Carmel Station DevelopmentREAL ESTATE PURCHASE AGREEMENT
APPROVED, AS TO
FORM BY:
THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") is executed as of the
day of September, 1998 (the "Agreement Date"), by and between Bay Communities Limited
Partnership, an Indiana limited partnership, whose address is 10415 N. College Avenue,
Indianapolis, Indiana 46280 ("Seller"), and The City of Carmel, Indiana, a municipal corporation,
by and through its Board of Public Works and Safety whose address is One Civic Square, Carmel
Indiana 46033 ("Buyer"), who acknowledge that the following facts are true:
A. Seller is the owner in fee simple of certain real estate located in Hamilton County,
Indiana, commonly known as Lot 1 in Carmel Station Section Three, a subdivision in Hamilton
County, Indiana per plat thereof recorded November 25, 1996 as Instrument No. 96-49687 in the
Office of the Recorder of Hamilton County, Indiana, (the "Property"); and
B. Buyer desires to purchase, and Seller desires to sell the Property;
AND, in consideration ofthe mutual covenants hereinafter contained, Seller and Buyer agree
as follows:
1. Purchase and Sale. Seller agrees to sell, and Buyer agrees to pur. chase the Property
for the price and subject to the terms and conditions hereinafter set forth.
2. Purchase Price. The purchase price for the Property (the "Purchase Price") shall be
Twenty-Four Thousand Eight Hundred Dollars ($24,800.00).
3. Payment of Purchase Price. The Purchase Price, plus or minus any prorations and
adjustments made pursuant to this Agreement, shall be paid by Buyer in cash, certified check, wire
transfer or other immediately available funds at the Closing.
4. Conditions. The Buyer's obligations under this Agreement are subject to the
satisfaction (or waiver in writing by Buyer) of the conditions in this paragraph 4 by no later than
September 3, 1998 (the "Satisfaction Date"). At any time after the Agreement Date, Buyer and its
agents shall have the right to (and Seller hereby grants permission to Buyer to) enter upon the
Property and make any tests and inspections deemed necessary by Buyer to satisfy Buyer as to the
condition of the Property. All such tests shall be at Buyer's cost and expense. Buyer agrees to repair
any damage caused by Buyer or its agents as a result of such tests or inspections. In the event the
following conditions are not satisfied by the Satisfaction Date, Buyer shall, within ten (10) days
thereafter, give Seller written notice that such conditions have not been satisfied and either (i) waive
any unsatisfied condition and proceed to Closing of the purchase and sale; or (ii) notify Seller that
Buyer has elected not to attempt to further resolve or satisfy such condition(s) and that Buyer will
not complete the purchase and sale, which case neither party shall have any further obligation
hereunder.
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(a) Status of Title. Buyer shall have received the Title Commitment and Survey,
as each is hereinafter defined, in the condition and as required under Paragraphs 5 and 6 of this
Agreement.
(b) Environmental Condition. Buyer shall have determined, in its sole discretion,
that (a) the Property is not contaminated with any toxic waste or hazardous substance; (b) the
Property contains no asbestos or PCB's; (c) the Property does not appear on any state or federal
CERCLA (Comprehensive Environment Responsibility Compensation and Liability Act or
Superfund) list; (d) the Property contains no underground storage tanks; and (e) the Property is not
located in any area of special flood hazard, as designated by the United States Department of
Housing and Urban Development or the Federal Emergency Management Agency, or in any flood
plain, floodway or other flood control district designated by any federal, state or local governmental
municipal, public or other authority, body or agency.
(c) Development. Buyer shall have determined that there are no prohibitions on
Buyer' s development of the Property as a road and/or park.
