HomeMy WebLinkAboutLand Sale Contract 410
LAND SALE CONTRACT
This Land Sale Contract(the"Contract"), entered into by and between 251, LLC (the"Seller"), and
The City of Carmel Redevelopment Commission(the"Purchaser"),this_day of July,2005,WITNESSES:
Recitals
WHEREAS,Seller and Purchaser have entered into that certain Purchase Agreement dated
June 21, 2005 (the "Purchase Agreement');
WHEREAS,pursuant to the Purchase Agreement,Seller has agreed to convey to Purchaser,
and Purchaser has agreed to purchase from Seller, certain real estate owned by Seller and located at 251
2"d Street SW and 261 2nd Street SW, which real estate is depicted on Exhibit A(collectively, the"Parcel"),
together with and including all of Seller's right,title,and interest in and to:(a)all buildings and improvements
located on the Parcel (the "Improvements"); and (b) all rights, interests, privileges, and easements in any
way appertaining to the foregoing, or used in connection therewith (the "Rights");
WHEREAS, the Parcel, the Improvements, and the Rights, collectively, are the"Property";
WHEREAS, pursuant to the Purchase Agreement, the purchase price for the Property is
$990,000.00 (the "Purchase Price");
• WHEREAS, the Purchase Agreement contemplates that, at the closing of the transaction
contemplated therein (the "Closing"): (a) Purchaser shall pay to Seller a portion of the Purchase Price, as
more particularly determined pursuant to the Purchase Agreement; and(b)Seller and Purchaser shall enter
into a land sale contract pursuant to which Purchaser shall pay the remainder of the Purchase Price to Seller;
WHEREAS, the Closing occurred on the date hereof;
WHEREAS, at the Closing, Purchaser paid to Seller a portion of the Purchase Price equal
to $116,000.00;
WHEREAS,the remaining amount of the Purchase Price(the"Purchase Price Remainder")
is $874,000.00; and
WHEREAS, Seller and Purchaser desire to enter into this Contract;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, Seller and Purchaser agree as follows:
1. Purchase Price Remainder. Purchaser shall pay the Purchase Price Remainder as follows:
(a) Interest. Interest shall accrue on the principal balance of the Purchase Price
Remainder remaining from time to time (the "Principal Balance"), with such interest (the
"Accrued Interest") accruing: (i) from the d te-hereof--(the "Execution Date") until the
Purchase Price is paid in full; and (ii) at the matte of; % representing the greater of:
(A) 6.5%; or (B) 275 basis points above the 5-year B- rate,-rate, as published in the
Wall Street Journal on the 5th business day before the Execution Date). The Principal
c}' Balance and the Accrued Interest, collectively, are the "Contract Balance".
Abjj*) ,�,Q{-t3) Payment.
f�' b (i) On the first day of the first full calendar month following the
Execution Date, Purchaser shall pay to Seller the Accrued Interest for the
period: (A)commencing on the Execution Date; and (B) ending on the last
day of the calendar month in which the Execution Date occurred.
(ii) Commencing on the first day of the second full calendar month
following the Execution Date, and continuing on the first day of each of the
next 58 calendar months thereafter, Purchaser shall pay $8,000.00 to
Seller.
(ii) On the first day of the 61st full calendar month following the
Execution Date (the"Final Payment Date"), Purchaser shall pay to Seller
the remaining principal balance of the Purchase Price Remainder.
(c) Prepayment. Purchaser may make prepayments of any amount of the Contract
Balance at any time without penalty or premium. All payments made by Purchaser,
including prepayments, shall be applied first to Accrued Interest, and then to reduce the
Principal Balance.
2. Taxes and Insurance.
(a) Taxes. Purchaser assumes and agrees to pay: (i) all general and special
governmental and utility assessments(the"Assessments")first becoming due after the date
hereof;and (ii)real estate taxes assessed for and becoming a lien against the Property(the
"Real Estate Taxes"), beginning with the installment of Real Estate Taxes first becoming
due in November, 2005 (the "November Installment"); accordingly, there shall be no
proration of Real Estate Taxes,and Purchaser shall pay all installments becoming due after
the date hereof, including the November Installment. Seller shall pay: (i) all Assessments
first becoming due prior to the date hereof, and any other assessments of any nature that
first become due prior to the date hereof; and (ii)all installments of Real Estate Taxes due
prior to the November Installment. Purchaser, at its expense and upon written notice to
Seller, may contest on its and Seller's behalf any changes of the assessed valuation of the
Property. Seller shall cause all statements for Assessments and installments of Real Estate
Taxes payable by Purchaser pursuant to this Subsection to be sent directly to Purchaser,
and Purchaser, upon written request by Seller, shall provide to Seller evidence that
Purchaser has paid such Real Estate Taxes.
