HomeMy WebLinkAbout5A2 Option to Purchase Agreement & Memorandum of Option (NDIC) - Signed1
OPTION TO PURCHASE AGREEMENT
THIS EXCLUSIVE OPTION TO PURCHASE AGREEMENT (the “Option Agreement”) is
made and entered into by and between the South Bend Redevelopment Commission, governing body
of the South Bend Department of Redevelopment (“Commission”), Our Lady of the Road,
Incorporated, an Indiana non-profit corporation, with its registered address being 424 S. Michigan
St., #11162, South Bend, IN 46634 (“OLR”), and New Day Intake Center, Inc., an Indiana non-profit
corporation with its registered address being 424 S. Michigan St., #11162, South Bend, IN 46634
(“NDIC”) (the Commission, OLR, and NDIC are each sometimes referred to herein as a “Party” or
collectively as the “Parties”).
PRELIMINARY STATEMENT
OLR is the owner of certain real estate, as more particularly described in Exhibit 1 to this
Option Agreement (the “Option Property”). NDIC and OLR are separate 501(c)(3) organizations
with complementary missions and overlapping leadership. The Commission and NDIC have
entered into a certain Purchase Agreement dated August 14, 2025 (the “Purchase Agreement”)
through which the Commission has agreed to sell to NDIC certain other real estate (the “Project
Property”) for the intended use as a Lower-Barrier Shelter (the “Project”). The Commission and
NDIC have also entered into a certain Development Agreement dated August 14, 2025 (the
“Development Agreement”) relating to NDIC’s construction of the Project and the Commission’s
contribution of funding towards the Project.
NDIC currently operates a lower-barrier emergency shelter at the Option Property. Upon
the completion of the Project, the Parties intend for the current operations at the Option Property
to transition to the Project Property, at which point the Commission shall be entitled to an exclusive
option to purchase the Option Property (“Option”), if certain conditions are present, and, in the
event of said exercise of said Option, OLR and its successors and assigns agrees to sell the Option
Property to the Commission, upon the terms and conditions hereinafter set forth. Unless otherwise
specified herein, all capitalized terms have the meaning set forth in the Development Agreement.
In consideration of the mutual promises contained in this Option Agreement, the Parties
agree to the following:
AGREEMENT
1. Exclusive Option to Purchase. OLR hereby grants the Commission the exclusive
Option to purchase the Option Property, subject to the terms and conditions set forth herein. The
Option shall commence upon the earliest of the following events:
(a) The Mandatory Project Completion Date in the Development Agreement;
(b) The date the Project is completed under the Development Agreement, as evidenced by
the issuance of Certificates of Occupancy; or
(c) A default by NDIC under the Development Agreement, including any material breach,
failure to perform, or event of default defined in the Development Agreement, and
which remains uncured beyond any applicable cure period (see waiver in Section 13).
Once triggered, the Option shall remain in effect for a period of five (5) years, unless extended by
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mutual written agreement of the Parties (the “Option Period”). The Parties agree that the
consideration for this Option shall be the Commission’s payment of the Funding Amount as set
forth in the Development Agreement (the “Option Payment”). If the Commission does not exercise
the Option within the Option Period, all rights under this Option Agreement shall terminate, and
NDIC shall retain any Option Payment paid as consideration for granting the Option.
2. Exercise of Option. Commission may exercise the Option by giving notice to OLR
in writing during the Option Period in the manner provided for the giving of notices in Section 11
of this Option Agreement.
3. Purchase Price. In the event of exercise, the Commission shall purchase from OLR
and OLR shall sell to the Commission, the Property for the purchase price of One Dollar ($1.00),
as well as any costs typically paid by the seller at closing, including but not limited to taxes, closing
costs, and transfer fees (the “Purchase Price”).
4. Permitted Sale to NDIC. Notwithstanding any other provision of this Option
Agreement, OLR may, upon providing advance written notice to the Commission at least thirty
(30) days prior to the conveyance, convey the Option Property to NDIC at any time prior to
Commission’s exercise of this Option. In the event of such conveyance, the Commission’s rights
and obligations under this Option Agreement shall remain in full force and effect and shall be
binding upon NDIC, who shall assume all obligations of OLR under this Option Agreement. The
Commission acknowledges and agrees that this Option shall not prevent or restrict OLR from
conveying the Option Property to NDIC, and NDIC expressly agrees to be bound by the terms of
this Option Agreement in the event of a conveyance under this Section. However, OLR shall not
be entitled to convey the Option Property to any other party from the Effective Date to the end of
the Option Period.
