable against the parties hereto and their respective successors and assigns. Seller's consent to any such assignment shall be conditioned upon Seller's receipt ofa duly executed express assumption of all of the duties and obligations of Purchaser by the proposed assignee in a form acceptable to Seller not less than five (5) business days prior to the Closing Date. AD966105.00c 11120/06 11 20. Remedies. 20.1 Purchaser Default. If the Closing shall not occur due to default by Purchaser, then, except for the Surviving Obligations, the sole remedy of Seller shall be to cause this Agreement to be terminated and receive trom Purchaser the sum of Forty-one Thousand Dollars ($41,000.00) in cash, as liquidated damages. 20.2 Seller Default. Ifthe Closing shall not occur due to default by Seller, then except for the Surviving Obligations, the sole remedy of Purchaser shall be to cause this Agreement to be terminated, without further obligation by either party hereunder to the other. I 20.3 Damages. Seller and Purchaser agree that the payments provided for in this Section 20 and (except for the Surviving Obligations) otherwise in this Agreement, in respect ofthe failure of performance of an obligation by either party hereto, are intended as liquidated damages, and not as a penalty, as a reasonable estimate of actual damages, in full satisfaction ofthe obligations ofthe party making or causing to be made the payment, it being agreed that actual damages are difficult or impossible to ascertain. 21. Miscellaneous. 21.1 Entire Agreement. This Agreement, together with the exhibits attached hereto, constitute the entire agreement of the parties hereto regarding the purchase and sale of the Property, and all prior agreements, understandings, representations and statements, oral or written, are hereby merged herein. In the event.of a conflict between the terms ofthis Agreement and any prior written agreements, the terms ofthis Agreement shall prevail. This Agreement may only be amended or modified by an instrument in writing, signed by the party intended to be bound thereby. 21.2 Time. All parties hereto agree that time is ofthe essence in this transaction. If the time for performance of any obligation hereunder shall fall on a Saturday, Sunday or holiday (national, in the State of ll1inois or the state in which the Property is located) such that the obligation hereby can not be performed, the time for performance shall be extended to the next such succeeding day where performance is possible. 21.3 Counterpart Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. 21.4 Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF INDIANA AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED. 21.5 Publicity. Seller and Purchaser hereby covenant and agree that, at all times after the date of execution hereof and continuing after the Closing, unless consented to in writing by the other party, no press release or other public disclosure concerning the Purchase Price hereunder shall be made, and each party agrees to use best efforts to prevent disclosure of this transaction. The provisions of this Section 21.5 shall survive Closing or any termination ofthis Agreement. 2 1.6 Recordation. Purchaser shall not record this Agreement or a memorandum or other notice thereof in any public office without the express prior written consent of Seller. A breach by Purchaser ofthis covenant shall, without further action of the parties, render Purchaser's rights hereunder completely null and void. AD966105.DOC 11120/06 12 21.7 Benefit. This Agreement is for the benefit of Purchaser and Seller, and except as provided in the indemnities granted by Purchaser in this Agreement and in the Purchase Documents (as defined in Section 22) with respect to the Indemnified Parties listed therein, no other person or entity will be entitled to rely on this Agreement, receive any benefit from it or enforce any provisions of it against Purchaser or Seller. 21.8 Section Headings. The Section headings contained in this Agreement are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several Sections hereof. 21.9 Further Assurances. Purchaser and Seller agree to execute all documents and instruments reasonably required in order to consummate the purchase and sale herein contemplated. 21.10 Severability. If any portion of this Agreement is held to be unenforceable by a court of competent jurisdiction, the remainder ofthis Agreement shall remain in full force and effect. 