HomeMy Public PortalAbout005-2020 - Transfer Real Estate to County EDC BOARD OF PUBLIC WORKS AND SAFETY
CITY OF RICHMOND,INDIANA
RESOLUTION NO. 5-2020
A RESOULUTION AUTHORIZING THE SALE OF REAL ESTATE
WHEREAS, The Board of Public Works and Safety ("Board") is the disposing agent for
real property owned and to be transferred by the City of Richmond, Indiana
("City") pursuant to the provisions of Indiana Code (IC) 36-1-11, et. seq.
(The "Act"); and
WHEREAS, The City of Richmond, Indiana (the "City") desires to encourage the
development of certain business enterprises within the Midwest Industrial
Park; and
WHEREAS, It is the primary purpose of the Economic Development Corporation of
Wayne County, Indiana to assist government in planning and implementing
economic development projects; and
WHEREAS, The City has requested the assistance of the Economic Development
Corporation of Wayne County, Indiana, in furthering the economic
development of the Midwest Industrial Park (Phase II), specifically Lot 2 of
Section 1 of said Phase II; and
WHEREAS, The Economic Development Corporation of Wayne County, Indiana, has
entered into a Real Estate Purchase Agreement with Element 13, LLC,
("Purchasers" or "Element 13, LLC") for the initial sale of a portion of the
parcel of said real estate containing 15.5 acres for the purchase price of Eight
Thousand Five Hundred Dollars ($8,500.00) per acre, a copy of which
Purchase Agreement is attached hereto as Exhibit A; and
WHEREAS, Said Purchase Agreement (Exhibit A) and transaction includes a Right of
First Refusal in favor of Element 13, LLC, for certain remaining acreage on
the same Lot 2 of Section 1 of Phase II, consisting of the approximate
remaining 17 acres contained in said Lot, which acreage is in addition to the
initial 15.5 acres being purchased by Element 13, LLC, and a copy of the
Right of First Refusal pertaining to potential future transfer(s) of the
approximate 17-acre remaining in Lot 2 is attached hereto as Exhibit B; and
WHEREAS, To complete the initial transaction for the 15.5 acres as outlined in this
Resolution and as outlined and described in the Purchase Agreement, it is
necessary for the City to transfer the initial 15.5 acre parcel to the Economic
Development Corporation of Wayne County, Indiana; and
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WHEREAS, Upon sale of the initial 15.5 acre parcel to Element 13, LLC, the Economic
Development Corporation of Wayne County, Indiana will remit the purchase
price to the City, without deduction of the cost of all endorsements to the
Owner's Policy of Title Insurance requested by Element 13, LLC, without
deduction of the cost of all recording transfers, without deduction of the cost
of recording any mortgage required by Element 13, LLC's lender, if any, and
without deduction of one-half(1/2) of the closing or escrow fee, if any, which
costs shall be borne by Element 13,LLC, as set forth in Exhibit A; and
WHEREAS, A Special Warranty Deed, will be prepared to convey the above-referenced
initial 15.5 acres of real estate described in Exhibit A to the Economic
Development Corporation of Wayne County, Indiana.
