HomeMy WebLinkAboutReal Estate Donation Agreement (Lot 103 common area for Wolf Run Park Subdivision) REAL ESTATE DONATION.A.GIZEEMENT
This Real Estate Donation Agreement (the "Agreement") is made as of the Effective
Date, by and between the MICHAEL SCHULER, (the "Donor"), and the CITY OF
JEFFERSONVILLE (the "City").
RECITALS
WHEREAS, Donor owns in fee simple certain unimproved real property located at
Parkland Trail, with a parcel number 10-42-01-400-289.000-039 more particularly
described on Exhibit A and depicted on Exhibit B attached hereto and made a part hereof
(the "Property"), together with all rights and title Donor has to all fixtures, easements,
appurtenances, hereditaments, rights, powers, privileges, and other improvements thereon
and/or appurtenant thereto(collectively, the"Real Estate"),
WHEREAS, Donor wishes to dispose of the Real Estate which would be beneficial to
the City; and
WHEREAS, the City if a local political body authorized to acquire real property; and;
WHEREAS, Donor desires to donate, transfer and convey the Real Estate, and the
City desires to take, receive and accept the Real Estate, pursuant to the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual representations, benefits and
covenants contained herein, Donor and the City covenant and agree as follows:
TERMS AND CONDITIONS
1. Conveyance. The Donor will convey the Real Estate to the City by a Quit
Claim Deed ("Deed"), on or before the Closing Date (as defined herein).
2. Closing. Subject to all other terms and conditions set forth in this Agreement,
the transaction shall be closed, and the Deed and all other closing papers shall be executed
and delivered (the "Closing"),on the date which is fifteen(15)days after; (a) the expiration
of the Due Diligence Period, as the same may be extended as provided herein,or(b)the exact
date of Closing to be specified by the City by notifying Donor at least seven (7)days prior to
Closing (the "Closing Date").
3. Conditions of Performance.The City shall have from the Effective Date of this
Agreement until the earlier of(i)the date upon which the City gives Donor written notice of
the Closing as provided for in,SectiQxn 2 or(ii)a period of thirty (30) days from the Effective
Date (the "Due Diligence Period") to perform and complete its due diligence of the Real
Estate.The City's obligations under this Agreement shall be contingent upon the timely and
complete satisfaction, in the City's discretion, of the following conditions, unless such
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conditions are waived in writing by the City:
(a) Approval.Prior to the Closing Date,the City and the Jeffersonville City
Counsel shall have given formal approval of the City's acquisition of the Real Estate
in accordance with the terms set forth herein, and the City shall have determined to
its satisfaction that all conditions of Indiana Code have been satisfied.
(b) Condition of the Real Estate.Within ten(10)days of the Effective Date,
Donor shall deliver to the City copies of all existing surveys, title work, condition
reports, environmental assessments (including any prior assessments performed by
prospective purchasers of the Real Estate), and all other reports and information
relevant to the Real Estate of which Donor has in its possession or control, has
knowledge of, or which Donor's good faith efforts can reasonably obtain. During the
Due Diligence Period, the City, or its designated representatives, may conduct tests
and inspections of the Real Estate,including,but not limited to,soil,surface,and sub-
surface tests, utility, exterior and other assessments, and reviews of building and
construction plans and warranties and maintenance records, at the City's option and
expense,to determine that the general state and/or condition of the Real Estate, and
each and every part thereof. The parties hereby agree to cooperate with the other
party with regard to any on-site investigation of the Real Estate, and Donor hereby
grants the City the right to enter upon and access the Real Estate to perform any such
investigations so long as the same is of no cost or expense to Donor. The City will
restore the Real Estate to the condition that existed prior to such investigation,
normal wear and tear excepted, in the event that the City does not close this
transaction. The City agrees to indemnify and hold Donor harmless from any
personal injury or property damage caused by the City or its designated
representatives arising out of or related to the City's entry upon the Real Estate.
