HomeMy WebLinkAboutFOURTH AMENDMENT HOGAN FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FOU TH AME M 'NT TO DEVELOPMENT AGREEMENT (this"Amendment") is made
effective as of the.0t day of 0 , 2018 (the "4th Amendment Effective Date"), by
and between HOGAN PROPERTY DEVELOPMENT CO., a Kentucky corporation ("Developer"), and
THE CITY OF JEFFERSONVILLE REDEVELOPMENT COMMISSION,a municipal body politic of Indiana
("Commission").
RECITALS:
A. Commission and Developer entered into that certain Development Agreement dated
June 28, 2017, as amended by that crtain First Amendment to Development Agreement dated December
19,2017,as further amended by that certain Second Amendment to Development Agreement dated June
27,2018,and as further amended by that certain Third Amendment to Development Agreement dated July
25, 2018 (collectively, the "Agreement"), for Developer's purchase of certain real property located in the
City of Jeffersonville, County of Clark, State of Indiana, as more particularly described in the Agreement
(the Property"), which Developer plans to develop as a mixed-use commercial real estate development
project that may include hotel, office, restaurant, retail,and other commercial improvements and uses(the
"Project')
B. As Developer has contined to work through its Project Plans and Developer Closing
Conditions for the Property and both parties have worked to fulfill their obligations under the Agreement,
the parties have determined that the Closing on the Property should be bifurcated into two separate closings
for the northern and southern portions of the Property,which requires multiple revisions to the Agreement,
including(without limitation)adjustment of some of the time periods and deadlines thereunder; and
C. To accomplish such adjustments,Commission and Developer agree that it is of mutual benefit
for the parties to revise the Agreement as hereinafter provided.
NOW THEREFORE, in consideration of the foregoing and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Recitals. The recitals set forth above are hereby incorporated by this reference with the same force
and effect as though fully set forth herein.
2. Defined Terms. All capitalized terms used but not defined or otherwise amended herein shall have
the meaning assigned to such term in the Agreement.
3. New Definitions. The following additional definitions shall be incorporated into the Agreement and this
Amendment
"Northern Parcels"shall mean Lots 1, 2, 3 and 4 as depicted on the draft Preliminary Plat prepared
by Land Design and Development, Inc. dated September 4, 2018, and submitted to the Jeffersonville
Plan Commission for approval,which shall be recorded prior to any Closing in the Office of the Recorder
of Clark County, Indiana.
'Southern Parcels'shall mean Lots 5,6, 7, 8 and 9 as depicted on the draft Preliminary Plat prepared
by Land Design and Development, Inc. dated September 4, 2018, and submitted to the Jeffersonville
Plan Commission for approval,which shall be recorded prior to any Closing in the Office of the Recorder
of Clark County. Indiana.
4. Bifurcation of Property and Closing. The parties hereby acknowledge and agree that any Closing will
be bifurcated into two(2)separate closings—one for the Northern Parcels and a second on a later date
for the Southern Parcels. To accommodate such bifurcation of any Closing on the Property and the
related division of the Property into the Northern Parcels and the Southern Parcels, Commission and
Developer hereby acknowledge and agree that, in general and regardless of whether a specific
amendment of an applicable provision of the Agreement is set forth below,the term'Property"as used
throughout the Agreement shall mean,as the context may require or indicate,both the Northern Parcels
and the Southern Parcels or either the Northern Parcels or the Southern Parcels.