NOW, THEREFORE, BE IT RESOLVED by the Board of Public Works and Safety of Richmond,
Indiana, that said Board approves the following document associated with the transfer of the initial
15.5 acres of Lot 1 of Section 1 of Phase II of the Midwest Industrial Park to the Economic
Development Corporation ("EDC") of Wayne County, Indiana, and the subsequent transfer of the
initial 15.5 acres to Element 13, LLC, and approves the following document associated with the
potential transfer(s) of the approximate remaining 17 acres of Lot 2 of Section 1 of Phase II of the
Midwest Industrial Park:
1. Real Estate Purchase Agreement between the Economic Development
Corporation of Wayne County, Indiana, and Element 13, LLC (attached
hereto as Exhibit A); and
2. Agreement Granting Right of First Refusal to Purchase Real Estate between
the Economic Development Corporation of Wayne County, Indiana, and
Element 13,LLC (attached hereto as Exhibit B); and
NOW, THEREFORE, BE IT FURTHER RESOLVED by the Board of Public Works and Safety of
Richmond, Indiana, that said Board approves, subject to the requirements necessary for the
conveyance of said property, with said requirements to be determined and approved by the Law
Department of the City of Richmond, Indiana, the conveyance of the initial 15.5 acre real estate
parcel described in the attached Exhibit A to the Economic Development Corporation of Wayne
County, Indiana, for subsequent sale to Element 12, LLC, for the purchase price of Eight Thousand
Five Hundred Dollars ($8,500.00) per acre, without deduction of the cost of all recording transfers,
without deduction of the cost of recording any mortgage required by Element 13, LLC's lender, if
any, and without deduction of one-half(1/2) of the closing or escrow fee, which costs shall be borne
by Element 13, LLC, as set forth in Exhibit A, and with the net purchase price to be remitted by the
Economic Development Corporation of Wayne County, Indiana, to the City of Richmond, Indiana,
after closing.
NOW, THEREFORE, BE IT FURTHER RESOLVED by the Board of Public Works and Safety of
Richmond, Indiana, that the Board President, Vicki Robinson, for and on behalf of the City of
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Richmond, Indiana, acting through its Board of Public Works and Safety of Richmond, Indiana, be
authorized to sign the Special Warranty Deed conveying the initial 15.5 acre parcel of real estate set
forth in Exhibit A to the Economic Development Corporation of Wayne County, Indiana, and to sign
any and all other documents necessary or required to effectuate the sale and transfer of the real estate
described in Exhibit A to the Economic Development Corporation of Wayne County, Indiana.
NOW, THEREFORE, BE IT FURTHER RESOLVED by the Board of Public Works and Safety of
Richmond, Indiana, that the City Attorney, Andrew.J. Sickmann, or the Assistant City Attorney,
Kimberly A. Vessels, and Mayor, David M. Snow, and Beth Fields, Director of the Department of
Infrastructure and Development, be authorized to take all other action necessary (including, but not
limited to, signing any and all documents) to effectuate the sale and transfer of the initial 15.5 acre
parcel of real estate described in Exhibit A to the Economic Development Corporation of Wayne
County, Indiana in order that the Purchase Agreement attached as Exhibit A be consummated.
Passed and adopted this day of /ley 2020, by the Board of Public Works
and Safety.
Vicki Robinson,President
Emily Palmer, Member
Matt Evans, Member
APPROVED:
By: _ , Mayor
dM. S
Date: 0 — z6 77-0-2 tl
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•
AGREEMENT TO
SELL AND PURCHASE REAL ESTATE
This Agreement to Sell and Purchase Real Estate("Agreement")is made and entered into on this day
of , 2020 (the "Effective Date"), by and between the ECONOMIC DEVELOPMENT
CORPORATION OF WAYNE COUNTY, INDIANA, an Indiana nonprofit corporation, hereinafter
referred to as "Seller", and ELEMENT 13, LLC, a limited liability company duly organized and existing
under the laws of the State of Indiana,hereinafter referred to as"Purchaser".
WITNESSETH:
1. Sale and Purchase. Seller agrees to sell and Purchaser shall purchase, subject to
the terms and conditions herein,the following described real estate in Wayne County, in the State
of Indiana,to-wit:
"Approximately 15.5 acres in equal width off the south side of Lot 2 of
Section 1 Phase II of the replat of the Midwest Industrial Parks as
shown in Instrument No. 2016004156 recorded in the Office of the
Recorder of Wayne County,Indiana on May 27,2016"
together with and/or subject to all easements, rights and privileges appurtenant thereto
(collectively,the"Property").
The parties hereto agree that the exact acreage and description shall be determined
by a land survey mutually acceptable to both parties and that the costs of the land survey shall be
paid in equal shares by both parties.
