HomeMy WebLinkAbout2011-09-27 CC Meeting Packet Enclosure Re 5569 Ozark Ave. N. Oak Park Heights
Request for Council Action
Meeting Date September 27 2011
Time Required: 5 Minutes
Agenda Item Title: 5569 Ozark Ave. — Option to Purchase
Agenda Placement New Business // ,
Originating Department/Reque..: > E %c J► son, City Administrator
�1 Requester's Signature �
Action Requested See Below. /
Background/Justification (Please indicate if any previous action has been taken or if other public
bodies have advised):
Following some initial phone conversations, on Monday, September 26, 2011, the City Attorney
and I met with Ms. April Martell, the property owner of 5569 Ozark Ave. in order to determine if
the City can secure an OPTION TO PURCHASE this property.
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It was agreed upon that under the terms of OPTION, should the City Council decide to proceed
with the OPTION TO PURCHASE, the City will have a period of 60 days to provide notice to
the seller that the City does wish to acquire the property. And, that the established purchase price
will be $155,000.00. The current Estimated Market Value of the property is $162,800, (2010). A
non - refundable fee of $500.00 is to be paid to the Seller for providing such OPTION.
Attached is the OPTION TO PURCHASE agreement as prepared by the City Attorney.
Requested Actions:
1. At this time the City Council must determine if it does desire to proceed with the
OPTION. If the Council does, then it should approve the attached Agreement.
2. Assuming the City Council does proceed with the OPTION, the Council may desire
to specify dates for public meetings / outreach.
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„ .t OAK PARK HEIGHTS, MINNESOTA
MI, lhirk 1lci • It..: SEPTEMBER 24, 2011 J' C ..i _
OPTION AGREEMENT
THIS OPTION AGREEMENT is made and entered into the d ay of�1
2011, by and between THE ESTATE OF DAVID EARL FRIEDR1CH, BY APRIL l4ARTELL,
PERSONAL REPRESENTATIVE "Seller" and CITY OF OAK PARK HEIGHTS "Option Holder ".
RECITALS
WHEREAS, Seller is the owner of real property located at 5569 Ozark Ave. No., Oak
Park Heights, Minnesota 55082, legally described as ( "Property "):
LOT (1), BLOCK (4) BREKKE HEIGHTS NO 2
WHEREAS, Seller desires to grant to Option Holder, and Option Holder seeks from
Seller, an exclusive option to purchase the Property upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, it is hereby agreed by and between Seller and Option Holder as follows:
1. OPTION GRANT. TERM AND PAYMENTS.
(a) Grant. For and in consideration of the option payment described below,
paid to Seller, and subject to all of the terms and conditions contained in this Option
Agreement, Seller hereby grants to Option Holder the sole and exclusive option
( "Option "), irrevocable within the time provided for exercise, to purchase the Property
from Seller.
(b) Option Payments. In consideration of Seller's granting of the
Option, Option Holder hereby pays to Seller the sum of Five Hundred Dollars
($500.00), receipt of which is hereby acknowledged. And which payment shall
not apply to the purchase price as earnest money.
(c) Option Term. Subject to the terms of this Option Agreement, the Option
hereby granted shall be exercisable at any time within 60 days of the date of seller's
execution hereof. (the "Option Period ").
2. PURCHASE PRICE. If Option Holder exercises the Option to purchase the
property, Option Holder and Seller agree that the "Purchase Price" for the property would
be One Hundred and Fifty Five Thousand Dollars ($155,000.00), payable in cash or
cash equivalent at closing less earnest money.
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3. EXERCISE OF OPTION. Option Holder may exercise the Option by giving
written notice thereof to Seller during the option period. Such notice shall specify a date for
closing of title transfer on the purchase (hereinafter the "Closing "), which date may come
after the end of the Option Period, but shall not be less than ten (10) nor more than sixty (60)
days after the date of any such notice of exercise of Option. Upon delivery of each such
notice, if any, this Option Agreement and such notice of exercise of Option shall constitute,
in its entirety, the contract for sale of the Property being purchased.
4. TITLE EXAMINATION.
(a) Seller's Title Evidence. After this Option Agreement has been fully
executed, and within ten (10) days after requested by Option Holder, Seller shall furnish
to Option Holder, at Seller's cost and expense, the following:
(1) Title Insurance Commitment. An Abstract of Title, certified to
current date or in lieu thereof a commitment certified to a current date ( "Title
Commitment ") for an extended coverage ALTA Owner's Policy of Title
Insurance ( "Policy ") with a title insurance company acceptable to Option
Holder, insuring title to the Property. The Abstract or Title Commitment shall
include all appropriate judgment, bankruptcy, and special assessment searches.
