HomeMy WebLinkAbout2003-09-12 Option Agreementip 2303 08:45a
Sep 12 03 10 :46a
KUEPPEPS HAC'EL aKUEP , PA
Q?:rIoN .gRELMEPt'i'
RECITALS:
Seller is the owner in fee simple of the end located within Washington County,
Minnesota, legally described as follows:
6512976599 P.02/13
This Option .A.gcernent (the "Aptctnccc ") is made and ente-red into as of
Septe�bcr, 2003, by and � this I �� day of
y R d between Robert L, $rarke (the "Seiler"), and J.T.B. ProperCics, L.L.P.
a Minnesota Limited liability '
ty �r� ip
Lei 2, Blixk 1, Bra city Wtit Its1 Addition..
Purchaser desires to obtain from Seller an exclusive option (the "Option")
Prcpe�y ( defined below). P � to purch� the
Seller is willing to t the Option on the terms set out below.
THEREFORE, in corn ideration of the payment to Seller of 5 0�
� o , 00, the rrt u mal
covenuts and agreements contained herein, and other valuable couideratlon, the receipt
s�cicacy of which z.rc hcreb p and
y acknowledged, the pa t agree as fofows:
1.0 Pro env S 'L 'j to o . ti on, Tire~ real property subject ect t
all, 1%t net less P' �' � ehe Option shall be
the al], of the i� legally de _scribed above, and all rights, rivile es e e
tener�,e�t�, bercdi belonging privileges, asen� nts,
.men is and appurtenances thereto (breinafter cumulatively rtfc d
to in this Agre:rnent a3 the " o e "
on to 1>urt e Pro (the " . Seiler he- eby grant.5 to Purchaser for the p�criod
Option Pe tie ' on the date hereof and ending .
� a � �] �� � �.�� p.I�1, �oC?� �T1e9DCa t1fDe
on e "Optiorn Expiration Time ") the excluive right and option to
�m r 0 fDr " �{ � d i
� �3u�'C�S�
Pe Y rh "Purchase Price (as herti f er defined) payable in full exercise of
upon
Option, which shale o�cu.c simuit.an the
eausly with the closing of the subject transaction.
3.0 P u.roh . The p urc has a ri c ''Purchase Price" "
sue, of Ei t p � } o the Property shall be the
Dollars (S8 OO) per square foot of land contained within
lurch aye ?rice a the P�rap�rty. The
c s!�ll be payable to Seller in cash, certified check or wire twofer
paid for this �r on the Date of
Closing. The ��,�pp
P option shad be crydit.ed t the Purchase Price if this option is o
exerciscd; it is riot refundable in any event. Li E � A � �
4.0 Exercise of * +► j•n.
(A) Purchaser shall exercise the Option only in its entire:), ,
within the Option P p Y , n �'� by delivering to Seller,
p Period, the balance of the Purchase Price due from Purchaser, and closing
subject transaction contemporaneously there�ri�. g eh�
� The Option may � exercised only if
Purchaser
shall huavc provided Seller with the "Option Exercise Notice" attached her
Exhibit A, not Titer than five (5) days prior to the date p Ito as
urcha9cr' cxcccisGS the Dprion.
Purchaser acknowledges that, subject to the terms '
Oft�5�4g�CC� ITent, in the eVtZt that Purchaser
P. 2
p
$so
4
Sep 2e03 08:45a
Sep 12 03 10 :4?a
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KUEpPERS HACKE L KUEP , FR
exercises the Option„ Purchaser shall be deemed to have accepted the Property in "as is"
condition, and with all faults.
(B) Unless the Option i thus,cxerci5e.d by Purchftser prior to the Option Expiration
Time all P rcbascr's rights, options and privileges hereunder as to the Property shall
a utomaticalIy &nd l cxpirc at the Option Expiration Time and be of no ft her force or efet
whatsoever and neither Purchaser nor Seller shall have any furthzr liability or obligation to the
other under this Agreement, except as provided at Section 6.0 below.