5. Purchase Price. Section 1.1 of the Agreement is hereby deleted in its entirety and replaced with the
following:
1.1 Purchase Price. The total purchase price to be paid by Developer to Commission for
the Property shall be One Million Two Hundred Thousand and No/100 Dollars ($1,200,000.00)
(the "Purchase Price"), which Purchase Price shall be allocated such that Eight Hundred
Thousand and No/100 Dollars($800,000.00) is payable for the Northern Parcels(the"Northern
Parcels Purchase Price") and Four Hundred Thousand and No/100 Dollars ($400,000.00) is
payable for the Southern Parcels(the"Southern Parcels Purchase Price"),and which Purchase
Price shall be payable as follows:
(a) Earnest Money Deposit. Within five(5)days of the Effective Date,Developer will
deposit, with Title Agency Support, LLC or such other agent of Title Company
acceptable to Developer (the "Escrow Agent"), an earnest money deposit of
Twelve Thousand Dollars ($12,000.00) (the "Earnest Money"), $8,000.00 of
which shall be allocated to the Northern Parcels and$4,000.00 of which shall be
allocated to the Southern Parcels. Except as otherwise provided in this
Agreement, the Developer shall have no right to refund of the Earnest Money
after the Discretionary Termination Date(as defined herein).
(b) Application. If the transactions contemplated by this Agreement close, then the
applicable portion of the Earnest Money shall be credited against the balance of
the Purchase Price for the applicable portion of the Property at such portion's
Closing (as defined herein). In the event the transaction contemplated by this
Agreement does not close, the Earnest Money shall be disbursed as provided in
this Agreement.
(c) Balance of Purchase Price for Northern Parcels. At the Closing on the Northern
Parcels, Developer shall deliver (i) $425,000 of the total Northern Parcel
Purchase Price to Commission in the form of an electronic wire transfer or other
immediately available funds, subject to adjustment for$8,000.00 of the Earnest
Money and other reductions, credits, and pro-rations as set forth in this
Agreement and calculated on the Closing Statement (as defined herein) for the
Northern Parcels and (ii) an unsecured promissory note to Commission for the
balance of the Northern Parcels Purchase Price, the terms for which shall be
mutually agreeable to Developer, Developer's lender and Commission. The
$375,000 balance of the Northern Parcels Purchase Price shall be payable to
Commission on the earlier of(x)the date of the Closing on the Southern Parcels
and(y)within thirty(30)days after the final sale and/or completion of development
(meaning tenants are open and operating thereon)of all of the Northern Parcels.
(d)Balance of Purchase Price for Southern Parcels. Developer shall deliver the Southern
Parcels Purchase Price to Commission at the Closing on such Southern Parcels
in the form of an electronic wire transfer or other immediately available funds,
subject to adjustment for$4,000.00 of the Earnest Money and other reductions,
credits, and pro-rations as set forth in this Agreement and calculated on the
Closing Statement(as defined herein)for the Southern Parcels.
6. Representation on Bifurcation. A new subsection(j)is hereby added to Section 3.1 of the Agreement:
Q} Bifurcation. The Property may be sold in two (2) separate closings, with the
transfer of the Northern Parcels occurring separately and in advance of the
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transfer of the Southern Parcels,and such separate transfers of the Property do
not violate any portion of the representations set forth in subsections(b),(c),(d),
(e)and(g)above.
7. Proiect Plans. The first sentence of Section 4.2 is hereby deleted in its entirety and replaced with the
following: On or before August 31, 2018, Developer shall submit to the Executive Director of
Commission, two (2) complete sets of its preliminary plans and drawings for the Project, which shall
include: (A)a site plan(the"Site Plan"); (B)landscape plan; (C)sign plans; (D)construction schedule
with milestone completion dates; and (E) Developer's construction budget (collectively, the "Project
Plans").
8. Commission Closing Conditions. The first sentence of Section 6.1 is hereby deleted in its entirety and
replaced with the following: Commission's obligation to proceed with a Closing for either the Northern
Parcels or the Southern Parcels is contingent upon satisfaction (or Commission's waiver) of the
following (collectively, the "Commission Closing Conditions"), which must each be satisfied, if
applicable, for the Northern Parcels before the Closing thereon and again for the Southern Parcels
before the Closing thereon:
9. Developer Closing Conditions. The first sentence of Section 6.3 is hereby deleted in its entirety and
replaced with the following: Developer's obligation to proceed with a Closing for either the Northern
Parcels or the Southern Parcels is contingent upon satisfaction(or Developer's waiver)of the following
(collectively,the"Developer Closing Conditions"),which must each be satisfied,if applicable,for the
Northern Parcels before the Closing thereon and again for the Southern Parcels before the Closing
thereon:
10. Environmental Engineer. The parties hereby acknowledge and agree that (i) the reference to the
"Environmental Engineer" in Section 6.3(o)is hereby amended to refer to Linebach Funkhouser, Inc.