2. Consideration. For and in consideration of a sum equal to $8,500.00 per acre, as
determined by the land survey, Seller agrees to convey the Property to Purchaser subject to the
terms herein provided.
3. Due Diligence Period. Purchaser's obligation under this Agreement is expressly
contingent upon Purchaser's satisfaction or waiver, each in its sole and absolute discretion, of all
matters pertaining to the condition of the Property including,without limitation,matters pertaining
to soils, environmental, and any other physical conditions and/or limitations pertaining to the
Property which affect or impact the development of and construction on the Property for
Purchaser's intended use.
The foregoing conditions shall be satisfied or waived by Purchaser, in its sole and
absolute discretion, within ninety (90) days after the effective date of this Agreement (the "Due
Diligence Period").
•
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4.Title Commitment. Within ten(10)business days following the Effective Date, Seller,
at its sole cost and expense, shall order a standard form ALTA Owner's Commitment for title
insurance (the "Commitment") covering the Property and issued by Abstracts of Richmond, Inc.
(the "Title Company"). Seller shall provide a copy of the Commitment together with copies of all
instruments referred to as exceptions to the Purchaser. Purchaser shall pay for any endorsements
to the policy of title insurance which it shall request. Within ten (10) business days following
Purchaser's receipt of the Commitment, Purchaser shall give notice in writing to Seller of any
defects in or objections to the Commitment ("Purchaser's Title Review"). Seller shall, within
twenty (20) business days following receipt of such notice, or such time as may be extended by
Purchaser, exert its reasonable and diligent efforts to clear the title of the defects and objections so
specified. Failure to exert such effort to clear the title of defects and objections within twenty-one
(20) business days, or such time as may be extended by Purchaser, shall constitute a default on the
part of the Seller and be subject to the provisions of paragraph 9 contained herein. Except for (i)
matters to which notice has been given by Purchaser, and(ii) lien and lease exceptions as defined
below,such exceptions shall be included in the terms "Permitted Exceptions" as used herein.
5. Title Policy,Deed and Right of First Refusal.At the Closing, Seller shall convey
the Property to Purchaser, by Special Warranty Deed (the "Deed") in a form acceptable to
Purchaser. It shall be a condition of Purchaser's obligation to consummate the transaction
contemplated hereby that, upon the recording of the Deed, the Title Company shall issue to
Purchaser an ALTA Owner's Policy of Title Insurance, with an effective date and time as of the
date and time of the recording of the Deed(the "Title Policy") in the amount of the Purchase Price,
insuring title to the Property in Purchaser, free and clear of any and all encumbrances except for
the Protective Covenants and Restrictions of the Midwest Industrial Park and the Permitted
Exceptions. Seller agrees to deliver to the Title Company,on or prior to Closing Date,any affidavit
reasonably required by the Title Company to cause the Title Company to delete the so-called
"standard exceptions" from the Title Policy (the "Title Company Affidavit"). Seller shall deliver
to Purchaser and Title Company copies of the deed and all other documents required for closing
at least five (5) days prior to Closing. Delay in Seller's delivery of such instruments may at
Purchaser's option result in a delay of the Closing equivalent to the delay in the delivery of the
instruments.
The parties further agree that upon payment of the Purchase Price by Purchaser and
delivery of the Deed by Seller, Seller shall also execute and deliver to Purchaser a Right of First
Refusal granting to Purchaser the Right of First Refusal to purchase all or part of the remaining
approximately 17 acres in Lot 2 at the Purchase Price of$8,500.00 per acre. The Right of First
Refusal will be for a term of five (5) years and contain a requirement that Purchaser commence
development of the acreage within 24 months from the date of purchase. The Right of First Refusal
shall not be assignable by Purchaser unless Purchaser shall sell or transfer all of its assets located
in Wayne County, Indiana to a third party, in which event the Right of First Refusal may be
transferred only upon the prior written consent of Seller which consent shall not be unreasonably
withheld. Further, EDC shall have the right to repurchase the acreage for $8,500.00 per acre in
the event Purchaser does not commence development within 24 months after it has acquired title.