21.11 Waiver of Trial bv Jurv. Seller and Purchaser, to the extent they may legally do so, hereby expressly waive any right to trial by jury of any claim, demand, action, cause of action, or proceeding arising under or with respect to this Agreement, or in any way connected with, or related to, or incidental to, the dealings of the parties hereto with respect to this Agreement or the transactions related hereto or thereto, in each case whether now existing or hereafter arising, and irrespective of whether sounding in contract, tort, or otherwise. To the extent they may legally do so, Seller and Purchaser hereby agree that any such claim, demand, action, cause of action, or proceeding shall be decided by a court trial without a jury and that any party hereto may file an original counterpart or a copy of this Section with any court as written evidence of the consent of the other party or parties hereto to waiver of its or their right to trial by jury. 21.12 Indeuendent Counsel. Purchaser and Seller each acknowledge that: (a) they have been represented by independent counsel in connection with this Agreement; (b) they have executed this Agreement with the advice ofsuch counsel; and (c) this Agreement is the result of negotiations between the parties hereto and tbe advice and assistance of their respective counsel. The fact that this Agreement was prepared by Seller's counsel as a matter of convenience shall have no import or significance. Any uncertainty or ambiguity in this Agreement shall not be construed against Seller because Seller's counsel prepared this Agreement in its final form. 21.13 No Waiver. No covenant, term or condition ofthis Agreement other than as expressly set forth herein shall be deemed to have been waived by Seller or Purchaser unless such waiver is in writing and executed by Seller or Purchaser, as the case may be. 21.14 Discharge and Survival. The delivery ofthe Deed by Seller, and the acceptance thereofby Purchaser shall be deemed to be the full performance and discharge of every covenant and obligation on the part of Seller to be performed hereunder except the Surviving Obligations. No action shall be commenced after the Closing on any covenant or obligation except the Surviving Obligations. 21.15 Exchange. Each party acknowledges that either party may desire to exchange other property of like kind and qualifYing use within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and the Regulations promulgated thereunder, for fee title in the Property. Seller expressly reserves the right to assign its rights, but not its obligations hereunder, to a Qualified Intermediary as provided in IRC Reg. 1.1031 (k)-l (g)(4) on or before the Closing Date. Purchaser and Seller agree to cooperate with one another to the extent required in the event such an assignment is made, without, however, either party being AD966IOS.DOC 11120106 13 obligated to take title to any real estate other than the Property, and without any liability or expense to the other party. 21.16 Relocation of Seller's Telecommunications Facilities. Purchaser hereby acknowledges that . various cabling, electronic transmission media, fiber optics and/or other facilities or telecommunications equipment (collectively, the "Telecommunications Facilities") is currently installed at or under the Property. Purchaser further acknowledges that Seller's Telecommunications Facilities, if damaged, could disrupt the uninterrupted provision of telecommunications services to the public and would likely result in costly repairs, injury and possible death to persons. Therefore, Purchaser hereby agrees that (i) Seller shall have until April 15, 2007 to relocate its Telecommunications Facilities, at Seller's sole cost and expense; (ii) Purchaser shall, except in the event of an emergency, give Seller not less than seventy-two (72) hours' prior written notice of Purchaser's intention to engage in any excavating, digging, trenching, boring or similar activities which may disrupt or penetrate the soil at or near the property; (iii) Purchaser shall exercise all requisite care and caution .in its use ofthe Property from and after the Closing until such time as Seller's Telecommunications Facilities have been relocated, including, without limitation, digging only when and where appropriate and, prior to any activities at the Property (construction or otherwise) locating and avoiding damage to any Telecommunications Facilities. Purchaser shall save, defend, indemnifY and otherwise hold Seller harmless of, from and against any and all claims, actions,losses, damages, costs, liabilities or expenses, including reasonable attorneys' fees and costs, arising out of Purchaser's or its agents', contractors' or invitees' use of the Property and/or all construction related activities thereon. The terms and provisions ofthis paragraph shall survive Closing or any earlier termination ofthis Agreement. 