(c) Title Insurance.The City may obtain an ALTA commitment (the "Title
Commitment") for an owner's policy of title insurance (the "Owner's Title Policy"), in
which the Title Company shall agree to insure good, merchantable and marketable
fee simple title to the Real Estate in the amount of the Assessed Value (as defined
below) and in the name of the City, subject only to covenants, conditions, easements,
encumbrances, and restrictions identified in the Title Commitment and approved or
accepted by the City ("Permitted Exceptions"), upon execution and delivery of the
Deed from Donor to the City.
(d) Survey.The City may, at its sole cost and expense, order and deliver a
current survey of the Real Estate (the"Survey")satisfactory to the City.The acreage
and the description of the Real Estate prepared as part of the Survey may be
substituted as the legal description on Exhibit A hereto and shall be fully incorporated
herein as though an original part hereof.
(e) Environmental Assessment. The City may conduct, at the City's sole
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cost and expense, any environmental assessments and/or investigations of the Real
Estate, including, but not limited to, a Phase I and Phase II Environmental Site
Assessments (hereinafter collectively referred to as the "Environmental
Assessments"), to determine that there is no evidence of any contamination of the
Real Estate by any hazardous or special wastes, substances, materials, constituents,
pollutants or contaminants (as defined by federal, state or local laws, statutes,
ordinances,rules or regulations)and that there are no conditions existing on the Real
Estate (as of the date of such assessment and/or investigation)that are unacceptable
to the City or which may give rise to any future civil, criminal or administrative
environmental proceedings or investigations with respect to the Real Estate or the
City's intended use of the Real Estate or that require remediation or other curative
actions. If it is determined that any environmental remediation and/or cleanup of
the Real Estate is necessary and/or the City disapproves of any matters indicated or
disclosed in the Environmental Assessment, (a)Donor and the City may enter into a
separate agreement which addresses the remediation of the Real Estate and the costs
therefor, or (b) the City may terminate this Agreement prior to the expiration of the
Due Diligence Period.Any environmental investigations of the Real Estate conducted
or caused to be conducted by the City and all reports therefore or related thereto shall
remain the possession of the City at all times and may only be relied upon by the
City.
(f) Litigation and Representations. As of Closing, no action or proceeding
before a court or other governmental agency or officer shall be pending and/or
threatened that would impair, in a material manner, the value of the Real Estate or
Donor's or the City's ability to undertake and/or complete the transaction
contemplated by this Agreement or the City's intended use of the Real Estate.
4. Closing Costs.
(a) In addition to the other costs set forth herein, at Closing, Donor shall
be obligated to pay the following: (i) all costs of providing a Deed; and (ii) all
prorations and/or credits to which the City is entitled hereunder.
(b) At Closing, the City shall be obligated to pay the following: (i) all
expenses incident to the City's financing with respect to the Real Estate, if any; (ii)
the cost of title work(including,without limitation,the title search/examination,Title
Commitment, Owner's Title Policy, and any endorsements thereto required by the
Title Company); (iii) the Survey; (iv) the cost of all recording and filing fees in
connection with the acquisition of the Real Estate (i.e., the Deed); (v) any closing fees;
(vi) all Environmental Assessments related costs; and (vii) all prorations and/or
credits to which Donor is entitled hereunder. Except as otherwise set forth herein,
the City and Donor shall each be responsible for all of their own respective costs and
expenses, including attorneys'fees, incurred in connection with this transaction.
5. Nozwerformarrp. In the event that one or more of the conditions set forth in
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Section 3 above are not timely and/or completely satisfied within the time frames set forth
therein, in the City's sole discretion, or waived by the City, and the City notifies Donor of
such prior to the expiration of the Due Diligence Period, the City may terminate this
Agreement and all of its obligations hereunder by written notice to Donor, in which event
the City and Donor shall no longer have any obligation hereunder to the other party,except
for those obligations that expressly survive the termination of this Agreement.