5. Seller's Title.
(a) Seller, at its expense, shall provide Buyer with a commitment for an owner's
policy of title insurance (the "Title Commitment") issued by Hamilton Title Insurance Company
("Title Insurer") on an ALTA Owner's Policy in a form acceptable to Buyer, 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 Buyer, free from the Schedule B standard primed exceptions and all other
exceptions (except those exceptions which have been approved by Buyer) after delivery of the deed
required in paragraph 11 hereof to Buyer from Seller. Such Title Commitment shall have attached
thereto complete, legible copies of all instruments noted as exceptions therein. The Title
Commitment shall be updated prior to the Closing to reflect the state of the title not more than ten
(10) days prior to the Closing. Seller shall pay any and all costs and expenses related to the title
insurance, including all search fees and the premium for the policy and all endorsements issued
pursuant to the Title Commitment. Any closing fee shall be split equally between Buyer and Seller.
(b) If (1) the Title Commitment reflects any exceptions to title which are not
acceptable to Buyer, in Buyer's sole discretion, or (2) the Survey delivered to Buyer pursuant to
Paragraph 6 below discloses any state of fact not acceptable to Buyer in Buyer's sole discretion, or
(3) at any time prior to the Closing, title to the Property is encumbered by any exception to title not
acceptable to Buyer in Buyer's sole discretion (any such exception or unacceptable state of fact being
referred to herein as a "Title Defect"), then Buyer shall, within ten (10) days following receipt of the
Title Commitment or discovery of the Title Defect, as the case may be, give Seller written notice of
such Title Defect. Seller shall, within ten (10) days after receipt of such notice, 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
CAffirmative Coverage"). On or before the Closing, Seller shall provide Buyer with reasonable
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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 the part of Buyer) which have attached to and become a lien against the Property.
6. Survey. Seller, at its expense, shall provide Buyer a staked boundary survey of the
Property (the "Survey") prepared by a registered land surveyor satisfactory to Buyer. The Survey
shall ( 1 ) be completed in accordance with the minimum standard detail requirements for an ALTA
Survey and certified to Seller, Buyer and the Title Insurer by such surveyor; (2) have one perimeter
description ofthe Property; (3) show all easements, rights-of-way, set-back lines, encroachments and
other matters affecting the use of the Property; (4) disclose on the face thereof the acreage of the
Property; (5) disclose that the Property is not in a flood plain; and (6) contain such other matters as
are required for the Title Insurer to delete the standard exceptions on Schedule B to the Title
Commitment.
7. Cooperation of Seller. Seller shall assist Buyer and its representatives, whenever
reasonably requested by Buyer, in obtaining information about the Property.
8. Taxes and Assessments. Buyer will assume and agree to pay (a) all assessments for
municipal improvements becoming a lien against the Property after the Closing and (b) so much of
the real estate taxes and assessments assessed against the Property for and becoming due and payable
after the date of Closing. Any taxes and assessments not assumed by Buyer and not due and payable
at the time of Closing, including without limitation, both installments of real estate taxes payable
during the calendar year in which Closing occurs, shall be paid by Seller.
9. Insurance and Risk of Loss. Insurance on the Property shall be canceled as of the
Closing. In the event that, prior to Closing, all or any portions of the Property, any interests therein,
or any rights appurtenant thereto are taken or appropriated (either permanently or for temporary
periods) under the power of eminent domain or condemnation by any 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 Buyer, at its option, may either (a)
cancel this Agreement by written notice to Seller, in which event Escrow Agent shall immediately
reftmd the Deposit to Buyer and neither party shall have any further obligation hereunder, or (b) elect
to proceed with Closing, in which event the Purchase Price shall be reduced by an amount equal to
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any sums previously paid or then payable to Seller by the condemning authority by reason of such
taking, appropriation or action or proceeding in lieu thereof, and Seller shall transfer and assign to
Buyer at Closing any and all further claims, demands, actions and chooses in action which may exist
by virtue of such taking, appropriation or action or proceeding in lieu thereof; provided, however,
that until the earlier of (i) Closing or (ii) termination of this Agreement, Seller shall not make any
voluntary settlement or agreement regarding any taking, appropriation or action or proceeding in lieu
thereof with any condemning authority without first obtaining Buyer's written consent to such
settlement or agreement.
