HomeMy WebLinkAboutNorth Springs Dev. OPTION TO PURCHASE REAL ESTATE
FOP. AND IN CONSIDERATION of the sum of Ten Thousand and No/100 Dollars
($10,000.00), the receipt and sufficiency of which is hereby acknowledged, the City of Jeffersonville,
Indiana, by its Department of Redevelopment (hereinafter referred to as "City"), does hereby give
and grant to North Spnngs Development, LLC, an Indiana hm~ted habfi~ty company (~ Developer"),
the exclusive and irrevocable option condition to the terms set herein to purchase the approximately
1.992-acre tract of real estate described in the attached Exhibit"A", which real estate is located at the
commonly known addresS of the northwest comer of the intersection of Spring Street and Tenth
Street in the City of Jeffersonville, Indiana (assuming that Tenth S~eet runs in a north-south
direction), together with all eas~nents, rights and appurtenances attached thereto and all of the
improvements thereon (the P.ealEstate ), for a purchase price of One Million Fifty Thousand and
No/100 Dollars ($1,050,000.00) (the "Purchase Price"). The aforesaid considerati6n paid by
Developer for this option as hereinafter provided, shall be applied to the cash portion of the purchase
price payable upon closing. The City and Developer agree that the terms and conditions of this
option are as follows:
1. Term of Option. Unless the term of this option is extended either in accordance with
the provisions of this Section 1 l~ereinbelow or upon subsequent written agreement between City and
Developer, Developer's right to exercise this option shall commence on the date hereof, and shall
continue until 5:00 o 'clock p .m. (prevailing Clark County time) on the one hundred twentieth ( 120t~)
day hereafter, with the day following execution of this option being counted as the first day (the
"Option P eriod"). On Or before.ten (10) days prior to the expiration of the Option Period, Developer
shall be entitled to extend the Option Period for a period of an additional sixty (60) days upon
written notice and concurrent payment to the City of an additional sum of Two Thousand and
No/100 Dollars ($2,000.00). ~ ~
2. Exercise of Opti6m Condition to Exercise. This option shall be exercised by
Developer's written notice to City of its election to purchase (a) actually served upon City, or (b)
placed in an envelope directed to City at ti~e address of City shown in Section 12 below and
deposited in the United States Mail by certified or registered mail, postage, prepaid, prior to the
expiration of the Option Period, including any extension thereofi Notwithstanding anY other
provision of this option agreement, however, this option may onlybe exercised byDeveloper i fit has
obtained a firm commitment for the development o fan AmeriSuites hotel (or other comparable hotel
development as subsequently approved by the Jeffersunville Kedevelopment Commission, which
approval shall not be unreasonably withheld) consisting of at least one hundred (100) rooms on the
P.eal Estate. Written evidence of such commitment"shall be tendered by Developer with its notice of
exercise of the option, x..
3. Conditions Precedent to Closing.. The Developer's obligation to purchase the P.eal
Estate after the exercise of the option herein granted is subject to the satisfaction of the following
conditions precedent:
Page I of 9
development and improvement of the Real Estate for its intended uses and purposes. The parties
hereby acknowledge pending litigation in U.S. Federal Court pertaining to the real estate, which may
affect the city's ownership of the Real Estate.
t there are no claimS, demands, liabilities or actions pending or threatened
g. Tha .......... ~:n~- or threatened condemnation
against City or the Real Estate (including, wimout l~m~a~on no P~"~ ~
proceedings by any public or governmental agency or authority) except the litigati°n pending in U.S.
Federal Court: which constitute or might ripen into a lien or claim against the Real Estate or which
could prevent, prohibit, delay or interfere with Developer's use, de-~elopment and improvement of
the Real Estate for its intended uses and purposes or which could otherwise deprive Developer of any
portion of the Real Estate.
h. That any Developer performed studies do not lead to the conclusion that
construction cost of the proposed project on the Real Estate will increase by more than five percent
(5.00%) due to any environmental or soil condition on the Real Estate.
i. That City has performed all obligations on its part to be performed hereunder.