6. Taxes. Donor will be responsible for paying all real estate taxes and
assessments relating to the Real Estate assessed for all calendar years prior to Closing and
shall pay, or cause to be paid, that portion of such taxes assessed for and becoming a lien
during the calendar year of the Closing as shall be allocable to it for the period through and
including the date of the Closing, if any. The City will be responsible for any and all real
estate taxes payable on the Real Estate from and after the Closing Date, if any. The City
represents and warrants that this gift is a separate and distinct transaction, and that it has
made no promises of consideration to Donor in connection herewith and no other gifts by
Donor are a condition to completion of this gift. Based solely on the assessed value provided
by the Appraisal attached as Exhibit C, the City recognizes that value of the Real Estate is
shown as $222,000(the "Appraised Value").
7. Survival of Covenants. Except for those terms, covenants and conditions
which are fully performed prior to the date of Closing, the terms, covenants, conditions,
representations, and warranties contained in this Agreement shall survive the delivery of
the Deed.
8. Representations and Warranties of Donor. Donor covenants, represents, and
warrants to the City that, both as of the Effective Date and as of the Closing Date:
(a) This Agreement has been duly executed and delivered by Donor, and
constitutes the legal,valid, and binding obligation of Donor,enforceable in accordance
with its terms, and this Agreement does not violate any other agreement, oral or
written, which may exist with respect to the Real Estate;
(b) Donor has the full right, power, and authority to enter into this
Agreement and to consummate the transaction contemplated herein;
(c) There is no action, suit, litigation, or proceeding of any nature
pending or threatened against or affecting the Real Estate, or any portion thereof,
by any third party, in any court or before or by any federal, state, county, or
municipal department, City, board, bureau, agency, or other governmental
instrumentality;
(d) No condemnation or other taking by eminent domain of the Real Estate
or any portion thereof has been instituted,Donor has not received any notice of taking
or condemnation or intent to take or condemn all or any portion of the Real Estate,
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and there are no pending or threatened condemnation or eminent domain proceedings
(or proceedings in the nature or in lieu thereof)affecting or relating to the Real Estate
or any portion thereof or its use;
(e) No work has been performed or materials furnished by or on Donor's
behalf or request on or with respect to the Real Estate which could give rise to a
mechanic's or materialmen's lien against the Real Estate;
9. Representations and Warranties of the City. The City hereby
represents and warrants to Donor as follows:
(a) This Agreement does not conflict with any provisions of the organizing
documents of the City or any agreement or commitment to which the City is a party;
and
(b) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on the part of the City,and no further action
of the officers or members of the City is required to give effect to this Agreement or
to permit the City to carry out the transactions contemplated hereby.
10. Obliggtiona att.tbei g.
(a) Donor. At the Closing, Donor shall execute, or cause to be executed,
and shall deliver to the City or the Title Company,as applicable,the following: (i)the
Deed; (ii) a Sales Disclosure Form; (iii) a Vendor's Affidavit reasonably acceptable to
Title Company; (iv)a closing statement and other documents reasonably required by
the Title Company to insure this donation; and (v) such other documents as
reasonably may be required to consummate the donation contemplated hereby.
(b) The City. At the Closing,the City shall execute,or cause to be executed,
and shall deliver to Donor the following: (i) a closing statement and other documents
required by the Title Company to insure this donation; and (ii) such certificates and
other documents as reasonably may be requested by Donor prior to the Closing to
consummate the donation contemplated hereby or to report this donation to the IRS,
including execution of the IRS Form 8283.
11. Assignment. The City may assign this Agreement, or any of its rights
hereunder to any department or agency thereof without Donor's prior consent;provided that
any such assignment or designation by the City shall be subject to such assignee's
assumption in writing of all of the City's obligations hereunder.The City shall not otherwise
assign this Agreement or any of its rights hereunder without Donor's prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed.
12. Authority.Each of the persons executing this Agreement on behalf of the City
and Donor represents and certifies that: (a) he or she is empowered and authorized by all
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necessary action of the City and Donor, respectively, to execute and deliver this Agreement;
(b) he or she has full capacity, power, and authority to enter into and carry out this
Agreement; and (c) the execution, delivery, and performance of this Agreement have been
authorized by, and this Agreement is the legal,valid, and binding obligation of,the City and
Donor, respectively.