as being the Environmental Engineer and(ii)the reference to the"Updated Phase II Assessment'in
Section 6.3(o) is hereby amended to refer to an updated Phase I Environmental Site Assessment for
the Property prepared by the Environmental Engineer.
11. Closing and Closing Date. Article 7 of the Agreement is hereby deleted in its entirety and replaced
with the following:
ARTICLE 7
CLOSING DATE
The closings for the transfers of the Northern Parcels and the Southern Parcels that are
contemplated by this Agreement (as the context may require or indicate, each a °Closing" or
collectively,the"Closing")shall occur at or through the office of the Escrow Agent on a date or
dates mutually agreeable to both Developer and Commission; provided that such date or dates
(as the context may require or indicate,each a"Closing Date"or collectively,the"Closing Date")
shall occur: (A) with regard to the Northern Parcels, (i) within thirty (30) days after all of the
Developer Closing Conditions applicable to such Northern Parcels have been satisfied or waived
by Developer and (ii) notwithstanding any other term or condition of this Agreement, but
nonetheless subject to extension pursuant to Section 6.4, on or before the date eighteen (18)
months after the Effective Date; and (B)with regard to the Southern Parcels,within twelve(12)
months after all of the Developer Closing Conditions applicable to such Southern Parcels have
been satisfied or waived by Developer.
12. Closing Deliveries. The first sentence of Section 9.1 is hereby deleted in its entirety and replaced with
the following: For purposes of this Agreement, a new plat or plats of the Property required by
Developer and recorded prior to any Closing(collectively,the"Property Plat')shall establish the legal
description of the Property and such legal description of the Property shall be used for each Closing,
as applicable in each case for the Northern Parcels or the Southern Parcels, in the Deed, the Title
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Policy (as herein defined), all other Commission Closing Documents and Developer Closing
Documents, and the Closing Statement.
13. Use Covenant. The following clause shall be added to the beginning of subsection (a)(x) in Section
9.1 of the Agreement: with regard to the Closing for the Northern Parcels.
14. Closing Costs. The following sentence shall be added to the beginning of Section 9.2: The costs for
each Closing shall be divided between Commission and Developer in accordance with subsections(a)
and(b)below.
15. Exhibit N. To accommodate the above amendments, Exhibit N to the Agreement is hereby deleted in
its entirety, and the Exhibit N attached hereto is substituted in lieu thereof.
16. Reaffirmation. All terms,covenants and conditions of the Agreement not modified by this Amendment
are hereby ratified by the parties,and the parties hereto confirm that all representations made in Article
3 of the Agreement remain true, correct and complete as of the 4th Amendment Effective Date. In the
event of any inconsistency between the terms of the Agreement and the terms of this Amendment,the
terms of this Amendment shall control.
17. Applicable Law. This Amendment shall be governed by, and construed and enforced in accordance
with, the Applicable Laws of the State of Indiana.
18. Authority. The person(s)executing this Amendment on behalf of Developer hereby acknowledges and
agrees that it is the duly authorized representative of Developer, with full authority to enter into this
Amendment, and that once signed by both parties this Amendment is a valid and legally binding
documents. The person(s) executing this Amendment on behalf of the Commission hereby
acknowledges and agrees that it is the duly authorized representative of the Commission, with full
authority to enter into this Amendment,and that once signed by both parties this Amendment is a valid
and legally binding documents.
19. Binding Effect. All of the representations, warranties, covenants,obligations,terms,and conditions of
this Amendment shall inure to the benefit of, and be binding upon, the parties hereto and their
respective successors and permitted assigns.