If Developer exercises this option and the conditions set forth above are not satisfied prior to
closing, or waived in writing by DeveloPer, Developer shall be entitled t° a refund of ail monies
paid by Developer for this option and any extension hereof, and the same promptly shall be returned
to Developer by City, and Developer' obligations hereunder shall terminate. Developer shall not be
deemed to have waived any of said conditions precedent by exercising or extending this option, and
all of said conditions precedent shall be and remain as conditions precedent to Developer's
obligation to close hereunder, regardless of whether or not this option has been exercised or extended
by Developer; provided, however, that it is understood and agreed that all of said conditions
precedent are for the exclusive benefit of Developer and that Developer shall have the right to waive
any of said conditions precedent, as and when Developer shall see fit in its sole discretion. Notice of
exercise of this option shall be effective even though it is made expressly subject to satisfaction of
any of said conditions precedent, but by Developer's failure to expressly refer to said conditions
precedent when giving such notice of exercise shall not constitute a waiver thereof. The existence of
all of said conditions precedent also shall constitute representations and warranties by City to
Developer hereunder which must be true and correct at the time of closing and which shall survive
the closing,
Notwithstanding anything to the contrary contained herein, if even before exercise of this
· ''ons recedent fails or Developer determines in good
tion b Developer anY of the aforesmd cond~t~ p _ · within Developer's sole
o,p. _ .. Y. ........ e said conditions precedent cannot be satisfied .
ialth ttla~ on~ m m~,,,, v~
discretion, and Developer notifies City in writing thereof, Developer shall be entitled to receive a
refund of all monies paid for this option and any extension hereof and the same promptly shall be
returned to Developer by City. In the event Developer fails to exercise this option as herein
Page 3 of 9
provided, and Developer has not notified City in writing of this failure of any of said conditions
precedent or of its determination that one or more of said conditions precedent cannot be satisfied,
then City shall be entitled to retain all monies paid by Developer for this option and any extension
hereof, without any further obligation on the part of either party to the other hereunder.
' · ' 30 days after the date of exercise of this option, City shall
4. Title_. W~thm thlrt, y ( ) ..... ,~ t..~.* mortoa~'e) policy of title insurance
furnish Developer with a commitment tor an cJwn~ ~ ~,,,,, ~ ~ which such title
(binder) issued by a title insurance company satisfactory to Developer, pursuant to
insurance company shall agree to insure good, marketable and indefeasible fee simple title to the
Real Estate in the name of Developer for the full amount of the purchase price upon delivery of a
deed to Developer from City. Such binder shall provide for issuance of a final title insurance policy
in A.L.T.A. Owner's Form B-1970, free and clear of any and all liens, encumbrances, highways,
rights-of-way, easements licenses, restrictions, leases, tenancies, mineral leases, reservations or
severances, agreements, covenants, conditions, limitations and other exceptions, except current taxes
which are not delinquent and such other exceptions as Developer in its discretion, may elect to
approve after examination of title as hereinafter provided. Said binder shall be accompanied by true
copies of all documents which are shown as exceptions therein. The standard general exceptions for
(i) unrecorded mechanic's liens, (ii) any discrepancies, conflicts or shortages in area or boundary
lines or any encroachments, or any overlapping of improvements, (iii) visible and apparent or
unrecorded easements, and (iv) rights of parties in possession, all shallbe deleted. City shall satisfy
all of the title requirements shown in the binder so that there will be no exception for delinquent
taxes, occupancy, mechanic's liens or any other title defect in the final title policy. If the Real Estate
is comprised of two (2) or mere parcels, the title insurance policy must affirmatively insure
contiguity of all such parcels. The title insurance premium, including any charges for special
examination fees, charges, and expenses, shall be
coverage or endorsements and all title search and Said binder shall remain in effect
equally divided between City and Developer at or prior to closing.
for a period of time which expires no earlier than the latest closing date provided for hereunder, and
such binder shall be extended accordingly in the event of any extensions and upon any such
extension, there shall be no adverse change in title.
Developer may, at its expense, provide a current staked survey of the Real Estate prepared by
a surveyor or engineer licensed in Indiana, with a current certificate attached thereto executed by the
surveyor in the form of the minimum standard detail requirements certificate for land title surveys as
required by Developer. Developer shall also provide at no charge copies to City copies of any
surveys performed on real estate. City shall also provide at no charge copies to Developer of any
surveys it has performed on real estate. Such survey shall reflect all improvements, easements,
highways, rights-of-ways and other matters affecting or abutting the Real Estate, and shall be in a
form sufficient to induce the title insurance company to delete all standard and printed exceptions
contained in the title insurance commitment described above. Said survey must reflect that there are
no easements or other matters which would prevent or interfere with Developer's use, development
and improvement of the Real Estate for its intended use and purposes, and that the Real Estate has
Page 4 of 9
the required access to abutting streets and highways. If the Real Estate is of comprised of two (2) or
more parcels, said survey must reflect and expressly certify that all such parcels are contiguous, that
there are no gaps, gores or spaces, and that when taken together such parcels form a single tract of
land. Said survey shall be recertified as of the date of closing, and there shall be shown no adverse
change. Any and all surveys shall be paid for by Developer.