10. Closing. The closing of the purchase and sale of the Property (the "Closing") shall
occur at the office of Hamilton Title Insurance Company, 11711 N. Pennsylvania Street, Suite 110,
Indianapolis, Indiana 46032, or another location selected by both Seller and Buyer, on or before
September 3, 1998 (the "Closing Date"), unless Buyer and Seller shall agree upon a later date for the
Closing.
11. Closing Documents. At the Closing, Seller shall execute and deliver to Buyer (a) a
general warranty deed conveying the Property to Buyer subject only to the permitted exceptions and
otherwise free and clear of all liens and encumbrances except such as have been approved in writing
by Buyer, (b) a Vendor's Affidavit in a form satisfactory to the Buyer and the Title Insurer, (c) a
Certification of Non-Foreign Status pursuant to Section 1445(b)(2) of the Intemal Revenue Code,
if requested, (d) an IRS Form 10995 Disclosure Statement (if required under the Intemal Revenue
Code), (e) a closing statement, and (f) such other instruments, certificates or affidavits as may be
provided herein or as Buyer or Title Insurer may reasonably request to effect the intention of the
parties hereunder.
12. Possession. Possession of the Property shall be delivered to Buyer on the Closing
Date in the same condition as it is now, free and clear of the claims of any other party.
13. Rights and Obligations. The rights and obligations of Seller and Buyer herein
contained shall inure to the benefit of and be binding upon the parties hereto and their respective
personal representatives, heirs, successors and assigns.
14. Notices. All notices required or permitted to be given hereunder shall be in writing
and delivered either in person or by certified or registered first-class prepaid mail, retum receipt
requested, to Seller or Buyer 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 paragraph 14.
Seller:
Bay Communities Limited Partnership
10415 N. College Avenue
Indianapolis, Indiana 46280
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Buyer:
City of Carmel, Indiana
One Civic Square
Carmel, Indiana 46033
Attn: City Attorney
Any notice given in accordance with this paragraph 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.
15. Representation Regarding Hazardous Waste. To its knowledge, Seller hereby
warrants and represents to Buyer as follows: (a) the Property does not qualify as "property" under
the Indiana Responsible Property Transfer Law (I.C. 13-25-3), and no Environmental Disclosure
Document need be provided pursuant thereto; (b) the Property is not in any way contaminated with
any hazardous substance; (c) the Property does not appear on any state or federal CERCLA
(Comprehensive Environmental Responsibility, Compensation, and Liability Act or Superfund) lists;
(d) there is no asbestos or PCP's on the Property; (e) there is no underground storage tank on the
Property; (f) neither Seller nor any of Seller's employees, agents, licensees or invitees have placed
or permitted the placement of any hazardous substances in, on or over the Property; (g) to the best
of Seller's knowledge, no other party has placed any hazardous substances in, on or over the
Property; (h) the Property has not been used as a plant or site where hazardous substances are
subjected to treatment, storage, disposal or recovery; (i) the Property is not subject to any federal,
state or local "Superfund" lien, proceedings, claim, liability or action, or the threat or likelihood
thereo f, for the clean-up, removal or remediation o f any such hazardous substance from the Property;
(j) by acquiring the Property, Buyer will not incur or be subjected to any liability for the clean-up,
removal or remediation of any hazardous substance from the Property or any liability, cost or
expense for the removal of any underground storage tank from the Property; and (k) Seller shall
indemnify, defend and hold Buyer harmless from and against any and all claims, demands, liabilities,
damages, suits, actions, judgments, fines, penalties, loss, costs and expense (including, but not
limited to, attomeys' fees) arising or resulting from, or suffered, sustained or incurred by Buyer as
a result (direct or indirect) of the untruth or inaccuracy of any of the foregoing matters represented
and warranted by Seller to Buyer or the breach of any of the foregoing covenants and warranties of
Seller, which indemnity shall survive the Closing hereof.
