G. Lumber Yard_Option Agreement.pdfOPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") made and entered into effective as of
the 26th day of July, 2013, by and between GAIL M. LABARGE, having an address at
835 18th St., Apt. 602, Vero Beach, FL 32960 (hereinafter called “Optionor”), and
VALLEY COMMUNITY DEVELOPMENT CORPORATION, or its nominee,
having a place of business at 30 Market Street, Northampton, Massachusetts 01060
(hereinafter called "Optionee"):
W I T N E S S E T H:
WHEREAS, Optionor is the fee simple owner of certain real estate situated on the
easterly side of Pleasant Street and the northerly side of Holyoke Street in Northampton,
Massachusetts, being shown as Parcel 32C-171 and Parcel 32C-337 on Map Sheet 32C of
the Northampton Assessors and Zoning Map. For title see deed of Charles J. Paquette to
Gail M. White, dated August 1, 1985 and recorded in the Hampshire Registry of Deeds in
Book 2623, Page 218 and deed of Charles J. Paquette and Elizabeth V. Paquette to Gail
M. LaBarge, dated October 21, 2005 and recorded in the Hampshire Registry of Deeds in
Book 8496, Page 325. Gail M. White is now known as Gail M. LaBarge. ("Premises");
WHEREAS, Optionor and Optionee entered into a Purchase and Sale Agreement dated
July 26, 2013, with respect to the Premises, and upon the signing of this Option
Agreement are terminating said Purchase and Sale Agreement;
and,
WHEREAS, Optionee desires to procure an option to purchase the Premises upon the
terms and provisions as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged by the parties hereto and for the mutual covenants
contained herein, Optionor and Optionee hereby agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following terms shall have the
following meanings:
(a) "Execution Date" shall mean the day upon which the last party to this Agreement
shall duly execute this Agreement;
(b) "Option Fee" shall mean the total sum of a down payment of $25,000.00, payable as
set forth below;
(c) "Option Term" shall mean that period of time commencing on the Execution Date and
ending on March 31, 2015;
(d) "Option Exercise Date" shall mean that date, within the Option Term, upon which the
Optionee shall send its written notice to Optionor exercising its Option to Purchase;
(e) "Closing Date" shall mean the last day of the Closing Term or such other date during
the Closing Term selected by Optionee.
(f) “Closing Term” shall mean the period commencing with the Option Exercise Date
and ending on May 28, 2015, or such later date as the parties may mutually agree upon in
writing.
2. GRANT OF OPTION. For and in consideration of the Option Fee payable to Optionor
as set forth herein, Optionor does hereby grant to Optionee the exclusive right and Option
("Option") to purchase the Premises upon the terms and conditions as set forth herein.
3. PAYMENT OF OPTION FEE. Optionee agrees to pay the Optionor the Option Fee
upon the Execution Date.
4. EXERCISE OF OPTION. Optionee may exercise its exclusive right to purchase the
Premises pursuant to the Option, at any time during the Option Term, by giving written
notice thereof via certified or registered U.S. Mail, return receipt requested, or via FedEx
or UPS overnight mail to Optionor. As provided for above, the date of sending of said
notice shall be the Option Exercise Date. In the event the Optionee does not exercise its
exclusive right to purchase the Premises granted by the Option during the Option Term,
Optionor shall be entitled to retain the Option Fee, and this agreement shall become
absolutely null and void and neither party hereto shall have any other liability, obligation
or duty hereunder or pursuant to this Agreement.
5. CONTRACT FOR PURCHASE AND SALE OF REAL PROPERTY. In the event that
the Optionee exercises its exclusive Option as provided for in the preceding paragraph,
Optionor agrees to sell and Optionee agrees to buy the Premises and both parties agree to
execute a contract for such purchase and sale of the Premises in accordance with the
terms and conditions set forth in Purchase and Sale Agreement attached hereto and made
a part hereof as Exhibit A, pursuant to which the Option Fee shall be credited towards the
purchase price for the Premises.
6. REQUIREMENT FOR HUD ENVIRONMENTAL REVIEW PURSUANT TO NEPA
PRIOR TO EXERCISE OF OPTION. The Optionee’s exercise of the Option hereunder
is subject to a determination by Optionee on the desirability of the Premises for its
intended development project as a result of the completion of the environmental review
in accordance with 24 CFR Part 58. During the Option Term, the Optionee at its option
may seek a waiver from HUD of the requirement under 24 C.F.R 58.22(a) to avoid a
“choice limiting” activity before obtaining a HUD environmental review of the Premises
under NEPA.