Developer shall have a period of ten (10) days following receipt of said title insurance binder
survey in which to examine the same and notify City in writing of any title or survey objections
~m Developer in which to correct any'such objections to title or survey and satisfy any further title
or further requirements. City then shall have a period often (10) days after receipt of such notice
and survey requirements of Developer. If City is unable to correct Developer's title and survey
objections and satisfy Developer's further title and survey requirements within ten (10) days after
receipt of written notice thereof, then Developer thereafter shall have the right at any time, at its
election, to cancel and terminate this option agreement and receive a refund of all monies paid by
Developer hereunder, unless Developer elects in writing to waive such title and survey objections
and requirements. It is understood and agreed that Developer shall have, and does hereby reserve,
the absolute and unconditional right to reject the title and survey as Developer shall see fit in its
discretion. It is further understood and agreed that in the event Developer exercises this option prior
to delivery of said title insurance binder and survey, or after delivery of such binder and survey but
prior to the expiration of the time provided for Developer's examination thereof or prior to the
correction and satisfaction of Developer's title and survey objections and requirements as
hereinabove provided, Developer shall not be deemed to have waived the aforesaid title and survey
examination or any of its title or survey objections or requirements as hereinabove provided, and
such exercise of this option shall be subject to such title and survey requirements and the right of
Developer to assert its title and survey objections and further title and survey requirements and to
subsequently cancel and terminate this option agreement and receive a refund of all monies paid by
Developer for the option or any extension thereof.
· · . If within the Option period or any extension of the
~ Retention of Option Mone~. ..... ~ ,m, ~.~ ~,,nditions to enable ~t to exermse
original option penoo, ~v v ' '
"' · -- ' - ~'~-.elo'-er does not sat~slactorlly IUimi m,- ,~,,
this option, or otherwise does not exercise this option, the consideration paid by Developer shall be
and remain the property of City.
velo er will assume and agree to pay all assessments f°r
6. Taxes and Asses.sment. s_. De P e closin of the purchase and sale of the
municipal improvements becoming a hen after the date of th g ·
Real Estate, and all real estate taxes assessed for and becoming a lien during the calendar year m
which such closing occurs and which is allocable to Developer on and after closing,, using for
closing purposes, the present tax rate if the applicable tax rate has not been set but providing for
adjustment when such rate is set.
7. I_nsurance and Risk of Los_s. Insurance, if any, shall be cancelled as of the date of
Page 5 of 9
closing. City shall bear risk of loss until closing.
.. · , f cit the
. ,,7.;ilEstate, Citva eest ,a , sna.
8 ~a~oftheRealE~ate, t ~ ~
Developer ex~clses ~ls option ~a c~u~, ....... ~.
not off~ ~Y real prope~ owned or controlled by the City ~d located within one-half (1/2) mile of
~e Real Estate for sale or lease without including a resffiction that such real estate may not be
developed as a hotel or motel during a period of five (5) ye~s following the date of closing of the
Real Estate pursuit to this a~eement.
.. · f Developer. City has disclosed to Developer ~at it has
. Additional Core,truant o . -_r :,~ no,~,~ ~inent domain, ~at it has
9 ~ .... ~ ~,o,~ *hro~h exerctse o~ t[~ ~ ..... of
acquired a pomon ot ~e mere ~*[ ...... o--
paid ~e sum of $350,000.00 into cou~ pursuit to Indi~a law to obtain title and possession of such
potion of ~e Ke~ Estate, ~d that ~e issue of ~e amount of comp~sation to which such foyer
owner is entitled r~ains subject to litigation. Developer a~ees and commits ~at if ~e City is
dete~ined to owe additional compensation to such foyer owner ~der ~y final ~d non-
appealable jud~t in such litigation, Developer sh~l pay up to the sm ofFi~een ~ous~d and
No/100 Doll,s ($15,000.00) in addition to the Purchase price tow~ds such additional
compensation, ~d such addition~ pa~ent obligation shall su~ive closing.
10. Successors and Assi~ns~ T~s option may not be ~si~ed wi~out the prior wfi~en
approval by City, w~ch sh~l not be u~easonably wi~eld.
elo er exercises this option ~d Ci~ f~ls to p~o~ its
11. Remedie~ ~e ev~tDe~ P ........ *:*~d to enforce ~e sine by specffic
obligations h~der upon closing, Develop~ snm~ o~ ~-~[~ ~ the event ~at
p~o~ce, ~d be aw~ded reasonable a~omey fees for enforc~ent of~is remedy unless Ci~is
~able to ~lfill its obligations due to ~e pending litigation in U.S. Feder~ Co~.
