HomeMy WebLinkAbout03/23/07 - re: proposed sewer extention - baldur park road Q 0
CITY of ORONO
k
ti Municipal Offices
Street Address: Mailing Address:
�',ESKQ 2750 Kelley Parkway P.O. Box 66
Orono, MN 55356 Crystal Bay, MN 55323-0066
March 23, 2007
Tom Kellogg
Bonestroo & Associates
2335 West Highway 36
St. Paul, MN 55113
Matt Brokl
Campbell Knutson, P.A.
317 Eagandale Office Center
1380 Corporate Center Curve
Eagan, MN 55121
Re: Proposed Sewer Extension - Baldur Park Road
Dear Mr. Kellogg & Mr. Brokl:
The City is in receipt of a request for a permit to construct an extension of the Baldur
Park municipal sewer system to serve vacant and developed properties at the
northwesterly end of the Baldur Park Point. The request is from Steve Coddon via Zac
Essig of Schoell & Madson, Inc. Coddon has provided the City with a copy of a
purchase agreement he has for Lots 22-29 inclusive, Lots 32 and 33, and part of Lot 21,
Baldur Park. Coddon owns Lot 31 subject to an easement for septic system serving Lot
30. Lot 30, also proposed to be served, is owned by Fred Puzak.
It is my expectation that pursuant to the purchase agreement and a letter of intent from
Coddon received by this office on March 5, 2007, Coddon will within the next few
months apply for variances and/or subdivision approvals to allow residential development
of the above properties. This raises a number of questions about the buildability of
various individual lots or lot groupings based on required setbacks from lake and
wetlands, hardcover limitations, the potential need for a re-plat of the properties, access
requirements, burial of overhead utilities, etc.
More immediate questions are raised by the request for a permit to construct a sewer
system. How many units will be served? Is this merely a private connection, or is it to
be a City-owned public extension of the public system to serve multiple properties?
Would the City even consider allowing private ownership of a sewer system that serves
multiple properties? Per Municipal Code Section 14-80, it is my conclusion that each
separate occupied property must have a separate connection, and that the sewer system
Telephone(9521 249-4600 • Fax(952)249-4616
www.ci.orono.mn.us
Baldur Park Sewer Extension
March 23,2007
Page 2
proposed by Coddon must then be a public system, as the LR-1C zone does not allow
duplex or multi-family dwellings. Should the system be within a dedicated extension of
the public street or within easements over private property? Why is the system being
proposed now, prior to a zoning application to determine the buildability and ultimate
layout of the properties, roadways, utility easements, etc.?
It is my opinion that this request is premature and should be reviewed only in the context
of a comprehensive review of potential development of the properties, which will only be
accomplished by an application by Mr. Coddon for development of the properties.
With regard to the design, it appears that as many as seven (7) sanitary services are
spread out along the length of the proposed extension, to potentially serve properties that
may ultimately prove unbuildable. A 1982 preliminary plat approval granted by the City
for this property resulted in only 3 building sites (2 plus the Puzak residence) after many
iterations. That subdivision was never completed. It is my opinion that approval of 7
units on the property is extremely unlikely, given that City ordinances have become even
more restrictive in the past 25 years.
Matt - please review the applicant's purchase agreement (attached) and let me know
whether it is valid. It has language regarding a 120-day `condition period' that is
undefined, and if it began on the date the agreement was signed, the agreement has
expired. I would also like your advise on how to respond to Coddon's sewer permit
request, considering all the issues noted above.
Tom - please provide a verbal cursory review of the plans and advise me if there are any
glaring issues that I should be aware of. Since Coddon's sewer connection permit
application does not obligate him to pay consultant costs, I am hesitant to incur more than
perhaps an hour of your time at this point in assisting to determine an appropriate
response to Coddon.
Sincerely,
//XII'
Michael P. Gaffron
Planning Director
cc: Ron Moorse
Encl.
Steve Coddon
PO Box 175
Mound,MN 55364-0175
2 4442 9-0 o7
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CERTIFICATE OF SURVEY
FOR: MR. STEVE CODDON
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LEGAL DESCRIPTION: -
Lots 31, 32 c&c 33, Block 1, BALDUR PARK \ 1-7) /
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and All of vacated Nelson Lane 4 �� /,'
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PARCEL AREA: 33,232.9 Sq. Ft. N
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Rev. 2-28-07 separate carts C:\EP\DRAW\i 1403 DWG
I hereby certify that this survey, plan or report was prepared by me or under Fele No.
DEMARS—GABRIEL my direct supervision and that l am a duly Registered Land Surveyor under the 13289-1
LAND SURVEYORS, INC. Laws of the State of Minnesota.
2S�h n wJ Book-Page
3030 Harbor Lone No. As surveyed by me thisn/ day of, i1elbe y , 2007. N/A
PlymoutPhone:(h, MN 55447 ��/'�"C_• _
�'hone:(763) 559-0908 Scale
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David E. Crook Minn. Reg. No. 22414 1 =30
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PURCHASE AGREEMENT
This Purchase Agreement is made as of this :I/ day of November 2006, by Steven D. Coddon
and/or assigns (hereinafter referred to as "Buyers"), and William J. Franklin and Pauline A.
Franklin, a married couple (hereinafter referred to as "Sellers").