7. MISCELLANEOUS.
(a) Execution by Both Parties. This Agreement shall not become effective and binding
until fully executed by both Optionee and Optionor.
(b) Notice. All notices, demands and/or consents provided for in this Agreement shall be
in writing and shall be delivered to the parties hereto by hand or by United States Mail
with postage pre-paid. Such notices shall be deemed to have been served on the date
mailed, postage pre-paid. All such notices and communications shall be addressed to the
Optionor at c/o Thomas Growhoski, Esq., 60 State Street, Northampton, MA 01060 and
to Optionee at 30 Market Street, Northampton, MA 01060, with a copy to David C.
Bloomberg, Esq., 64 Gothic Street, Suite 4, Northampton, MA 01060 or at such other
address as either may specify to the other in writing.
(c) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(d) Successors and Assigns. This Agreement shall apply to, inure to the benefit of and be
binding upon and enforceable against the parties hereto and their respective heirs,
successors, and or assigns, to the extent as if specified at length throughout this
Agreement.
(e) Headings. The headings inserted at the beginning of each paragraph and/or
subparagraph are for convenience of reference only and shall not limit or otherwise affect
or be used in the construction of any terms or provisions hereof.
(f) Cost of this Agreement. Any cost and/or fees incurred by the Optionee or Optionor in
executing this Agreement shall be borne by the respective party incurring such cost
and/or fee.
(g) Entire Agreement. This Agreement contains all of the terms, promises, covenants,
conditions and representations made or entered into by or between Optionor and
Optionee and supersedes all prior discussions and agreements whether written or oral
between Optionor and Optionee with respect to the Option and all other matters
contained herein and constitutes the sole and entire agreement between Optionor and
Optionee with respect thereto. This Agreement may not be modified or amended unless
such amendment is set forth in writing and executed by both Optionor and Optionee with
the formalities hereof.
(h) The Optionee and its agents, contractors and employees shall have access to the
Premises during the Option Term to make inspections and take measurements.
Optionee shall restore the Premises to its prior condition upon completion of all such
inspections/measurements.
(i) Termination of prior Purchase and Sale Agreement. Upon signing this Agreement, the
parties shall also execute and deliver the Termination of Purchase and Sale Agreement in
the form of Exhibit B attached hereto and made a part hereof.
(j) The Optionor authorizes the Optionee to record at Optionee’s expense a Notice of
Option in the Hampshire Registry of Deeds in form and content attached hereto as
Exhibit C.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
under proper authority:
Signed and sealed in presence of:
OPTIONOR:
Witness Gail M. LaBarge
OPTIONEE:
Valley Community Development
Corporation
By:
Witness Joanne Campbell
Its: Executive Director
EXHIBIT A
PURCHASE AND SALE AGREEMENT, made this day of ,
201__ by and between
GAIL M. LABARGE, having an address at 835 18th St., Apt. 602, Vero Beach, FL
32960, hereinafter called SELLER, and
VALLEY COMMUNITY DEVELOPMENT CORPORATION, or its nominee,
having a place of business at 30 Market Street, Northampton, MA 01060, hereinafter
called BUYER.
The SELLER hereby agrees to sell and the BUYER to purchase certain estate situated on
the easterly side of Pleasant Street and the northerly side of Holyoke Street in
Northampton, Massachusetts, being shown as Parcel 32C-171 and Parcel 32C-337 on
Map Sheet 32C of the Northampton Assessors and Zoning Map. For title see deed of
Charles J. Paquette to Gail M. White, dated August 1, 1985 and recorded in the
Hampshire Registry of Deeds in Book 2623, Page 218 and deed of Charles J. Paquette
and Elizabeth V. Paquette to Gail M. LaBarge, dated October 21, 2005 and recorded in
the Hampshire Registry of Deeds in Book 8496, Page 325. Gail M. White is now known
as Gail M. LaBarge.