22. Exculpation of Seller and Related Parties. Notwithstanding anything to the contrary contained in this Agreement or in any exhibits attached hereto or in any documents executed or to be executed in connection herewith (collectively, including this Agreement, said exhibits and all such documents, the "Purchase Documents"), it is expressly understood and agreed by and between the parties hereto that after Closing: (i) the recourse of Purchaser or its successors or assigns against Seller with respect to the alleged breach by or on the part of Seller of any representation, warranty, covenant, undertaking, indemnity or agreement contained in any of the Purchase Documents (collectively, "Seller's Undertakings") shall (x) be deemed waived unless Purchaser has delivered to Seller written notice that Purchaser is seeking recourse under Seller's Undertakings (the "Recourse Notice") after the Closing Date but prior to the date that is thirty (30) days after the Closing Date and Purchaser has filed suit with respect to same within sixty (60) days after the date of Purchaser's delivery to Seller of the Recourse Notice, and (y) be limited to an amount not to exceed $32,800.00 in the aggregate of all recourse of Purchaser under the Purchase Documents; however, in all cases Seller shall not be liable for claims aggregating less than $3,280.00; and (ii) no personal liability or personal responsibility of any sort with respect to any of Seller's Undertakings or any alleged breach thereof is assumed by, or shall at any time be asserted or enforceable against Seller, or against any of their respective shareholders, directors, officers, employees, agents, constituent partners, members, beneficiaries, trustees or representatives except as provided in (i) above with respect to Seller. AD9661OS.DOC J 1120106 14 IN \VlTNESS WHEREOF, the parties hereto have caused these presents to be made as of the day and year first ahove _d. SElLER: INDIANA BELL TELEPHONE COMPANY lNCORPORA TED. an Il\diana corporation, dlbfa ::&TII&~ Name: J D. Buckman Its: Director of Transactions Date of Acceptance: JJ ~.fj......2;J.l 2Ili. . PURCHASER: CITY OF CARMEL, INDIANA, a municipal corporation _ ~ By:/~ ! tp ~ ~. ?It'," ~O Its: tI 6 AC96610~ 111]0106 15 Exhibit A Exhibit B Exhihit C Exhihit D AD966105.DOC 11120/06 LIST OF EXHIBITS AND SCHEDULES Legal Description - Property Intentionally Omitted Right of Access and Construction Staging Agreement Form of Non-Foreign Affidavit 16 EXHIBIT A LEGAL DESCRIPTION COMMONLY KNOWN AS: 210 3rd Avenue SW, Cannel, Indiana 46032 PARCEL NO.: EXHIBIT A - Page 1 AD966105.DOC 11120/06 EXHIBIT B INTENTIONALLY OMITTED AD966105.DOC 11120/06 AD966105.DOC 11120/06 EXHIBIT C RIGHT OF ACCESS AND CONSTRUCTION STAGING AGREEMENT EXHIBIT D NON-FOREIGN AFFIDAVIT Section 1445 ofthe Internal Revenue Code of 1986, as amended, provides that a transferee ofa U.S. property interest must withhold tax if the transferor is a foreign -person. To inform the transferee that withholding of tax is not required upon the disposition ofa U.S. property interest by a ("Transferor"), the undersigned hereby certifies the following on behalf of the Transferor: I. Transferor is not a foreign corporation, foreign partnership, foreign trust, foreign estate, or foreign person (as those terms are defined in the Internal Revenue Code and the Income Tax Regulations promulgated thereunder); 2. Transferor's U.S. employer identification number is ; and 3. Transferor's address is c/o -' Transferor understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury the undersigned declares that it has examined this certification and to the best of its knowledge and belief it is true, correct and complete, and it further declares that it has authority to sign this document on behalf of Transferor. Dated: ,2006 Transferor: a By: Name: Its: AD966105.DOC 11/20106 ~ Cin:2UBL~~~el ACCEPTANCE SO ORDERED: CITY OF CARMEL BOARD OF PUBLIC WO~S & SAFETY k {~ P JamofBrainard, Mayor ~jj~:,,~ Mary urke -0 Date: Date: l~( ~6Iop-- , . ATTEST: I/{ ana L. Cordray, lAMC, Clerk- Trea er Date: fJ;~/ap Instrument prepared by: Douglas C. Haney, Cannel City Attorney, One Civic Square, Carmel, Indiana 46032 ONE CMC SQUARE CAfuVIEL, INDIANA 46032 317/571-2400