(b) Insurance. Purchaser shall maintain fire and extended coverage insurance with a
responsible insurer covering all improvements located on the Property in a minimum
amount equal to the amount of the Principal Balance (the "Casualty Insurance"). The
Required Insurance shall be issued in the name of Seller and Purchaser,as their respective
interests may appear. Purchaser shall maintain standard liability insurance, in customary
amounts, which insurance (the "Liability Insurance") shall name Seller as an additional
insured. Purchaser, upon written request by Seller, shall provide to Seller evidence that
Purchaser is maintaining the Casualty Insurance and the Liability Insurance (the"Required
Insurance").
(c) Payment. If: (i) Purchaser fails to: (A) pay any Real Estate Taxes; or (B) maintain
the Required Insurance; and (ii)such failure continues for ten days after written notice from
Seller;then Seller may pay such Real Estate Taxes or maintain the Required Insurance,as
the case may be, and add the amount paid to the Principal Balance.
3. Possession and Title. Seller and Purchaser acknowledge that: (a)on the date hereof, Seller has
given Purchaser full and complete possession of the Property; (b)as of the date hereof, Purchaser has the
right to any income from the Property; and (c) Purchaser has obtained, from Hamilton Title Security, LLC
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(the"Title Insurer"), a land contract purchaser's policy of title insurance satisfactory to Purchaser(the"Land
Contract Title Policy"). After the date hereof, Seller shall not encumber the Property with a mortgage or any
other lien.
4. Damage. All proceeds of the Casualty Insurance received by Purchaser and Seller as payment for
any loss of,or damage to,the Property shall be applied as determined by Purchaser either: (a)to restoration
and/or repair of the Property; or(b)toward prepayment of the Contract Balance; provided that, if an uncured
Event of Default (as defined in Section 9) exists on the date of receipt of such proceeds, then Seller may
require such proceeds to be applied toward prepayment of the Contract Balance,with any excess to be paid
to Purchaser.
5. Mechanics' Liens Release. Purchaser shall not suffer or cause the filing of any mechanic's lien
against the Property. If any mechanic's lien is filed against the Property, or any part thereof, for work
claimed to have been done for, or materials claimed to have been furnished to, Purchaser, then Seller, at
its option, may compel the prosecution of an action for the foreclosure of such mechanic's lien by the lienor.
If: (a) any such mechanic's lien is filed; and (b) an action is commenced to foreclose the lien; then, upon
receipt of written demand from Seller, Purchaser, at its expense, shall cause such mechanic's lien to be
released by: (a) filing a written undertaking with a surety approved by the Court; and (b) obtaining a court
order releasing the Property from such mechanic's lien. Nothing in this Contract shall be deemed or
construed to constitute consent to, or a request of any party for, or as giving Purchaser the right or authority
to contract for,authorize,or permit,the performance of any work or the furnishing of any materials that would
permit the attaching of a valid mechanic's lien.
6. Indemnification. Purchaser hereby assumes all risk and responsibility for accidents, injuries, or
damages to persons and property arising from its use and control of the Property and the improvements
located thereon. Each party shall indemnify and hold harmless the other from and against any and all
claims,judgments,liabilities,losses,costs,and expenses(including,without limitation,reasonable attorneys'
fees and court costs)arising from,or connected with, such party's control or use of the Property(including,
without limitation,any damage or injury to person or property); provided that these indemnifications shall not
include any matter against which Seller or Purchaser effectively is protected by insurance. If either party,
without fault, becomes a party to litigation commenced by or against the other party, then the party by or
against whom litigation is commenced shall indemnify and hold harmless the other party.
7. Use and Operation. Purchaser may use the Property for any legal purpose. If Purchaser:
(a)obtains,from an independent MAI appraiser, an appraisal that values the Parcel and the Improvements
separately (the "Appraisal"); and (b) pays down the Principal Balance so that it is no more than 80% of the
value of the Parcel, as set forth in the Appraisal; then Purchaser shall have the right to demolish the
Improvements. Except to the extent that Purchaser is permitted to demolish the Improvements, Purchaser
shall: (a) use the Property in a careful manner; (b) keep the Property in good repair; and (c) not commit
waste on the Property. In connection with its use of the Property, Purchaser shall comply with all applicable
federal, state, or local laws, statutes, or ordinances, or governmental rules, regulations, or orders. Until the
Contract Balance is paid in full, Seller,from time to time, at reasonable times, and upon prior written notice
to Purchaser, may enter upon and inspect the Property.