Developer ex~cises this option and ~1 conditions precedent to closing h~e~der have been satisfi~
or waived by Develop~ in writing, ~d Developer ~ea~er f~ls or re~ses to pe~o~ its
obligations hereunder upon closing, CiW shallbe ~titled to retain all monies p~d by Developer for
. . . · ,s sole rem~y at law
this option ~d any extension hereof as hqmdated damages, which sh~l be C~ty
or in equi~, ~d City h~eby waives the fi~t to specific perforate.
. · ' f this o tion shall be ~ven in ~e fo~ ~d m~er set
12. Not,ce~ ~ot~.ce 0f e~ff~y~s~,~,hr ~tices required to be ~ven by eider p~Y to the
e first a e of~ls lBS~n[' ~t ~ .... · S'
fo~h ~n · P g _ · · ' ' ~ b c~tfied man as rottow ·
other hereunder shall b~ ~ven m ~tm~ y
If to Develops: No~h Springs Development, LLC
C. ~egou Fif~, Ke~st~ed Agent '
126 West Spring S~eet
New Alb~y, ~ 47150
Page 6 of 9
If to City:
Jeffersonville Department of Redevelopment
Attention: Executive Director
City-County Building, Fourth Floor
501 East Court Avenue
Jeffersonville, IN 47130
Either party may change its address for purposes of receiving any such notices by giving notice to the
other party in accordance with this Section 10. Any notice served by either party on the other shall
be deemed effective when deposited in the mail as aforesaid.
13. Non-Waiver. No delay, forbearance, or neglect by Developer in the enforcement of
any of the conditions of this agreement or any of Developer's rights or remedies hereunder shall
constitute or be construed as a waiver thereof. No waiver of any of the conditions of this agreement
by Developer shall be effective unless expressly and affirmatively made and given by Developer in
writing.
14. Brokerage Commission. City and Developer represent and warrant to each other that
there are no commissions due in connection with this transaction or the Real Estate, and neither
Developer nor City have employed, and are not obligated to, any real estate agent or broker in
connection with this transaction or the Real Estate, and each shall indemnify the other from and
against any and all claims and liability for any such commissions, which indemnities shall survive
the dosing.
15. Memoranda. If requested by Developer, City shall execute, acknowledge and deliver
to Developer a Memorandum of Option and subsequent memorandum of the extension and/or
exercise hereof, all in recordable form, which memoranda may be recorded by Developer in the
office of the Clark County Recorder. Said memorandum shall not disclose the purchase price or the
consideration for the option or any extension thereof.
16. Time of the Essence. Time is of the essence for the performance of each and every
covenant contained herein.
17. Entire Agreement; Amendment. This instrument contains and constitutes the entire
agreement of the parties regarding the subject matter hereof, and there are no other agreements,
written or oral, between the parties affecting the subject matter hereof. No amendment of this
agreement shall be effective unless the same is made in writing and signed by the parties hereto.
18. Authorization for Agreement. City and Developer each represent to the other that
all actions required by law or organizing agreement have been taken in order to authorize execution
of this option agreement.
Page 7 of 9
19. Construction. The parties agree to the following with respect to the construction and
interpretation of this option agreement:
a. Alt headings of sections of this agreement are inserted for convenience only,
and do not form'par~ of this agreement or limit, expand or otherwise alter the meaning of any
provisions hereof.
b. 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 on and the same agreement.
c. The terms "hereof", "herein", and "hereunder", and words of similar import,
shall be construed to refer to this agreement as a whole, and not to any particular paragraph or
provision, unless expressly so stated.
d. The word "person" shall mean any natural person, partnership, corporation and
any other form of business or legal entity.
e. All words or terms used in this agreement, regardless of the number or gender
in which they are used, shall be deemed to include any other number and any other gender as the
context may require.
f. The provisions of this agreement are intended to be for the sole benefit of such
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.
g. This agreement shall be construed without regard to any presumption or role
requiring construction against the party causing such instrument to be drafted.
h. The terms, covenants and provisions of this agreement shall survive the
closing and delivery of deed and shall not be merged.
20. Governing Law. This agreement shall be interpreted and enforced according to the
law of the state of Indiana.
21. Closing The closing of this sale and purchase of the Real Estate shall take place on or
before thirty (30) days after the date this option is exercised at such time and place mutually agreed
upon by Developer and City. At closing, Developer shall pay to City the full purchase price, less any
adjustments to the original agreement.
IN WITNESSWHEREOFthis agreementis executedbythe partiesthis
of F~5,2004.
[}A~,d,d,~ ~ Page8of9
]b~'~ day
For "City":
CITY OF JEFFERSONVlLLE, INDIANA,
By its DEPARTMENT OF REDEVELOPMENT
For "DevelopeW:
NORTH SPRINGS DEVELOPMENT, LLC
By: ~ Member
Page 9 of 9