The fact that Buyer undertakes or obtains any environmental audit or assessment of the
Property shall not release or relieve Seller of or from any of the foregoing covenants, representations
and warranties. In the event that any such environmental audit or assessment reflects that any of the
foregoing representations and warranties are not true and correct, Seller immediately shall reimburse
Buyer for the cost of such environmental audit or assessment, which reimbursement shall be in
addition to all other rights and remedies of Buyer against Seller. The terms "hazardous substance,"
"release," and "removal" as used herein shall have the same meaning and definition as set forth in
paragraphs (14), (22), and (23), respectively, of Title 42 U.S.C. §9601 and I.C. 13-7-8.7-1; provided,
however, that the term "hazardous substance" as used herein shall also include "hazardous waste"
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as defined in paragraph (5) of 42 U.S.C. §6903 and "petroleum" as defined in paragraph (8) of 42
U.S.C. §6991. The term "underground storage tank" as used herein shall have the same meaning and
definition as set forth in paragraph (1) of 42 U.S.C. §6991.
16. Further Representations and Warranties of Seller. Seller hereby represents and
warrants that:
(a) The execution, delivery and performance by Seller of its obligations underthis
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.
(b) Seller has, as of the Agreement Date, and will have as of the date of the
Closing, good, marketable and indefeasible title to the Property, subject only to' those exceptions
previously approved by Buyer.
(c) To Seller's knowledge, there is no litigation or proceeding pending or
threatened against or relating to Seller, the Property or the use thereof, nor does Seller know of or
have reasonable grounds to know of any basis for any such action or claim.
~(d) There are no liens or other encumbrances against the Property which will
remain after the Closing.
17. 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 and shall not be merged in the deed or other instruments of conveyance.
18. Assignment. Neither party may assign this Agreement without the consent of the
other party.
19. Complete Agreement. This Agreement represents the entire agreement between
Seller and Buyer 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
Buyer.
20. Authorized Signatories. The persons executing this Agreement for and on behalf of
Buyer and Seller each represent that they have the requisite authority to bind the entities on whose
behalf they are signing.
21. 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
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provision hereof, and this Agreement shallbe construed as if such invalid or unenforceable provision
had never been contained herein.
22. Use of Brokers. Each party represents and warrants to the other that it has dealt with
no broker, finder or other person with respect to this Agreement or the transactions contemplated
hereby. Seller and Buyer 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 deemed to include the payment of reasonable attomey's fees and court
costs incurred in defending any such claim.
23. Attorney Fees. In the event that either party shall bring an action or legal proceeding
for an alleged breach of any provision of this Agreement or any representation, warranty, covenant
or agreement herein set forth, or to enforce, protect, determine or establish any term, covenant or
provision of this Agreement or the fights hereunder of either party, the prevailing party shall be
entitled to recover from the nonprevailing party, as a part of such action or proceedings, or in a
separate action brought for that purpose, reasonable attorney fees and costs, expert witness fees and
court costs as may be fixed by the court or jury.
24. Governing Law: Construction.
(a) This Agreemeht shall be interpreted and enforced according to the laws ofthe
State of Indiana, except for its conflict of laws provisions.
(b) All headings and sections ofthis 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 ofthis Agreement are intended to be for the sole benefit ofthe
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.
#23923vi -REAL ESTATE PURCHASE AGREEMENT - 7 -
BOSE
McKINNEY
& EVANS
ATTORNEYS AT LAW
T~,,,,,,y K.
Direct Dial (317) 574-3708
March 1 O, 1999
Ms. Rebecca Martin
Office of the Clerk-Treasurer
City of Carmel
One Civic Square
Carmel, Indiana 46032
Re: City of Carmel Purchase of Lot 1 Carmel Station from Bay Communities
Dear Rebecca:
Pursuant to our telephone conversation, I am enclosing the original executed Real Estate
Purchase Agreement for the above-referenced transaction.
If you need any further information, please feel flee to call me at 574-3708 or my assistant,
Dianne Henry, at 574-3711.
TKH/edh
Enclosure
Sincerely,
2700 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46204
(317) 684-5000
FAX (317) 684-5173
North
8888 Keystone Crossing
Suite 1500
Indianapolis. Indiana 46240
(317) 574-3700
FAX (317) 574-3716