5. Purchase Agreement and Closing. If the Option is exercised, the Commission and
OLR will promptly negotiate the terms of a purchase agreement for the Property, which shall
include the Purchase Price and shall specify that the Commission shall accept Property described
in Exhibit 1, as-is with all faults. The Commission and its counsel shall be responsible for
preparing the initial draft of the purchase agreement, which will be in a form customary for
transactions of similar scope and significance to the Parties and, with the exception of the
foregoing, will include customary representations, warranties, indemnities, covenants, customary
conditions of closing and other customary matters. At closing, OLR shall deliver a warranty deed
free and clear of all encumbrances excepting and subject to all legal highways, applicable zoning
ordinances, and easements of record and real estate taxes and assessments prorated in accordance
with local custom.
6. Recording of Memorandum. The Parties shall concurrently herewith execute,
record, and place of record a memorandum of this Option Agreement, in the form attached hereto
as Exhibit 2, in the office of the County Recorder of St. Joseph County, Indiana.
7. Governing Law and Jurisdiction. This Option Agreement will be governed by
Indiana law, without regard to principles of conflicts of law. Any dispute between the Parties shall
be heard in any court of competent jurisdiction in St. Joseph County, Indiana.
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8.Benefit of the Parties. This Option Agreement is made solely for the benefit of the
Parties, and no one else shall acquire or have any right under (or by virtue of) this Option
Agreement.
9.Binding Effect; Assignment. This Option Agreement shall be binding upon and
inure to the benefit of the Parties and to their respective successors and assigns. The rights and
obligations contained in this Option Agreement shall not be assigned by any Party, except that
OLR may assign its rights and obligations hereunder to NDIC.
10. Amendment. This Option Agreement may only be amended or modified as may be
agreed upon in writing by all Parties.
11.Notices. All notices and other communications hereunder shall be in writing and
shall be furnished by hand-delivery or by registered or certified mail to the Parties at the addresses
set forth below, which may be updated by the Parties from time to time. Any such notice shall be
duly given upon the date it is delivered to the addresses shown below, addressed as follows:
If to the Commission, to:
South Bend Redevelopment Commission
c/o Department of Community Investment
227 W. Jefferson Blvd., Suite 1400 S.
South Bend, IN 46601
Attn: Executive Director
With a copy to:
City of South Bend Department of Law
227 W. Jefferson Blvd., Suite 1200 S.
South Bend, IN 46601
Attn: Corporation Counsel
If to OLR, to:
Our Lady of the Road, Incorporated
PO Box 4375
South Bend, IN 46634
Attn: Jonathan Schommer
With a copy to:
THK Law, LLP
212 E. LaSalle Ave.
Suite 100
South Bend, IN 46617
Attn: Jay Lewis
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If to NDIC:
New Day Intake Center, Inc.
PO Box 11162
South Bend, IN 46634
Attn: Sheila McCarthy
With a copy to:
Sopko, Nussbaum, Inabnit & Kaczmarek
Attn: Richard A. Nussbaum II
210 S. Michigan St
Suite 500
12.Severability. If any term, provision, covenant or restriction contained in this Option
Agreement that is intended to be binding and enforceable is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions contained in this agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
13.Waiver. Neither the failure nor any delay on the part of a Party to exercise any right,
remedy, power, or privilege under this Option Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power, or privilege preclude any other or
further exercise of the same or of any right, remedy, power, or privilege with respect to any
occurrence shall be construed as a waiver of any such right, remedy, power, or privilege with
respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver. Notwithstanding the foregoing, each Party
irrevocably waives any present or future objection to the exercise of the Option triggered by a
default under the Development Agreement (as defined in Section 1). This specific waiver shall
survive termination of this Option Agreement and be enforceable independently of the general
waiver provisions above.
14.Authority; Legal Representation. Each undersigned person executing and delivering
this Option Agreement on behalf of a Party represents and certifies that he or she is the duly
authorized officer or representative of such Party, that he or she has been fully empowered to
execute and deliver this Option Agreement on behalf of such Party, and that all necessary action
to execute and deliver this Option Agreement has been taken by such Party. Each Party
acknowledges it has had the opportunity to consult with independent legal counsel of its choice
regarding the terms and conditions of this Option Agreement prior to its execution.
15.Time. Time is of the essence of this Agreement.
16.Entire Agreement. The Parties acknowledge that upon final execution of this Option
Agreement, all previous statements, proposals, offers and information and any oral statements or
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understandings are hereby rendered void, null, and of no legal consequence in connection with the
subject matter hereof and that this Option Agreement represents an expression of the entire
agreement between the Parties with respect to the subject matter hereof and supersedes all prior
or contemporaneous written or oral agreements or understandings of any kind between the Parties
with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Option to Purchase
Agreement on the 14th day of August 2025 (the “Effective Date”).
SOUTH BEND REDEVELOPMENT COMMISSION
______________________________
Troy Warner, President
ATTEST:
______________________________
Eli Wax, Secretary
OUR LADY OF THE ROAD, INCORPORATED
______________________________
Jonathan Schommer, Executive Director
NEW DAY INTAKE CENTER, INC.