6. Risk of Loss; Condemnation. Until the Closing,the risk of loss or damage to the
Property or its taking or damage by condemnation shall be on Seller. If any loss or damage occurs
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prior to the Closing, then Purchaser shall have the option of (i) canceling and rescinding this
Agreement or(ii)accepting the Property,in which event all proceeds of insurance shall be assigned
to Purchaser and there shall be a credit against the Purchase Price due hereunder equal to the
amount of any insurance deductible and the cost of any uninsured damage.If,prior to the Closing,
all or any part of the Property shall be condemned by governmental or other lawful authority,
Purchaser shall have the option of(a) completing the purchase, in which event all condemnation
proceeds or claims thereof shall be assigned to Purchaser, or (b) canceling this Agreement, in
which event this Agreement shall be terminated with neither party having any rights against the
other.
7. Real Property Taxes.Real property taxes, if any, shall be prorated and adjusted on
the basis of a calendar year,Seller to have the last day,to and including the date of Closing.Accrued
taxes for all prior years shall be paid by Seller. If the Closing shall occur before the tax rate is fixed
for the then-current year, the apportionment of taxes shall be upon the basis of the tax rate for the
preceding year applied to the latest assessed valuation. Assessments, either general or special, for
improvements completed prior to the date of Closing,whether matured or unmatured, shall be paid
in full by Seller.All other assessments shall be paid by Purchaser.
8. Brokerage Fees. Purchaser and Seller represent to each other that neither of them
has employed a real estate broker with respect to this transaction.
9. Default:
a. Default by Purchaser. If Purchaser shall default in the performance of
any of the terms and conditions of this Agreement, or if the Closing shall
not occur through the fault of Purchaser, Seller may, as its sole remedy,
cancel this Agreement.
b. Default by Seller. If Seller fails or refuses to fully comply with the
terms of this Agreement, for any cause other than Purchaser's default
hereunder, Purchaser may, at its option, (a) rescind this Agreement and
assert a claim for actual damages directly arising from such breach,
including all costs and expenses incurred by the Purchaser in connection
with this Agreement, including all due diligence, survey and title insurance
expenses, all costs and expenses in connection with Purchaser's financing
and all of Purchaser's reasonable attorneys' fees and expenses, or (b)
proceed with this Agreement and take the Property as it is, as its sole
remedy.
c. Notice of Default. In the event either party is in default of any
provision hereof, the non-defaulting party, as a condition precedent to its
remedies, must give the defaulting party written notice of the default. The
defaulting party shall have ten (10) business days from the receipt of such
notice to cure the default, or, if the default cannot reasonably be cured
within ten (10) business days, the defaulting party shall have ten (10)
business days from receipt of such notice to commence diligent efforts to
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cure the default. If the default is timely cured, this Agreement shall
continue in full force and effect. If the default is not timely cured,the non-
defaulting party may pursue its applicable remedies set forth in this
Agreement.
10. Right of Entry. At any time prior to the Closing, and at Purchaser's sole cost and
expense, Purchaser or its authorized agents shall have the right to enter upon the Property for any
lawful purpose, including, without limitation, making such surveys and site analysis, test borings
and engineering studies and to erecting such signs as Purchaser may deem necessary. The parties
acknowledge that the Subject Property is currently leased to Tom Hutchings for agricultural
purposes and that Seller has reserved the right to withdraw tillable acreage from the terms of the
lease upon sixty (60) days written notice to the farm tenant. Seller agrees to be responsible for and
compensate the farm tenant for any loss of crops due to the withdrawal of tillable acreage from the
farm tenant. Except for any preexisting conditions on the Property, Purchaser shall indemnify and
hold Seller harmless from and against any and all claims and liens arising out of any act or failure to
act of Purchaser or its authorized agents as a result of their respective activities on the Property.