PURCHASE PRICE AND DEPOSIT And for such deed and conveyance the BUYER
is to pay the sum of $1,000,000.00, of which $25,000.00 have been paid prior to this date
as an option payment to be credited toward the purchase price, an additional $25,000.00
to be paid upon the signing of this agreement to be credited toward the purchase price,
and the balance of $950,000.00 is to be paid in cash, by attorney's trust account check
acceptable to the SELLER, or by certified, cashiers, treasurers, or bank check upon the
delivery of said deed.
FIXTURES Included in this sale as a part of said premises are the usual Landlord's
fixtures belonging to the SELLER and used in connection therewith including, if any, all
furnaces, burners, heaters and fixtures appurtenant thereto, hot water heaters, electric and
other lighting fixtures and bathroom fixtures, presently on the premises.
The BUYER acknowledges that some of the lumber storage structures affixed to the
ground have been removed, and others will not be removed by the SELLER. The
SELLER agrees to remove, prior to closing, all storage containers that are not affixed to
the ground, and all wood, inventory, equipment, debris, pallets, and all other items of
personal property presently situated on the Property.
USE OF PURCHASE PRICE To enable the SELLER to make conveyance as herein
provided, the SELLER may, if the SELLER so desires, at the time of the delivery of the
deed, use the purchase money or portion thereof to clear the title of any or all
encumbrances or interests; all instruments so procured to be recorded simultaneously
with the delivery of said deed, UNLESS mutually reasonable and acceptable
arrangements are made at the time of closing for the prompt recording thereof in
accordance with prevailing conveyancing practices.
TRANSFER OF TITLE Said premises are to be conveyed on or before May 28, 2015,
by a good and sufficient quitclaim deed of the SELLER, conveying a good and clear
record and marketable title to the same, free from all encumbrances, except:
(a) Provisions of local zoning laws;
(b) Such taxes for the current fiscal year as are not due and payable on the date of the
delivery of such deed, and any liens for municipal betterments assessed after the date of
this agreement, excepting Enterprise Fund assessments or charges.
(c) Easements, restrictions and reservations of record, if any, so long as the same do
not prohibit or materially interfere with the intended use and occupancy of the premises.
POSSESSION Full possession of the said premises, free of all tenants, is to be delivered
to the BUYER at the time of the delivery of the deed, the said premises to be then in the
same condition in which they are now, reasonable use and wear of the buildings thereon,
and damage by fire and other unavoidable casualty excepted. The BUYER shall have the
right to inspect the premises to insure compliance with this paragraph prior to closing.
DAMAGE The buildings on said premises shall, until full performance of this
agreement, be kept insured by the SELLER in the present amount, but in case of any
damage to said premises from any cause whatsoever, other than reasonable use and wear,
prior to transfer of title hereunder, the BUYER shall, at BUYER'S option, take the
insurance money or claim and fulfill this contract, or the BUYER may cancel this
agreement and the deposit, if any, made hereunder shall be returned to BUYER and all
further obligations of the parties shall thereupon terminate.
ADJUSTMENTS Taxes, water and sewer use charges shall be apportioned as of the day
of delivery of the deed, with payment to be made to the party who has paid or will pay
said taxes. If the amount of such taxes is not known at the performance date, such taxes
shall be apportioned on the basis of the taxes assessed for the preceding tax year with a
reapportionment as soon as the new tax rate and valuation can be ascertained. This
provision shall survive the delivery of the deed.
CLOSING The deed is to be delivered and the consideration paid, if the BUYER so
requires, at the Registry of Deeds in which the deed should by law be recorded, at 1:00
p.m. on the date set forth on page 1 of this Agreement under TRANSFER OF TITLE,
unless some other place and time should be mutually agreed upon or unless extended as
set forth in the next paragraph of the Agreement.
If the SELLER shall be unable to give title, or to make conveyance or to deliver
possession of the premises, as herein provided, or if at the time of the delivery of the deed
the premises do not conform with the provisions hereof, the SELLER shall use
reasonable efforts to remove any defects in title, or to deliver possession as herein
provided, or to make the said premises conform with the provisions hereof, as the case
may be. In such event the time for performance hereof shall be extended to 30 days from
the date provided for closing. If at the expiration of the said extended time period, the
SELLER shall have failed to remove any defects in title, deliver possession, or make the
premises conform, as the case may be, all monies paid shall be refunded, all obligations
of all parties hereto shall cease and this Agreement shall be void without recourse to the
parties hereto. The SELLER shall not be required to expend more than $25,000.00 under
this provision.