8. Purchaser Defaults. Each of the following shall constitute an"Event of Default"for purposes of this
Contract:
(a) Failure by Purchaser to make any payment within 10 days after the date on which
the payment first becomes due;
(b) Failure by Purchaser to observe or perform any term or condition of this Contract
to be observed or performed by Purchaser with respect to insurance, and the continuance
of such failure for ten days after receipt of written notice from Seller;
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(c) Failure by Purchaser to perform or observe any other term or condition of this
Contract, and the continuance of such failure for 30 days after receipt of written notice from
Seller; provided that, if such failure is of a nature that it reasonably cannot be cured within
30 days, then no Event of Default shall be deemed to have occurred so long as Purchaser:
(i) commences to cure such failure within 30 days; and (ii) diligently pursues such cure to
completion;
(c) The making of any levy on, or any seizure or attachment of, the Property;
(d) Purchaser: (i) institutes or consents to any proceedings: (A) in insolvency; (B)for
the adjustment, liquidation, extension, or composition or arrangement of debts; or (C) for
any other relief under any insolvency law or laws relating to the relief or reorganization of
debtors; (ii) files an answer admitting bankruptcy or insolvency, or in any manner is
adjudged insolvent; (iii) makes an assignment for the benefit of creditors; or(iv) admits in
writing its inability to pay debts as they become due; or
(e) Any part of the Property, or all or a substantial part of the property or assets of
Purchaser, is placed in the hands of any appointed receiver, trustee or other appointed
officers or representatives of any court, and the appointment of such receiver, trustee, or
other officer or representative is not vacated or set aside within 90 days of the appointment,
or Purchaser consents, agrees or acquiesces to the appointment of any such receiver or
trustee.
9. Seller Remedies. If an Event of Default occurs and is continuing, then: (a)at the option of Seller:
(i)the entire Contract Balance shall become immediately due and payable without any notice or demand of
any kind; and (ii)Seller shall have the right to exercise any and all remedies available at law or in equity to:
(A) collect the Contract Balance; (B) foreclose this Contract; and (C) protect Seller's interest under this
Contract and in and to the Property; or (b) Seller may exercise any and all remedies available at law or in
equity to enforce the observation or performance by Purchaser of the terms and conditions of this Contract.
All of the remedies available to Seller shall be cumulative and not exclusive, and the failure by Seller to
exercise any remedy at any time shall not operate as a waiver of the right of Seller to exercise any remedy
for the same or any subsequent Event of Default at any time thereafter. If an Event of Default occurs under
Subsection 8(a), then, in addition to the foregoing remedies, Purchaser shall pay to Seller an amount equal
to 5% of the late payment.
10. Transfer of Title. On the Final Payment Date, and upon payment by Purchaser of the Contract
Balance,Seller shall convey to Purchaser fee simple title to the Property by General Warranty Deed,subject
only to: (a)easements and restrictions of record as of the Execution Date,as disclosed in the Land Contract
Title Policy; (b)the rights of persons in possession of the Property claiming by,through, or under Purchaser;
(c) the lien of all Real Estate Taxes payable by Purchaser hereunder; and (d) any other encumbrances
which, by the terms and conditions of this Contract,are to be paid by Purchaser. In addition to the foregoing,
Seller shall deliver the following to Purchaser:
(a) a Vendor's affidavit, in form and substance acceptable to Purchaser and the Title
Insurer;
(b) an affidavit that Seller is not a "foreign person", in form and substance similar to that
delivered to Purchaser at the Closing; and
(c) an affidavit that the Parcel is not"property"under the Indiana Responsible Property
Transfer Law, as amended, in form and substance similar to that delivered to Purchaser at
the Closing.
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11. Notices. All notices permitted or required to be given hereunder shall be in writing, and shall be
deemed to be delivered when: (a) delivered personally; (b) sent by facsimile,with electronic confirmation
of receipt;or(c)sent by national overnight courier; in all events to the following addresses: to Purchaser at
City of Carmel,Indiana,One Civic Square,Carmel,Indiana 46032,Facsimile:317-844-3498,Attn:Les Olds,
with a copy to: Karl P. Haas, Esq., Wallack Somers& Haas, One Indiana Square, Suite 1500, Indianapolis,
Indiana 46204, Facsimile:317-231-9900;or(b)to Seller at 3057 Sugar Maple Court,Carmel,Indiana 46033.