Purchaser's obligation to close is expressly conditioned upon inspection results, which, in the sole
judgment of Purchaser, evidence that the Property is suitable for Purchaser's intended use. When
such reports disclose conditions unsatisfactory to Purchaser, which Seller is unable or unwilling to
correct at Seller's expense,Purchaser may cancel this Agreement by written notice to Seller.
11. Preconditions to Closing.
a. Seller's board of directors must authorize the transaction by proper
resolution.
b. Seller holds an option to purchase the Property from the City of Richmond,
County of Wayne, State of Indiana. Seller enters into this agreement
subject to its ability to exercise its option for the purchase of the Property
from the City of Richmond, County of Wayne, State of Indiana acting by
and through its Board of Public Works and Safety. Seller agrees to give
notice of its intent to exercise its option to purchase the Property from the
City of Richmond, County of Wayne, State of Indiana within twenty (20)
business days from full execution of this Agreement.
c. Purchaser must provide Seller with an original certificate from the Indiana
Secretary of State demonstrating that it is in good standing with the Office
of the Secretary of State of Indiana.
12. Warranties and Representations of Seller. Seller hereby represents and warrants
to Purchaser as follows as of the Effective Date:
a. Organization; Authority. Seller is a duly formed and validly existing
nonprofit corporation under the laws of the State of Indiana. Seller has the
legal power,right and authority to enter into this Agreement and to execute
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and deliver the instruments and documents referenced herein, and to
consummate the transaction contemplated hereby.
b. Due Authorization; Binding Agreement. The execution, delivery and
performance of this Agreement by Seller has been duly and validly
authorized by all necessary action of Seller. This Agreement has been duly
executed and delivered by Seller and constitutes the legal,valid and binding
obligation of Seller, enforceable against Seller in accordance with the terms
hereof, subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors' rights.
c. Title. Seller will own at Closing good and marketable title to the Property,
free and clear of all liens and encumbrances, excepting the Permitted
Exceptions.
d. Non-Foreign Status. Seller is not a "foreign person" within the meaning of
Section 1445(f) of the Internal Revenue Code (the "Code") and is not a
"foreign partner" within the meaning of Section 1446 of the Code.
e. Legal Actions Regarding Property. There is no legal action, suit or other
legal or administrative proceeding pending or threatened before any court
or administrative agency relating to the Property. Seller has received no
written notice of any default, failure or breach by Seller under any
covenants,conditions,restrictions,rights-of-way or easements affecting the
Property or any portion thereof which remains uncured. To Seller's
knowledge, there are no violations of any fire, health, safety, pollution,
environmental, zoning or other laws, ordinances, rules or regulations with
respect to the Property, which have not been heretofore entirely corrected;
and Seller has not received any notice or summons issued by any federal,
state, county or municipal authority alleging a violation of any fire,health,
safety,pollution, environmental, zoning or other laws, ordinances, rules or
regulations with respect to the Property.
f. Environmental Matters. Seller represents and warrants to Purchaser,to the
best of Seller's knowledge,that:(i)that Seller has received no written notice
that any part of the Property is located within an area that has been
designated by the Federal Emergency Management Agency, the Army
Corps of Engineers or any other governmental body as located in a flood
plain area or a "wetlands" area; (ii)there are no underground storage tanks
in the Property; (ii) no leak, spill, release, discharge, emission or disposal
of hazardous or toxic material or substances (as defined under any federal
state or local laws governing the environment)has occurred on the Property;
and (iii) Seller has furnished to Purchaser complete and accurate copies of
all environmental audits, assessments, reports, studies, analyses and
correspondence regarding the Property.