The BUYER shall have the election at either the original time or extended time for
performance, to accept such title as the SELLER can then deliver to the premises in their
then condition and to pay the purchase price without deduction, in which case the
SELLER shall convey such title.
If the SELLER shall be unable to give title or to make conveyance as above stipulated,
any payments made under this agreement shall be refunded, and all other obligations of
either party hereunto shall cease but the acceptance of a deed and possession by the
BUYER shall be deemed to be a full performance and discharge hereof, except for those
provisions which by their terms are to survive the delivery of said deed.
ADDITIONAL DOCUMENTS SELLER agrees to sign at the closing statements to the
following effects, prepared by BUYER'S Attorney, for the benefit of the BUYER, Lender
and/or the Title Insurance Company that:
(a.) there are no persons in possession of the premises;
(b.) no work has been done to the premises which would entitle anyone to claim a
mechanics lien on the premises;
(c.) no structures on or usage of the premises encroach on abutting land, and no one has
made such claim, and no abutters structures or usage encroach upon the premises;
(d.) SELLER is not a foreign person subject to the withholding provisions of the Internal
Revenue Code.
Each party agrees to remain liable for correcting adjustments made at the closing based
on information provided by outside sources.
Each party agrees to sign additional documents at or after the closing as are reasonably
required by BUYER'S Lender, Lender's counsel, BUYER’S counsel or SELLER’S
counsel.
BROKERS COMMISSION It is understood that a broker's commission as agreed on
the said sale is to be paid by the said SELLER to The Murphys Realtors provided said
sale is consummated.
WARRANTIES AND REPRESENTATIONS
REPRESENTATIONS OF SELLER
SELLER represents to the best of its knowledge and belief:
a) There is no violation of any covenants, restrictions, agreements, conditions or
zoning ordinances affecting the premises.
b) SELLER has not received any notice nor has any communication been received
by SELLER from any public authority that there exists with respect to the
premises any conditions which violate any local, county, state, or federal law,
rule, regulation, ordinance or the like, which has not been heretofore rectified.
SELLER further represents that SELLER has no knowledge of any betterment
approved or pending by the municipality in which the premises are situated, other
than an Enterprise Fund for flood control and stormwater management systems,
which has been created and will result in increased taxes or fees against the
premises. The SELLER shall give notice to BUYER if SELLER receives any
such notice or becomes aware of any such assessment or violation prior to the
closing date.
c) SELLER has no knowledge of any litigation or proceeding, pending or
threatened, against or relating to the premises.
d) There are no pending divorce, bankruptcy, or foreclosure proceedings, or a
shortage of mortgage payoff proceeds, or other facts in existence that may cause
the SELLER to delay the transfer of title.
e) SELLER has full power to execute, deliver and carry out the terms of this
Agreement.
REPRESENTATIONS OF BUYER
BUYER represents to the best of its knowledge and belief:
a) BUYER acknowledges that the premises will not be heated during the winter
season.
b) BUYER is a duly organized and validly existing corporation, has full power and
has taken all necessary action to execute, deliver and carry out the terms of this
Agreement and the person signing this Agreement on behalf of the BUYER is
duly authorized.
The BUYER acknowledges that the BUYER has not been influenced to enter into this
agreement nor has the BUYER relied upon any warranties or representations not set forth
or incorporated into this agreement.
NOTICES Any notice required to be given under this agreement may be given by
facsimile copy or email to the attorney for the BUYER or the SELLER, as the case may
be, and if so given shall be deemed given when faxed or emailed.
DEFAULT. If the BUYER shall fail to perform the BUYER’s obligations herein, all
deposits made hereunder by the BUYER shall be forfeited by the BUYER and retained
by the SELLER as liquidated damages and as SELLER’s sole remedy at law or in equity.
Both parties specifically consent to the deposits as the acceptable measure of SELLER’s
damages regardless of any subsequent sale price which the SELLER may receive for the
premises. If the SELLER shall fail to perform the SELLER’s obligations herein or arising
under the Option Agreement dated July 26, 2013, between the parties, all sums paid by
BUYER, including the $25,000 option payment and the additional $25,000 deposit, shall
be refunded to the BUYER.