______________________________
Sheila McCarthy, Executive Director
EXHIBIT 1
Option Property Description
Tax ID No. 018-2193-724804
Parcel Key No. 71-08-04-226-002.000-026
Legal Description: LOT 1 ARBORGATE INN
Commonly known as: 3233 Lincoln Way W., South Bend, IN 46628
EXHIBIT 2
Memorandum of Option Agreement
MEMORANDUM OF OPTION AGREEMENT
This Memorandum of Option Agreement (this “Memorandum”) is entered into as of the 14th day of
August, 2025 (the “Effective Date”), by and between the South Bend Redevelopment Commission, governing
body of the South Bend Department of Redevelopment (“Commission”), Our Lady of the Road, Incorporated,
an Indiana non-profit corporation, with its registered address being 424 S. Michigan St., #11162, South Bend,
IN 46634 (“OLR”), and New Day Intake Center, Inc., an Indiana non-profit corporation with its registered
address being 424 S. Michigan St., #11162, South Bend, IN 46634 (“NDIC”) (the Commission, OLR, and
NDIC are each sometimes referred to herein as a “Party” or collectively as the “Parties”).
WITNESSETH
WHEREAS, OLR is the owner of that certain real estate situated in the City of South Bend, County
of St. Joseph and State of Indiana, commonly known as 3233 Lincoln Way W., which is more particularly
described on Exhibit A, attached hereto and made a part hereof as if fully rewritten herein (the “Option
Property”); and
WHEREAS, NDIC and OLR are separate 501(c)(3) organizations with complementary missions and
overlapping leadership; and
WHEREAS, NDIC operates the lower barrier emergency shelter currently located on the Option
Property; and
WHEREAS, the Commission and NDIC have entered into certain agreements relating to the
construction of a one hundred twenty (120) bed Lower-Barrier Shelter (the “Project”), including a certain
Development Agreement dated August 14, 2025 relating to NDIC’s construction of the Project and the
Commission’s contribution of funding towards the Project (the “Development Agreement”).
WHEREAS, as of the date hereof, the Commission, OLR, and NDIC entered into an Option
Agreement (the “Agreement”) whereby OLR and its successor and assigns granted the Commission an
exclusive option (the “Option”) to purchase the Option Property upon terms and conditions more particularly
set forth in the Agreement; and
WHEREAS, the Parties are desire to record their respective rights and obligations under the Option
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and the parties
intending to be legally bound thereby, the parties hereto hereby agree as follows:
1. The term of the Option will commence upon the earliest of the following events:
(a)The Mandatory Project Completion Date in the Development Agreement;
(b)The date the Project is completed under the Development Agreement, as evidenced by the
issuance of Certificates of Occupancy; or
(c)A default by NDIC under the Development Agreement, including any material breach, failure
to perform, or event of default defined in the Development Agreement, and which remains
uncured beyond any applicable cure period.
Once triggered, the Option shall remain in effect for a period of five (5) years after the Option commences,
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unless extended by mutual written agreement of the Parties.
2.This Memorandum may be executed in any number of counterparts, each of which
counterpart, when so executed and delivered, shall be an original, but all such counterparts when taken
together shall constitute but one and the same Memorandum.
3.The recitals set forth above are true and correct and are hereby incorporated herein by
reference.
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OUR LADY OF THE ROAD, INCORPORATED
Jonathan Schommer, Executive Director
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for said State, personally appeared Jonathan
Schommer, known to me known to be the Executive Director of Our Lady of the Road, Incorporated in the
above Memorandum of Option and acknowledged the execution of the same as his free and voluntary act and
deed.
WITNESS my hand and Notarial Seal this day of _______________, 2025.
____________________________________
____________________, Notary Public
Residing in County, IN
My Commission Expires: _______________________
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NEW DAY INTAKE CENTER, INC.
Sheila McCarthy, Executive Director
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for said State, personally appearedSheila
McCarthy, known to me known to be the Executive Director of New Day Intake Center, Inc. in the above
Memorandum of Option and acknowledged the execution of the same as her free and voluntary act and deed.
WITNESS my hand and Notarial Seal this day of _______________, 2025.
____________________________________
____________________, Notary Public
Residing in County, IN
My Commission Expires: _______________________
This instrument was prepared by Danielle Campbell Weiss, Senior Assistant City Attorney, City of South Bend, Indiana,
227 W. Jefferson Boulevard, 1200S, South Bend, Indiana 46601.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this
document, unless required by law. /s/ Danielle Campbell Weiss
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EXHIBIT A
OLR Property Description
Tax ID No. 018-2193-724804
Parcel Key No. 71-08-04-226-002.000-026
Legal Description: LOT 1 ARBORGATE INN
Commonly known as: 3233 Lincoln Way W., South Bend, IN 46628
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