5.0 Puy .. er to Determine prior a xcrc'si - the 0 do That Sel ' s Title to the
Prose is • :eta .le. Prior to ctccting to exemisc the Optisn, Purchaser shall satisfy ieself t .at
Seller's title vo the Property is marketable and is not subject to conditions Buyer.
unacceptable to Bu
F Y
In this connection, Purchaser shall obtain an ALTA rornraitmetnt for an owner's title insurance
policy from a tidt insurancz company rnutualty acceptable to Seller and Purchaser. Seller does
not have and sh&iI net provide an abstract of title. Purchaser shalt be solely responsible for all
commitment and pre um charges for any policy of title nsuranct for the Property, rovided
provided, that Seller shat be responsible for any abstracting charge in connection therewith,
S,
whether or not the Option is exercised.
5 , '=baser hall Procur : ; Sarvc a is EK •=se. Purchaser sha1, at its expense,
procure a survey of the property prepared by a registered land surveyor to determine, among
)the r things, the square footage of land within the property.
6.0 Poach to ins ct a Pra e P ' r tQ xecis' th O tior .
(A) Prior to electing w exercise the Option, Purchaser shRll take such steps and
:tions as it caasiders to be neces any or app d a t e t satisfy purchaser Nily as to;
(i) The present condition and fitness of the Property for Purchaser's untended
purpose, as well as the present aAd prospective use and vaiuc of the Property;
(ii Soil and subterrancan conditions, load bearing capabities and aft other
characteii5tics, qualities and elements of the Property, including t e
enviraruneztzti S tatus of the Property; and
(iii) Building, use, zoning and environmental laws, ordinances and regulation. loci
state and federal) applicable in any way to the P rep cx or to any part or port i o n
thereof.
551c976599 P.03/I3
1
(B) During the Option Period, Purcha cr and its at em i.oyces, consultants and
contractors sh�l P
Purchaser's sole cost and expense, be entitled to:
CO Enter upon and examine, inspect and test the Property and each and cvec
thei cod', provided that such acts are y P art
P perform cdr �n tcasonab� ways and without
damaging the Property;
P.3
P.5
Sep 2S 02 08: 46 a
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KLE RS F CKE u..kuE f FR
6512376S9g P.04,
(ii) Seek such municipal are d other governmental crmit. or a ro vals e� Purch.as
p pF er
deems necessary or appropriate;
(iii) Determine the condition of the Property, whether Purchaser`s ro sed use of the
Property p �
is ecoromica ly feasible, and whether appropriate facing is oksinable
by Purchaser on ttrnis acceptable to Purchaser;
all without cost, expense or liability to Seller. In the tvent that any damage does occur to the
?'roperty as a result orsuch inspections or Testing by Puuehaser, Pur chaser ah& l row tl to
the Property t o the can,d,.itaonthei~'rao was' Agreement. p P Y�� restore
Property in as o f the date o f this Op�i on
P
urchaser shall defend, indemnify and hold Seller h rni e frorn and against ail suits claims,
�
Io sees, damages, costs, expenses and liabilities or (Alm legal, administrative or v
proceedings � r governmental
actions or
A ings (including re. .onable exposes of lit:iEation and attorneys' fees in
connection, with any o f the foregoing) based wean, er;sias out of or rtlatd to any actions of
Purchaser or Purchases ag employees or contactors in connection with ente 'n upon,
n � P n
exainining, ianspecting and/or testing the Property pursuant to Section 6.0 (B)(i.); ro vide provided,
howrver, that nothing h erein 31111.11 im any liability upon Purchaser merely by reason of
disclosure of the existence of hazardous substances on the Pro d.iscovere~d by P
Pte' Y arches es in
the coupe of punter's due diligence investigation of the Property. The obligation to
indemnify �d h � �� g
' Seller harmle, as provided herein, shall survive a termination of this
Option.
7.0 Use of Property. Until gate of Closing, Furcb.a.er shall not have any right to use
i iJ
or possession of t he Property except to the extent provided at Section 6.0 above.