(2) Survey. Any survey of the Property in Seller's possession.
(b) Option Holder's Objections. Within ten (10) days after receiving the
Abstract or Title Commitment, (collectively, the "Title Evidence "), Option Holder shall
make written objections to title ( "Objections "). Seller will have sixty (60) days after
receipt of the Objections to cure the Objections, during which period any Closing will
be postponed as necessary. Seller shall use its best efforts to correct any Objections. If
the Objections are not cured within such 60 day period, Option Holder may, at his sole
election, terminate this Option Agreement and receive a refund of all amounts paid to date
by Option Holder pursuant to this Option Agreement, or waive the Objections and
proceed to Close.
(c) Title Policy. Option Holder shall pay the premium for any Title Policy
required by Option Holder.
5. SELLER'S WARRANTIES. Seller represents and warrants to Option Holder
that:
(a) As of the date of Closing, there shall be no encroachments from the
Property onto adjoining properties, or any encroachment by structures onto the
Property from adjoining properties.
(b) As of the date of Closing, Seller shall own the Property and be able to
convey the Property free of all liens, encumbrances and other restrictions, except for the
Permitted Encumbrances.
(c) As of the date of Closing, Seller does not have any knowledge of any
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condemnation or any environmental contamination, zoning or other land use regulation
proceedings, either instituted or planned to be instituted, which would affect the value
or use of the Property.
(d) As of the date of Closing, Seller has no reason to believe that any of the
following exists affecting the Property:
(1) any violation of any law, municipal ordinance or other
governmental requirements;
(2) any claim for which a mechanic's lien may be filed;
(3) any right claimed by a third party adverse to Seller's interest; or
(4) any unrecorded contract or agreement.
(e) From the date of this Option Agreement to the date of Closing, Seller
shall deliver to Option Holder a written notice of the commencement of any legal
action by any governmental authority or third party affecting the Property and will make
no concessions or settlements with respect to any such action without Option
Holder's prior written consent.
(f) As of the date hereof, Seller has not used or permitted the Property to be
used, whether directly or through its contractors, agents or tenants, and to the best of
Seller's knowledge the Property has not at any time been used, for the storage, transfer,
transportation or disposal of dangerous toxic or hazardous materials, chemicals, wastes
or similar substances or constituents as defined by federal, state or local laws,
regulations, ordinances or common law, or for the discharge of the same into the
environment or in an unsafe manner or in a manner which may pose a risk to the health
of persons, to the use of the Property or to the environment, whether or not such use,
disposal or discharge is in violation of any law, regulations, or judicial or
administrative order or judgment.
(g) Seller certifies and warrants that Seller does not know of any aboveground
or underground tanks currently located on the Property.
(h) Seller certifies and warrants that there is not any operating well on the
Property.
(i) Seller certifies and warrants that there is not any individual sewage
treatment system on the Property.
The representations and warranties set forth herein shall be continuing and shall be
true and correct as of the date of Closing with the same force and effect as if made at that time.
All such representations and warranties shall survive all Closings and shall not be merged in the
delivery and execution of the Deeds or other instruments of conveyance as provided for in this
Option Agreement.
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6. REAL ESTATE TAXES. All real estate taxes and special assessments due and
payable in all years, prior to the year in which closing occurs, shall be paid by Seller. All real
estate taxes due and payable in the years following closing shall be pro rated to the date of
closing.
7. CLOSING DOCUMENTS.
(a) At Closing, Seller shall execute, as appropriate, and deliver to Option
Holder the following items (the "Closing Documents "):
(1) A Warranty Deed conveying fee simple marketable title to the
Property, subject only to the Permitted Encumbrances.
(2) A standard form of seller's title affidavit.
(3) Any other items or documents affecting the conveyance and sale of
the Property that may be reasonably requested by Option Holder and Title, or
that may be necessary to carry out the purpose and intent of this Option
Agreement.
(b) At Closing, Option Holder shall execute, as appropriate, and deliver to
Seller the following items:
(1) The sum required to purchase the Property.
(2) Such affidavits of purchaser, Certificates of Real Estate Value, or
other documents as may be reasonably required by Title in order to record the
Seller's Closing Documents and issue the policy.
(c) Except as otherwise provided herein, all closing costs, including recording
fees, shall be allocated to and paid by Seller or Option Holder in accordance with the
manner in which such costs are customarily paid by such parties in sales of similar
property within Washington County. Option Holder shall pay the premium for the
ALTA Owner's Policy of title insurance in the form required by the Title
Commitment as approved by Option Holder in the amount of the Purchase Price. Each
party shall pay one -half of Title's closing fees.