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g. Leases. There are no leases (or other agreements regarding use or
occupancy) of the Property which will be in force at Closing and under
which Seller is the landlord except a crop lease with Tom Hutchings,which
Seller agrees to terminate with respect to the subject property pursuant to
the reserved rights to do so under the crop lease.
h. No Consents or Approval. Subject to Section 11 herein, there are no
consents or approvals required of or from any party to consummate the
transactions contemplated by this Agreement.
Taxes. Seller has paid all real estate and personal property taxes(including
any interest and penalties thereon) currently due and payable with respect
to the Property. There are no valuation complaints or other tax proceedings
by any governmental entity pending or, to the knowledge of Seller,
threatened, with respect to the Property.
j. Assessments. To the best of Seller's knowledge, there are no special or
other governmental, quasi-governmental,public or private assessments for
public improvements or otherwise now affecting the Property (other than
those special assessments or typical municipal maintenance and operation
of such items as sewer,water, drainage and the like which appear annually
as a part of the real estate tax bill affecting the Property).
13. Warranties and Representations of Purchaser. Purchaser hereby represents and
warrants to Seller as follows as of the Effective Date:
a. Organization; Authority. Purchaser is a duly formed and validly existing
limited liability company under the laws of the State of Indiana. Purchaser
has the legal power, right and authority to enter into this Agreement and to
execute and deliver the instruments and documents referenced herein, and
to consummate the transaction contemplated hereby.
b. Due Authorization; Binding Agreement. The execution, delivery and
performance of this Agreement by Purchaser has been duly and validly
authorized by all necessary action of Purchaser. This Agreement has been
duly executed and delivered by Purchaser, and constitutes the legal, valid
and binding obligation of Purchaser, enforceable against Purchaser in
accordance with the terms hereof, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating
to or affecting creditors' rights.
c. Non-Foreign Status. Purchaser is not a"foreign person"within the meaning
of Section 1445(f) of the Code and is not a "foreign partner" within the
meaning of Section 1446 of the Code.
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14. Notices. All notices and other communications required or permitted to be given
hereunder shall be in writing and shall be mailed by certified or registered mail,postage prepaid,
or by a nationally recognized overnight carrier, addressed as follows:
If to Seller: If to Purchaser:
The Economic Development Corporation Michael D. Rasmussen and
Of Wayne County,Indiana Chris Rasmussen
Attention: Valerie Shaffer,President Element 13,LLC
900 North E Street, Suite 100 7268 State Road 13
Richmond, IN 47374 Pendleton, IN 46064
with a copy to: with a copy to:
George M. Sowers,Esq. Alex C. Intermill
KNOLL,KOLGER, SOWERS Bose McKinney &Evans LLP
&METZGER 111 Monument Circle—Ste. 2700
111 South 7th Street, Suite A Indianapolis, IN 46204
Richmond, IN 47374
Notice shall be deemed to have been given upon evidence of receipt or refusal.
15. Closing. The Closing shall take place at a place and time mutually agreed upon
by the parties,within ten(10)business days following the expiration of the Due Diligence Period.
16. Closing Costs.Notwithstanding anything to the contrary contained herein,the
Closing costs shall be paid as follows:
By Seller:
a. The cost of releasing any mortgage, financing statement, other debt security or
any attachments, assessments, delinquent real estate taxes or mechanic's or
materialmens' liens outstanding against the Property;
b. Cost of title examination of the Property, Commitment and Title Policy; and
c. Preparation of Special Warranty Deed.
d. One-half(1/2) of the closing or escrow fee, if any.
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By Purchaser:
a. The costs of all endorsements to the Owner's Policy of Title Insurance requested
by Purchaser;
b. All recording costs to record the Deed and any mortgage required by Purchaser's
lender, if any;
c. One half of the closing or escrow fee, if any.
17. Prevailing Party. Any party to this agreement who is the prevailing party in any •
legal or equitable proceeding against the other party brought under or with relation to the
agreement or transaction shall be additionally entitled to recover court costs and reasonable
attorney's fees from the non-prevailing party.