8.0 B ,. • L: a Fee' an • •mmi ssio s. Seller and Purchaser respectively
indemnify, defend and hold harmless ' c other � agree t o
►h er fb om and against any and all claims, fees,
commissions and suits of any real estate broker or agent with res to services claimed to hay
been�nd�d�' � e
for or on behalf indemnifying pay in C01111 tion with the execution oft is
Agseertteat or t e transaction set forth herein,
9.0 Seller's wa ' es Seller hereby warrants that:
(A) Conveyance of the Property shall be by warranty deed, with such exceptions
; p � � � , p � ns as
are disclosed on
e title commitment, Seller sal u the proceeds of the s tion to pay the b �P P �' off at
g balance of any existing rnor;gage or mortgages.
(B) The Property is not subject to arty contract or Tease.
( Seller has not received any r tice nor is it aware of an pending action to take
eminent domain or by deed in y Pe � a by
Y in Lieu thereof all or € ny portion of the Property.
(D) Seller Ls not a "foreign person as contemplated by Section 1445 of rte internal
Revenue Code.
3
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KLJErPERS HRCKELBKUEP, PP
55I29 ?6599 P.85'1:
(E) To the best of Seller's acts knowledge, no unrecorded covenant, restrictio or
agxecmcnt exists, which would serve the exercise of this. Optian,, and which materially and
adversely affects the Property, the use thereof, or the value of he Property, except easements
shot on the recorded plat and a res trrction established.by an ins -n ment dated October 22, 1997
(the Ashland ressrictiori) anal. a restrictaori established by an instrument dated November 16, 2000
tithe TCF r estricti on).
(F) To the best of S eil er's a t'u al knowledge, no portion of the Property is located
within an area desa mat d as a "flood plain" or "flood prone area" under any statute, regulation or
ordinance.
(0) Exccpt for any limitations which may be effected by the . Minnesota Department n
Transportation, the County of Washi.rlgtor� or the City of Oak Park Heights, to the best of Seller's
actual acknowledge, no fact or condition exists which would result in dm wralliaation of accers
Frcm. the Property to the streets and roads adjoining or situate on the Property or to any existing
F� �' g
or proposed sewer or other utility facilities cr~v cing, pear
ad o�.n �' s tud on the Pro .
) To the hest of ScL1 cr's actual knowledge, there are 110 contracts affecting the
Property that wilt remain in eFfect following the exercise of the Option other than those
described above.
( To the be of Se11er's actz,ua1 knowiedge, there is no well or on-sitz septic system,
wi the the Pro
pertY
The rrpre,senvjorts and wranties set ❑ut in this Agreement shall be coutinuing and shall be
deemed to survive the ctosi.xig and shall not be merged in the delivery and e,' ution oithe deed
or other lass rnertts of conveyer eaIkd for in this Agicment. Seller agrt z4 to indemnify and
hold Purchaser
mess from all claims, expenses and liabilities (including rcasoanble attorne
fees) incurrtd by Purchaser as a result of Seller's brtact of any of the Co o ing.warran'ies.
10.0 Fro lion of Real Estate axes if Purrchas remises e tion. if PurOiaser
exercises the Option:
(A) All rcai astute taxes and instalirner is of special assents that axe able
on the Property in 2002 and in prior �Y
' p yes shall be paid in full by Seller on err before the Date of
Closing.
(B) The real estate taxes payable on the Property in 200 hail be prorated as between
Seller and Purehas.er so that Seller shall be responuible for that orlon thereof that io dote '
P wed
by the taco to three hundred sixty -fivc (365) of the number of days in 20Criltrp to but no
including the Date of Closi hereunder, t and Purchaser shall be responsible for the ba]ance r
therea f; and
(C) Purchaser shall pay ail other taxes that ar payable on the Property in 20
there &f , p
4
P
Pa
S'�
Sep 29 08:46
Sep 12 03 10 :48a
.Dcr -: 4-eetu 11:04 KUEPPE
(D) Seller shall pay in full all special assessments levied e
ou the Property and
certified for payment to Washington County as of the Date of this Option and all other
assessments are to be paid by the Buyer. ..-
(E) Seller shall pay in iJ any taxes deferred under the
so Greco Acres 9tsruir
for period prior to 2003,
t I , 0 avznent of fasts_ Purchaser shall b� solely res i
ai � casts, fees snd expenses nse5 f any � ions b[c for and shad timely pay
s ' p y r quired rezoning or subdivision of the Pro axk
dedication fwes, connection charges alai! kinds P P
Suitt deed tax �n Se z and �l athcr �overnmcn[a� exactions bother than i er's conveyance) of eve -ry kind in connection with a rovals for
development of the Property. FP and the
12.0 - pra ri ded that Purchaser has `ved
by this A came t � the ��tiot� Excr�ise Notice required. �s a condition to the exercise of the Option, PurCh.&ser may
Option by closing this �saction on the date r�isc the
dam spe.cified in said notice, which date must be within
Option Lax excise Period unless the arses � than
the �
�nl ass the P � mutually agree in writing upon a later date.