20. Counterparts. This Amendment may be executed in one or more counterparts,each of which shall be
considered an original counterpart, and all of which shall be considered to be but one agreement and
shall become a binding agreement when each party shall have executed one counterpart and delivered
it to the other party hereto. Signatures provided by facsimile or electronic transmission shall be
deemed to be original signatures.
[SIGNATURES ON FOLLOWING PAGE(S)]
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IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the 4th
Amendment Effective Date first written above.
COMMISSION:
JEFFERSONVILLE REDEVELOPMENT COMMISSION,
an entity established pursuant to IC 36-7-14
By: C /14./X
Name: k. 11(0,VJi ."
TltIe Pias:SIN,)1
DEVELOPER:
HOGAN PROPERTY DEVELOPMENT CO.
1.By:
Name. L-./' LII ` + /
f / t !-1
Title: t�
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EXHIBIT N
Dates for Satisfaction of
Developer Closing Conditions
(Section 6.4)
[See attached]
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Developer Closing Condition; Deadline applicable to Northern Deadline applicable to Southern
Parcels and Closing thereon: Parcels and Closing thereon:
(a) Representations and As of the Closing Date for the As of the Closing Date for the
Warranties Northern Parcels Southern Parcels
(b) Commission Closing As of the Closing Date for the As of the Closing Date for the
Documents Northern Parcels Southern Parcels
(c) Project Plan Approval Sixty(60)days after initial Sixty(60)days after initial
submission date of proposed submission date of proposed
Project Plans as provided in and Project Plans as provided in and
subject to the terms of Section 4.2 subject to the terms of Section 4.2
(d) Project Funding Fifteen(15)days prior to the Fifteen(15)days prior to the
Closing Date for the Northern Closing Date for the Southern
Parcels Parcels
(e) Project Permits As of the Closing Date for the As of the Closing Date for the
Northern Parcels Southern Parcels
(f) Storm water System As of the Closing Date for the As of the Closing Date for the
Northern Parcels Southern Parcels
(g) INDOT Commitments The Discretionary Termination Date The Discretionary Termination Date
(h) Street Improvements Plans The Discretionary Termination Date The Discretionary Termination Date
(i) Street Improvements Permits The Discretionary Termination Date The Discretionary Termination Date
(j) Street Improvements Funding The Discretionary Termination Date The Discretionary Termination Date
(k) INDOT Ingress/Egress The Discretionary Termination Date The Discretionary Termination Date
Approval
(I) Utilities Improvements Thirty(30)days prior to the Closing Thirty(30)days prior to the Closing
Date for the Northern Parcels Date for the Southern Parcels
(m) Utility Easement Area Thirty(30)days prior to the Closing Thirty(30)days prior to the Closing
Date for the Northern Parcels Date for the Southern Parcels
(n) (Intentionally Omitted] N/A N/A
(o) Environmental Assessment (A) Completed (A) Completed
(B) Seven(7)months after the (B) Seven(7)months after the
Discretionary Termination Discretionary Termination
Date Date
(C) Thirty(30)days prior to the (C) Thirty(30)days prior to
Closing Date for the the Closing Date for the
Northern Parcels Southern Parcels
(D) Seven(7)months after the (D) Seven(7)months after the
Discretionary Termination Discretionary Termination
Date Date
(p) [Not Applicable] N/A N/A
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(q) IDEM Comfort Letters Thirty(30)days prior to the Closing Thirty(30)days prior to the Closing
Date for the Northern Parcels Date for the Southern Parcels
(r) Remediation Plan Seven(7)months after the Seven(7)months after the
Discretionary Termination Date Discretionary Termination Date
(s) New Hazardous Materials As of the Closing Date for the As of the Closing Date for the
Northern Parcels Southern Parcels
(t) Title Policy Coverage As of the Closing Date for the As of the Closing Date for the
Northern Parcels Southern Parcels
(u) Commission Performance As of the Closing Date for the As of the Closing Date for the
Northern Parcels Southern Parcels
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