13. Brokers. Donor and the City each represent and warrant to the other that
they have dealt with no broker or other person with respect to this Agreement. The parties
agree to indemnify and hold harmless one another against any loss, liability, damage, cost,
expense or claim incurred by reason of any brokerage City 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 attorney's fees and court costs incurred in
defending any such claim.
14. Binding Effect.This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, legatees, representatives, successors, and
assigns. Nothing in this Agreement, expressed or implied, is intended to confer upon any
person, other than the parties hereto, except as provided above, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
15. Entire Agreement. This Agreement supersedes all other prior
understandings, commitments, representations, negotiations, discussions and agreements,
whether oral or written, express or implied, between the parties hereto relating to the
matters contemplated hereby and constitutes the entire agreement between the parties
hereto relating to the subject matter hereof.
16. Amendment. This Agreement may not be amended, modified, or
supplemented, except by a written agreement executed by both the City and Donor.
17. Headings.The headings contained in this Agreement have been inserted and
used solely for ease of reference and shall not be considered in the interpretation or
construction of this Agreement.
18. Smrabili.ty.In case any one or more of the provisions(or any portion thereof)
contained herein shall, for any reason, be held to be invalid,illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any other provision of
this Agreement, but this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision or provisions (or any portion thereof) had never been contained
herein.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana, without regard to its conflict of law
provisions, principles, or rules.
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20. Lime. Time for the performance of this Agreement and the obligations of the
parties hereunder is of the essence.If the time period by which any right, option,or election
provided under this Agreement must be exercised, or by which any act required hereunder
must be performed, or by which Closing must be held, occurs or expires on a Saturday,
Sunday, or federal holiday, then such time period shall be automatically extended through
the close of business on the next regularly scheduled business day.
21. Attorneys'Fees/Jurisdiction.Except as set forth herein,each party shall bear
its own costs and attorneys' fees in connection with the negotiation and execution of this
Agreement. However, in the event litigation is needed to enforce this Agreement, the
prevailing party,whether by lawsuit or settlement before or after any lawsuit is filed or any
other means (including, but not limited to, mediation or arbitration.), shall be entitled to
recover its costs, expenses, and reasonable attorneys' fees incurred in the enforcement of
this Agreement, including enforcing it as a defense and such suit or proceeding shall be
brought in the state courts of Clark County, Indiana, and the parties shall submit to the
exclusive jurisdiction of such courts and waive any and all jurisdictional, venue and
inconvenient forum objections to such courts.
22. Construction. This Agreement is the product of negotiation by the parties
hereto and shall be deemed to have been drafted by such parties. This Agreement shall be
construed in accordance with the fair meaning of its provisions and its language shall not
be strictly construed against, nor shall ambiguities be resolved against, either party.
23. Review and Consultation.Each of the parties hereto hereby acknowledges and
agrees that each (a) has read this Agreement in its entirety prior to executing it, (b)
understands the provisions and effects of this Agreement, and (c) has consulted with such
attorneys, accountants, and financial and other advisors deemed appropriate in connection
with its respective execution of this Agreement.
24. Counterparts.This Agreement may be executed in counterparts, including by
electronic means, each of which when so executed and delivered shall be an original,and all
of which together shall constitute one and the same instrument, notwithstanding that all
the parties have not signed the original or the same counterpart.
25. ETective Date. The Effective Date of this Agreement shall be the last date
signed by a party hereto as evidenced in the signature page to this Agreement.
(Signature Page Follows)
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IN WITNESS WHEREOF; the parties hereto have executed this Real Estate
Donation Agreement to be effective as of the Effective Date.
"DONOR":
MICHAEL SCHULER
By:
Date:
D— C.41 —
Its:
"THE CITY":
CITY OF JE ONVI
Ey;Date: ,Q��.
Its: cAa.ioc ‘-14e \A 'e
TES •
Secretary
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EDIT A
LEGAL DESCRIPTION
Lot 103 the common area for Wolf Run Park Subdivision,Jeffersonville.
EXxII3IT B
STATE
DEPICTION OF REAL E
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EMBIT C
APPRAISAL