parties agree upon a different place for clos1r th closing of the RC, e for Seller. � f �g shah t kc pace at the
�
13.0 Suce-essors and r4ssr,gw, This Ape erneat s
the �nefi t of Seil� and Purchaser, ail b� hid �� upon and shall inure to her and their respective successors and the assi s• provide
h o w cv�r, � c �u�has Purchaser's � is hereunder rnay � ' P d i
y� be igned one to an entity forme
fay- purposes of acstzir title to the Property, Y � , �Y by Purchaser
e�ect�ve o
as or and prov�d�d that such ass��ent shall be
e Date of Closing,
14.0 T Time is a� � � at a� Ct seti� a �' d 5�t, .meS � rind �a� rl of �e
Age- aunt.
1 5. 0 N oti-ces, Any notice requires or '�
be either prS4r�..I1 s eve �tt
� d hereunder shall bc � n ��� and shall
y d or mailed by ccr lied mail, postage e aid re
xu ght courier � c r� cc such as � �' p turn receipt requested,
or by o ye r
F�d� Express, �t#x-cssed:
If to Purchaser, at;
LT. B. Properties, L.L.P.
do
3040 Woodbu Drive
Woodbury, MN 55125
If to Seller, at;
Robert L. &ackey
$0 East Arlington
St. Paul, M 551.17
5
6 5129 76599 P.06
or, in eider cage, such other address as Seller or p
time desi ng-te by �h,asCr, as the case clay be, may from time to
8 y written notice to t other party hereto, ;Mailed nonce &hall be dee
mad to have
P a 8
F
Oct Ci 1. 03 07 a 47a
SEP- 30 16 ; 54
a
r . e_ .,. •.■ u S..r . t .
• s P 12 03 10:48a
i t 2€ 4
_STBRDDK DE')ELO
KUEPPER5 HPCKEU <1EP, Pfl
bccn given three (3) days follewine the date it is mailed es herein avid Personally delivemt
notice shall be dear i giver on the date the same is delivered.
16 vv n ng . f Purchaur exercises the Option, all the tenors,
conditions, covenants and agieerttents contained herein siail swvive the Closing hereunder et1d
shall thereafter eonbcve in Fuil farce find cf 4ct.
17.0 Enti eat>nt. This Ageeemtzt eu bodies the cntu'e Hsrtement between
Seller =d Purchaser in relatimshjp to the faction cont nplated hcrehy, and here have heed
and arc-no covenants, se,rt talents, representatious, warranties or tindckings of &lay sort or kind
between the parties hereto with mama uhcre o other Ion the spetif callr set forth herein z.nd
to the axnexed e1'016:neets. " Cis Averment may be amended only by a'mitten inst'nutsent
executed by bath Seller and Fwchaser.
.fl e The headings o f 6e pArit o f this Ai:x=71cm are for canvecuencr
of refc;cnce only and do not farm a pant h ca `and arc not to be tarn into account in 11151 wg in
ante thing 9t' Cun3t ng the text of this A u y put thereof.
ernt or an �
19 , tie R ' trnts. Words of ally gewiec used in this 4peccacnt shell be
held and Loo.strued to include any othu gender. and words of & sin ,
include the plural and vice v singular number shalt be held
A ersa, unless the context requires otherwise.
20.0 flounte . This AglctmeAt maybe cxecut d in any tsurnbex of mute
eLrh of which shsll.he deviled to be an original but all of Mach hall mss,
same a s constitute but one an�f the
PURCHASER:
.T.B. PROPER'
B .