8. EMINENT DOMAIN. If the Property, or any part thereof, is, or becomes, subject
to eminent domain or condemnation proceedings, or a notice of taking is received, on or before
the date of Closing, at its sole option, Option Holder may terminate this Option Agreement
as to the Property, or portion thereof which is the subject of the eminent domain proceeding. In
the alternative, Option Holder may elect to complete the purchase of the Property, in which
event, Seller shall immediately assign its rights to all proceeds to Option Holder and shall allow
Option Holder to be substituted in its place in all proceedings and to make all decisions in
connection with the proceeding.
9. NOTICES. All notices and other communications required or permitted to be
given or served under this Option Agreement shall be in writing and shall be deemed to
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have been duly given if delivered in person or deposited in the U.S. mail, postage prepaid, for
mailing by certified mail, return receipt requested, as follows:
City of Oak Park Heights
Attn : Eric Johnson
14169 Oak Park Blvd
Oak Park Heights, MN 55082
April Martell, Personal Representative
ESTATE OF DAVID EARL FRIEDRICH
815 Jack Pine Court
Somerset, WI 54025
Copy to: Mark J. Vierling
Eckberg, Lammers, Briggs, Wolff & Vierling, PLLP
1809 Northwestern Avenue
Stillwater, MN 55082
Either party may change its respective address by giving notice to the other party or
parties hereto as provided herein.
10. BROKER. Seller and Option Holder represent and warrant to each other that they
have not dealt with any brokers, finders, or the like in connection with this transaction, and agree
to indemnify each other and to hold each other harmless against all claims, damages, costs, or
expenses of or for any such fees or commissions resulting from their actions or agreements
regarding the execution or performance of this Option Agreement, and will pay all costs of
defending any action or lawsuit brought to recover any such fees or commissions incurred by the
other party, including reasonable attorneys' fees.
11. DEFAULT AND REMEDIES.
(a) Default by Seller. In the event of a default by Seller under this Option
Agreement, Option Holder may (i) enforce this Option Agreement by specific
performance; or (ii) terminate this Option Agreement, in which case Option Holder shall
be entitled to a refund of all amounts paid hereunder by Option Holder; and (iii) sue
for damages for out of pocket expenses incurred in the transaction.
(b) Default by Option Holder. In the event of Option Holder's default under
this Option Agreement, Seller shall have as its exclusive remedy, the right to terminate
this Option.Agreement and retain all option money paid prior to the date of such
default.
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12. MISCELLANEOUS.
(a) Attorneys' Fees. It is expressly understood and agreed that Seller and
Option Holder each shall be entirely responsible for the payment of any attorneys'
fees incurred by such party relating to the legal services furnished to such party in
connection with the transactions contemplated herein; provided, however, that in the event
that either party hereto should employ the services of an attorney in connection with a
breach of this Option Agreement or the enforcement of the terms hereof, the defaulting
or losing party shall pay, in addition to any other sums due hereunder, the prevailing
party's reasonable attorneys' fees, costs and expenses.
(b) Time of the Essence. Time is of the essence for all terms of this Option
Agreement.
(c) Binding Effect; Waiver; Modification. This written Option Agreement
constitutes the complete agreement between the parties and supersedes any prior oral or
written agreements between the parties regarding the Property. No waiver, modification,
or amendment of any condition, provision or term of this Option Agreement shall be
valid or of any effect unless made in writing and signed by the parties hereto. Any
waiver by either of the parties as to a default of the other shall not affect or impair
any right arising from any subsequent default hereunder. Nothing herein shall limit the
rights or remedies of the parties hereto under and pursuant to this Option Agreement.
(d) Severability. If any provision of this Option Agreement is held to be
invalid or unenforceable under any applicable law, that holding shall not affect the validity
or enforceability of the rest of this Option Agreement.
(e) Survivability. All of the representations, warranties, terms and covenants
of this Option Agreement shall survive the Closings and shall not merge with the Deeds
to be provided from time to time.
(f) Successors and Assigns. This Option Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns.
(g) Governing Law. This Option Agreement and any other documents related
hereto shall be interpreted and enforced in accordance with the laws of the State of
Minnesota.
(h) Counterpart Execution. This Option Agreement may be executed in
any number of original counterparts, each of which shall constitute an original, but
this Option Agreement shall not become effective until such time as all parties hereto
have executed a counterpart original and each party hereto has delivered and
received a counterpart original to and from each other party hereto.
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IN WITNESS WHEREOF, the undersigned have caused this Option Agreement to be
executed as of the day and year first above written.
ESTATE OF VID E / RL FRIEDRICH
Dated: September , 2011
AIL MARTELL, PERSONAL REPRESENTATIVE
CITY OF OAK PARK HEIGHTS
Dated: September , 2011
By David Beaudet, Mayor
Eric Johnson, City Administrator
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