18. Entire Agreement. This Agreement contains the entire agreement between Seller
and Purchaser, and there are no other terms, conditions, promises, undertakings, statements or
representations, expressed or implied, concerning the sale contemplated by this Agreement.
19. Headings; Interpretation.The headings to the Sections hereof have been inserted
for convenience of reference only and shall in no way modify or restrict any provisions hereof or
be used to construe any such provisions. The term "including," when used in this Agreement,
means "including, without limitation," and shall be construed as a term of illustration, and not a
term of limitation. Whenever reference is made to a number of"days" in the computation of time
hereunder, such reference shall mean "calendar days" unless otherwise indicated. Wherever any
period of time is specified herein for the taking of any action or the giving of any notice,the period
shall be computed by excluding the day upon which the period is specified to commence and
including the last day of the period specified. Whenever the time for performance of an obligation
occurs or expires on a day other than a business day, the time for performance thereof shall be
extended to the next business day.
20. Modifications. The terms of this Agreement may not be amended, waived or
terminated orally, but only by an instrument in writing signed by both Seller and Purchaser.
21. Governing Law; Waiver of Jury Trial.This Agreement shall be governed by the
laws of the State of Indiana. The parties hereby waive any right to trial by jury.
22. Construction. This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that it may have been prepared by counsel
for one of the parties, it being recognized that each of Seller and Purchaser have contributed
substantially and materially to the preparation of this Agreement.
23. Survival. The parties agree that, except as otherwise specifically provided
herein, each of the covenants, representations and warranties set forth in this Agreement shall
survive the Closing for a period of one (1) year.
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24. Severability. If any terms, covenant or condition of this Agreement, or the
application thereof to any person, party or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby; and each term, covenant or condition of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
25. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and both of which together shall form a single instrument. The
execution of this Agreement by facsimile or other electronic form (e.g. PDF) of signature shall
be binding and enforceable as an original; provided, that any party delivering a facsimile or
electronic document shall thereafter execute and deliver to the other party an original
instrument, as soon as reasonably possible thereafter.
24. Reporting. The Escrow Agent is hereby designated the "real estate reporting
person" for purposes of Section 6045 of Title 26 of the United States Code and Treasury
Regulation 1.6045-4, if applicable. Following the Closing, Purchaser shall cause to be filed a
Form 1099 information return (or other applicable form) by the date required by Law. Seller
shall cooperate with Purchaser in connection with all real estate reporting requirements. This
Section shall survive the Closing.
IN WITNESS WHEREOF,the parties hereto have each caused this Agreement to be duly
executed as of the day of ,2020.
SELLER:
ECONOMIC DEVELOPMENT CORPORATION
OF WAYNE COUNTY, INDIANA, an Indiana
nonprofit corporation
By:
Name:
Title:
PURCHASER:
ELEMENT 13,LLC .
By:
Name:
Title:
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RIGHT OF FIRST REFUSAL
This agreement is made and entered into this day of ,2020,by and
between the ECONOMIC DEVELOPMENT CORPORATION OF WAYNE COUNTY,
INDIANA (hereinafter "EDC") and ELEMENT 13, LLC, an Indiana limited liability company
(hereinafter"Element 13").
WITNESSETH:
WHEREAS, Element 13 has expressed an interest in acquiring that part of Lot 2 in the
Midwest Industrial Park located in Wayne County, Indiana which is owned by the City of
Richmond,Indiana and hereinafter referred to as the "Subject Property"; and
WHEREAS, the EDC is the marketing agent for the City of Richmond, Indiana and holds
an option to purchase the Subject Property from the City subject to the approval of the Board of
Public Works and Safety,
NOW, THEREFORE, the parties mutually agree as follows:
1. GRANT. For and in consideration of the sum of Ten Dollars ($10.00), EDC
grants to Element 13 a Right of First Refusal for the purchase of the Subject
Property.