Its
SE L R:
6
6516466445 P.10
r • ti-
6512976 99 P.87
Rout j.,. Bcackey
soNDER s.p.oug
M. $racket', wife of Robert L. 8rackey, consents to the foregoing Grant of do
g � Option
n
R.
Pat
Sop 23 03 03:47a
Sep 12 03 10:4B
atr- l e 1 l ' ®5
KIJE'PERS H1 Pfd
and agrees to join as a Crranwr i the de d to be delivered by Seller at Closing.
7
65129 ?6559 P.06
Pa 10
KFC
DROPPO FOODS INC.
PH. 715 -386 -9226
1201 COULEE ROAD
P.O. BOX 1124
HUDSON, WI 54016
Memo •
ROBERT L o BRAG KE Y
80 EAST ARLINGTON AVENUE
ST. PAUL, MN 55117
USA
LOUIS GALLAND
LIINDA ERGEN
4718 MCDONALD DRIVE PL N
STILLWATER, MN 55082-2152
PAY TO THE
ORDER OF
PAY
TO THE Two Thousand Five Hundred and 00/100 Dollars
ORDER
OF
6592
I000 G 5 9 2 1:091180725 201.0 ❑ li n Se
Sep 19, 2003
DATE
CITIZENS STATE BANK
WOODVILLE - HUDSON - ROBERTS
MENOMONIE - ELMWOOD - GLENWOOD CITY
79-725 -916
2158
17-2/910 2515
6592
* * * * * * * *$2, 500. 00
AMOUNT
IVP
Sep 29 03 08:45a
Sep 12 03 10:48a
btr-1 d -- 2Za3 11:05
Mr. Robert L Bra ckey
80 East Arington
St, Paul, MN 55117
Re; Notice of Exercise or Option Agreement dated September 12, 2003
Robert L. Brackey J.T.B. Properties, L.L.P.
Dear Mr. &rackey:
n accordance with Article 4 of the subject Option Agreement (the "Agreement) the
undetsig ced Purchaser, as the holder of the Option uncle% the Agreement, dons herby deliver to
you this Option Exercise Notice, advising you that the Option described in the Agreement will be
exercised by our closing the subject tarmaction on
Please con= us to confirm the time for the closing.
<UEPPE S RP CKELa'<LEP , AR
EXHIBIT A
OPTION EXERCISE NOTICE
, U . f 4 2 CO
Sincerely yours,
I.T.E. PRDPERES, L.L.P
%1 A
651 29'76599 P.05/13
P 3
p.9
JR[ 12 4 - BROOK DELJELO 651646C.- P. 01/21
TON
F
:#.41
PTO A EE ENT
WHEREAS, Robert L. Brackey ("Sider") and J.T.B. Properties, L.L.P. ("Purchaser")
entered into an Option Agreement as of September 12, 2003 for the purchase and sale of the
ral.estate legally described as Lot 2, Block 1, Brackey West 2 Addition, Washington
County, Minnesota; and
WHEREAS, the parties mutually desire to modify paragraph 13 of said Option Agree-
ment entitled Successors and Assigns.
NOW THEREFORE, in consideration of the mutual agreements to modify the original
Option Agreement between the parties, Seller and Purchaser agree that paragraph 13 of the
Option Agreement shall be stricken in its entirety and the following shalt be substituted in lieu
thereof:
13.0 Succes§or,.and.Assign$. This Agreement shall be binding upon
and inure to the benefit of Seiler and Purchaser, and their respective succes-
sors and assigns; provided, however, the Purchaser's rights hereunder may be
assigned only to an entity formed by Purchaser for purposes of acquiring title to
the Property, and/or one-half to S and H Incorporated, an Oregon corporation,
and one-half to Louis V. Garland and Walt Cressman or an entity to be formed
by Gailand and Cressman, and provided that such assignment shall be effective
as of the Date of Closing.
IT IS FURTHER AGREED that the Option Agreement entered into between the Seller
and Purchaser as of September 12, 2003 shall in all other respects remain in full force and
effect.
Dated:
SELLER:
Robert L. I3rackey
BUYER:
J.T.B. PROPERTIES, L.L.P.
Its:
m 412 t,, -41 ?