Either party may change its address for notice by written notice delivered to the other party as provided
above.
12. Assignment Rights. Purchaser shall not sell, assign, pledge, mortgage, encumber,or transfer its
rights and interests in and to the Property and under this Contract without the written consent of Seller;
provided that Purchaser, without the written consent of Seller, shall have the right to assign this Contract,
without the consent of Seller, to: (a)any agency or instrumentality of the City of Carmel, Indiana, in which
case Purchaser shall be released from all obligations hereunder as of the date of such assignment; or(b)a
party that has committed to Purchaser that it will redevelop the Property, in which case Purchaser shall
remain obligated hereunder until the Contract Balance is paid in full. This Contract otherwise shall be
binding upon, and shall inure to the benefit of, Seller and Purchaser and their respective heirs, personal
representatives, successors, and assigns.
13. Authority. The undersigned persons executing this Contract on behalf of Seller and Purchaser
represent and certify that: (a)they are fully empowered and duly authorized by all necessary action of Seller
and Purchaser, respectively, to execute and deliver this Contract; (b)they have full capacity, power, and
authority to enter into and carry out this Contract; (c) the execution, delivery, and performance of this
Contract have been duly authorized by Seller and Purchaser, respectively;and (d)this Contract is the legal,
valid and binding obligation of Seller and Purchaser, respectively.
14. Miscellaneous. The terms and conditions of this Contract shall be governed by and construed in
accordance with the laws of the State of Indiana. If Seller fails to observe or perform any term or condition
of this Contract to be observed or performed by Seller, and such failure continues for 30 days after receipt
of written notice from Purchaser, then: (i) Seller shall be deemed to be in default; and (ii) Purchaser may
exercise any and all remedies available at law or in equity (including, without limitation, the remedy of
specific performance); provided that, if such failure is of a nature that it reasonably cannot be cured within
30 days, then no default shall be deemed to have occurred so long as Seller: (i) commences to cure such
failure within 30 days; and (ii) diligently pursues such cure to completion. This Contract supersedes the
Purchase Agreement, and is the final expression of the complete and exclusive agreement between Seller
and Purchaser with respect to the Property. No agreement by and between Seller and Purchaser to modify
or amend this Contract shall be binding and enforceable, unless all terms and conditions of the modification
or amendment are set forth in writing and signed by Seller and Purchaser. Whenever consent is required
of either party hereunder for the occurrence of any action,such consent shall not be withheld unreasonably.
Purchaser, at its expense, may record this Contract.
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IN WITNESS WHEREOF, Seller and Purchaser have executed this Contract as of the day
and year first written above.
THE CITY OF CARMEL
DES O 1MENT COMMI SI N
By:�l� 1. _ -ZYZ v
Ronald Carter, President
251, LLC
By: Via
Dorot y ". Harrill/e ger i
Georgirelano Harrill, Member
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ACKNOWLEDGMENTS
STATE OF INDIANA
)SS:
COUNTY OF PTh Cr )
Before me, a Notary Public in and for the State of Indiana, personally appeared Ronald Carter,the
President of the City of Carmel Redevelopment Commission, who acknowledged the execution of the
foregoing Land Sale Contract on behalf of such entity.
WITNESS my hand and Notarial Seal thi2 day •).:='Mill •s
By:
otY PU6 otary Pubes
<� WILLIAM B.OLSEN
, de My Comm. Exp: 06-30-08
Res,of Hamilton Co, Printed Name:
I am a resident of County, Indiana.
My commission expires
STATE OF INDIANA , )
SS:
COUNTY OF otnio`TOn.� )
Before me, a Notary Public in and for the State of Indiana, personally appeared Dorothy R. Harrill
and George Delano Harrill, Members of 251, LLC, who acknowledged the execution of the foregoing Land
Sale Contract on behalf of such entity.
sr%
WITNESS my hand and Notarial Seal this,% day o 41,:grdi 9
By:
Y Pd
Not
=r c
P R B s, WILLIAM B.OLSEN
c' My Comm.Exp: 06-30-08 Printed Name:
Res.of Hamilton Co,
I am a resident of County, Indiana.
My commission expires
This instrument was prepared by Jennifer R.Shoup,Attorney-At-Law,Wallack Somers&Haas,One Indiana
Square, Suite 1500, Indianapolis, Indiana 46204.