2. NOTICE OF OFFER.In the event that the EDC or the City of Richmond, Indiana
shall receive from a third party, at any time during this agreement, a bona fide offer
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to purchase part or all of the Subject Property at a specified price, whether such
price be fixed by the EDC or by a third party, and in the event that the EDC or the
City of Richmond, Indiana shall decide to sell the same for such amount,the EDC
shall promptly provide written notice of the terms of such offer to Element 13,
indicating that the EDC and/or the City is willing to sell the Subject Property for
the price offered, Element 13 shall have the right of first refusal and the privilege
to purchase the Subject Property at a price of$8,500.00 per acre, subject to all
easements, covenants and restrictions of record.
3. EXERCISE OF RIGHT. Upon receipt of Notice of a Proposed Sale by the
EDC and/or the City of Richmond,Indiana,Element 13 shall have ten(10)business
days to give the EDC written notice of its intent to exercise its right of first refusal.
Element 13 shall purchase said property within thirty (30) days after giving notice
of its intent to exercise its right of first refusal. In the event that Element 13 shall
not give the EDC notice within said ten (10) business day period of its election to
purchase for the amount specified and upon the terms and conditions of the third
party offer, Element 13 shall not be obligated to purchase, and the EDC and/or the
City may sell the Subject Property to the party making the offer. If for any reason
the Subject Property is not sold to a third party, notice of any subsequent bona fide
VEXt--EIT B PAGE a- OF to
offer,acceptable to the EDC and/or the City, shall be given to Element 13 upon the
same terms of acceptance or rejection as provided above.
4. REQUIREMENT UPON ELEMENT 13,LLC. In the event, after written
notice of a third party offer, Element 13 shall purchase part or all of the Subject
Property, the Subject Property, when conveyed to Element 13, shall contain a
covenant that Element 13 must commence development of the Subject Property
within 24 months after it acquires title. In the event that Element 13 shall fail to
commence development of the Subject Property within 24 months after it acquires
title,the EDC shall have the right to repurchase the acreage for the same price paid
by Element 13.
5. ASSIGNMENT PROHIBITED. This Right of First Refusal shall not be
assignable by Element 13 unless Element 13 shall sell or transfer all of its assets
located in Wayne County,Indiana to a third party,in which event this Right of First
Refusal may be transferred only upon the prior written consent of EDC which shall
not be unreasonably withheld.
6. SALE TO THIRD PARTY. In the event, after written notice, Element 13 shall
fail, or elect not to exercise its right of first refusal, this agreement shall become
B PAGE 3 OF C
void upon a conveyance of the Subject Property by EDC and/or the City to said
third party.
7. TERMINATION. In all events, this agreement shall terminate five (5) years
after full execution by the parties.
8. BINDING EFFECT. This agreement shall be binding upon and shall inure to the
benefit of Element 13, LLC, the EDC and the City of Richmond, Indiana.
ECONOMIC DEVELOPMENT CORPORATION
OF WAYNE COUNTY, INDIANA
By:
Valerie Shaffer, President
ELEMENT 13, LLC
By:
Name
Title
STATE OF INDIANA,Wayne County,
Before me the undersigned,a Notary Public for Wayne County,State of Indiana,personally
appeared Valerie Shaffer, as President, a duly authorized officer of the Economic Development
EXHB�IT PAGE y OF ie
Corporation of Wayne County,Indiana,and,being first duly sworn by me upon her oath, says that
the facts alleged in the foregoing instrument are true.
Notary Public of Wayne County, Indiana
STATE OF INDIANA, County,
Before me the undersigned,a Notary Public for Wayne County,State of Indiana,personally
appeared , as __ , a duly
authorized member of Element 13, LLC, and, being first duly sworn by me upon his oath, says
that the facts alleged in the foregoing instrument are true.
Notary Public of County,Indiana
1EXHIBI i 3 PAGE O'F C
This instrument prepared by George M. Sowers,Attorney at Law.
1EHIBIT 13 PAGE tt ®F (1 1