CONCLUDING PROVISIONS This agreement may be executed by facsimile and/or
electronically transmitted signature and/or in any number of counterparts, each of which
shall be deemed and agreed to be an original, but all of which, taken together or with
appended counterpart signature pages, shall constitute one and the same agreement. It
shall be sufficient that the signatures each party appear on one or more of such
counterpart signature pages.
This contract shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts. This Agreement is the entire agreement between the
SELLER and the BUYER and no representations made extrinsic to this Agreement shall
have any force and effect.
IN WITNESS WHEREOF, the said parties hereto, and to another instrument of like
tenor, set their hands and seals on the day and year first above written.
Signed and sealed in presence of:
SELLER:
Witness Gail M. LaBarge
Date:
BUYER:
Valley Community Development
Corporation
By:
Witness Joanne Campbell
Its: Executive Director
Date:
EXHIBIT B
TERMINATION OF
PURCHASE AND SALE AGREEMENT
THIS TERMINATION OF PURCHASE AND SALE AGREEMENT,
effective as of July 26, 2013, by GAIL M. LABARGE, having an address at 835 18th St.,
Apt. 602, Vero Beach, FL 32960, hereinafter called SELLER, and VALLEY
COMMUNITY DEVELOPMENT CORPORATION, having a place of business at 30
Market Street, Northampton, Massachusetts, hereinafter called BUYER.
WHEREAS, SELLER and BUYER entered into an Purchase and Sale
Agreement dated July 26, 2013, with respect the purchase and sale of the premises
situated at 256 Pleasant Street, Northampton, Massachusetts (as amended, the
“Agreement”), as amended by a First Amendment to Purchase and Sale Agreement dated
as of January 31, 2014; and
WHEREAS, the parties desire to terminate the Agreement and declare the
Agreement null and void ab initio.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
The SELLER shall return all deposits made under the Agreement, and the
Agreement is hereby terminated, and all obligations arising under the Agreement are
declared null and void ab initio.
IN WITNESS WHEREOF, the said parties hereto, set their hands and seals
hereto effective as of July 26, 2013.
Signed and sealed in presence of:
SELLER:
Witness Gail M. LaBarge
BUYER:
Valley Community Development
Corporation
By:
Witness Joanne Campbell
Its: Executive Director
EXHIBIT C
Affected Premises:
256 Pleasant Street
Northampton, MA
Book 2623, Page 218
Book 8496, Page 325
NOTICE OF OPTION AGREEMENT
Notice is hereby given of the following described Option Agreement:
PARTIES TO OPTION AGREEMENT:
OPTIONOR: GAIL M. LABARGE, having an address at 835 18th St., Apt. 602, Vero
Beach, FL 32960
OPTIONEE: VALLEY COMMUNITY DEVELOPMENT CORPORATION, or its
nominee, having a place of business at 30 Market Street, Northampton, Massachusetts
01060
DATE OF EXECUTION: July 26, 2013
DESCRIPTION OF PREMISES SUBJECT TO THE PURCHASE OPTION
AGREEMENT:
The premises owned by the Optionor situated at and known as 256 Pleasant Street,
Northampton, Massachusetts, more particularly described the deed of Charles J. Paquette
to Gail M. White, dated August 1, 1985 and recorded in the Hampshire Registry of Deeds
in Book 2623, Page 218 and deed of Charles J. Paquette and Elizabeth V. Paquette to
Gail M. LaBarge, dated October 21, 2005 and recorded in the Hampshire Registry of
Deeds in Book 8496, Page 325. Gail M. White is now known as Gail M. LaBarge.
(“Premises”).
PURPOSE OF PURCHASE OPTION AGREEMENT:
Pursuant to the Option Agreement, the Optionor has granted to the Optionee the
exclusive right to purchase the Premises from the Optionor in accordance with the terms
and condition of the Option Agreement.
TERM OF THIS NOTICE:
Commencing July 26, 2013, and ending on March 31, 2015.
WITNESS the execution hereof under seal by the said parties to said Option
Agreement.
Signed and sealed in presence of:
OPTIONOR:
Witness Gail M. LaBarge
OPTIONEE:
Valley Community Development
Corporation
By:
Witness Joanne Campbell
Its: Executive Director