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File No.: 2051845
EXHIBIT A
Part of the East Half of the Southeast Quarter of Section 25, Township 18 North, Range 3 East in
Hamilton County, Indiana, more particularly described as follows:
Commencing at the Northeast corner of the Southeast Quarter of Section 25, Township 18 North,
Range 3 East; thence South 89 degrees 15 minutes 46 seconds West (assumed bearing) 1309.27
feet to the Northwest corner of the East Half of the Southeast Quarter of said Section 25; thence
South 00 degrees 19 minutes 21 seconds West on and along the West line of said East Half
732.44 feet; thence North 89 degrees 16 minutes 46 seconds East parallel with the North line of
said East Half 174.80 feet to the intersection of the East line of Third Avenue S.W. (formerly
Canada Dry Lane) and the South line of Second Street S.W. in the Town of Carmel,Indiana, said
point of intersection being located 326.0 feet South 89 degrees 52 minutes 30 seconds West of
the West right of way line of the Monon Railroad and the point of beginning of this description;
thence South 01 degree 04 minutes 17 seconds West on and along the East line of Third Avenue
S.W. 290.0 feet; thence North 89 degrees 15 minutes 46 seconds East parallel with the South line
of Second Street S.W. 171.53 feet to a point which is 163.00 feet South 89 degrees 15 minutes
46 seconds West of the West right of way line of the Monon Railroad; thence North 00 degrees
36 minutes 52 seconds West parallel with the West right of way line of the Monon Railroad
289.86 feet to a point on the South line of Second Street S.W.; thence South 89 degrees 15
minutes 46 seconds West on and along the South line of Second Street S.W. 163.00 feet to the
point of beginning, containing 1.113 acres, more or less.
ACKNOWLEDGMENTS
STATE OF INDIANA
)SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana, personally appeared Ronald Carter,the
President of the City of Carmel Redevelopment Commission, who acknowledged the execution of the
foregoing Land Sale Contract on behalf of such entity.
WITNESS my hand and Notarial Seal this_day of July, 2005.
By:
Notary Public
Printed Name:
I am a resident of County, Indiana.
My commission expires
STATE OF INDIANA , )
SS:
COUNTY OF H c ro,j )
Before me, a Notary Public in and for the State of Indiana, personally appeared Dorothy R. Harrill
and George Delano Harrill, Members of 251, LLC, who acknowledged the execution of the foregoing Land
Sale Contract on behalf of such entity.
WITNESS my hand and Notarial Seal this day o C"."7'
�
a.w
PRY PUS Not : ;• c
<,.. WILLIAM B.OLSEN
* My Comm.Exp: 06-30-08 Printed Name:
* Res.of Hamilton Co,
1H0 RAP
I am a resident of County, Indiana.
My commission expires
This instrument was prepared by Jennifer R.Shoup,Attorney-At-Law,Wallack Somers&Haas, One Indiana
Square, Suite 1500, Indianapolis, Indiana 46204.
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File No.: 2051845
EXHIBIT A
Part of the East Half of the Southeast Quarter of Section 25, Township 18 North, Range 3 East in
Hamilton County,'Indiana, more particularly described as follows:
Commencing at the Northeast corner of the Southeast Quarter of Section 25, Township 18 North,
Range 3 East; thence South 89 degrees 15 minutes 46 seconds West (assumed bearing) 1309.27
feet to the Northwest corner of the East Half of the Southeast Quarter of said Section 25; thence
South 00 degrees 19 minutes 21 seconds West on and along the West line of said East Half
732.44 feet; thence North 89 degrees 16 minutes 46 seconds East parallel with the North line of
said East Half 174.80 feet to the intersection of the East line of Third Avenue S.W. (formerly
Canada Dry Lane) and the South line of Second Street S.W. in the Town of Carmel, Indiana, said
point of intersection being located 326.0 feet South 89 degrees 52 minutes 30 seconds West of
the West right of way line of the Monon Railroad and the point of beginning of this description;
thence South 01 degree 04 minutes 17 seconds West on and along the East line of Third Avenue
S.W. 290.0 feet; thence North 89 degrees 15 minutes 46 seconds East parallel with the South line
of Second Street S.W. 171.53 feet to a point which is 163.00 feet South 89 degrees 15 minutes
46 seconds West of the West right of way line of the Monon Railroad; thence North 00 degrees
36 minutes 52 seconds West parallel with the West right of way line of the Monon Railroad
289.86 feet to a point on the South line of Second Street S.W.; thence South 89 degrees 15
minutes 46 seconds West on and along the South line of Second Street S.W. 163.00 feet to the
point of beginning, containing 1.113 acres, more or less.