ARTICLE I
PURCHASE AND SALE
Upon the terms and conditions hereinafter stated, Sellers agrees to sell and convey to Buyers, and
Buyers agree to purchase, all of Sellers' right, title and interest, in and those certain parcels of real
estate legally described on Exhibit"A" attached hereto and incorporated herein, together with all
rights pertaining to such real estate, including any right, title and interest of Sellers in and to any
and all adjacent streets, roads, alleys and rights-of-way(hereinafter called the "Properties").
The Properties shall include:
a. All buildings, structures, or improvements located on the Land, and all heating,
ventilating, incinerating, lighting, plumbing, electrical, air-conditioning fixtures and equipment, hot
water heaters, furnaces, heating controls, motors, and boiler pressure systems and equipment
located in or on the Properties.
b. All right, title and interest of the Sellers or appurtenant to the Properties in and to
all easements of record and all easements not of record benefiting the Properties (or the owner or
users thereof) over other property and all governmental permits, licenses and rights, whether or not
of record, appurtenant to the Properties.
c. All rights of ownership in and to all final and preliminary plans and specifications,
relating to the construction of the improvements on the Properties and all unexpired warranties,
guarantees, and sureties, if any, received from third parties.
d. All assignable licenses, permits, certificates of occupancy, and franchises issued by
any federal, state, county or municipal authority relating to the use, maintenance or operation of the
Properties, running to, or in favor of, the Sellers or the Properties.
e. All of the Sellers' right, title and interest in the Lease subject to Buyers' assumption
of all obligations of Sellers hereunder accruing from and after the date of assignment.
Except as set forth herein, Buyers are buying the Properties based upon their own investigation and
inquiry and are not relying on any representations of Sellers or other person and in agreeing to
accept the Properties "As-Is" subject to the conditions of examination herein set forth.
ARTICLE 11
PRICE AND PAYMENT
2.1 Price. The total purchase price for the above-described Properties shall be Two
Million and 00/100 ($2,000,000.00) Dollars.
2.2 Payment. The purchase price shall be paid as follows:
a. Earnest Money. The sum of Ten Thousand and 00/100 ($10,000.00) Dollars shall
be paid as and for earnest money at such time as Sellers execute this Purchase Agreement and shall
be non-refundable even in the event Buyers cancel this agreement or any portion thereof, or are
unable to perform, Sellers shall be entitled to retain the earnest money paid.
b. Balance. The balance of the purchase price, One Million Nine Hundred Ninety
Thousand Dollars, ($1,990,000.00) shall be paid by Buyers to Sellers in cash or certified funds on
or before January 30, 2008, unless said date is otherwise extended by agreement of all parties, and
contingent upon Buyers securing financing.
ARTICLE III
CLOSING
3.1 Place of Closing. The place of Closing shall be at a place mutually agreed upon
between the parties within the Twin Cities Metropolitan area or 9304 Lyndale Avenue South,
Bloomington, MN if there is no other agreed upon location.
3.2 Closing Obligations. At Closing, Buyers shall pay the purchase price as herein
before provided, and Sellers shall deliver to Buyers the following:
a. A Warranty Deed to each parcel of property described in Exhibit"A", duly
executed and acknowledged and in recordable form with deed stamps attached, conveying the
Properties subject only to the following exceptions (hereinafter called "Permitted
Exceptions"):
(i) Building and zoning laws, ordinances, state and federal regulations;
(ii) Utility easements serving only the Properties;
(iii) Such other exceptions or conditions as are approved by Buyers in
accordance with this Agreement; and
(iv) The Leases (as hereinafter defined),if any, and the rights of the
tenants thereunder, as tenants only, together with any additional leases entered into after the
date hereof as permitted by this Purchase Agreement (Sellers agree, however, that this
exception will not be set out on the deed).
b. A Certificate of Real Estate Value in the form required by Minnesota Statutes,
Section 272.115;
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c. The Owner's Duplicate Certificate(s) of Title to the Properties or any part thereof
that is "Torrens," unless the same is on file with the applicable Registrar of Titles;
d. Abstract(s) of Title covering the entire Properties or any part thereof that is
"Abstract," and certified to a current date and to include property searches covering bankruptcies
and state and federal judgment and liens, if in Buyers'possession or control;
e. A reaffirmation of the truth and accuracy of Sellers' representations and warranties
set forth in ARTICLE VI hereof,
f. An Affidavit executed by a duly authorized officer of Sellers stating: (i) Sellers'
United States taxpayer identification number, and (ii) that Sellers is not a foreign person within the
meaning of Section 1445 of the Internal Revenue Code;
g. Well Disclosure Statement if required by Minnesota Statutes Sec. 1031.235. To the
best of Sellers' knowledge there are no wells, septic tanks or underground storage tanks or any
other tanks located on the Properties;
h. Sellers will, on the Closing Date, do, make, execute and deliver all such additional
and further acts, things, deeds, instruments and documents as counsel for Buyers may reasonably
request to vest completely in and assure to Buyers full rights in and to the Properties.
3.5 Buyers' Closing Costs. On the Closing Date Buyers shall pay the following:
a. The real estate taxes and installments of special assessments that are due and
payable;
b. All recording fees upon said Warranty Deeds;
c. Any and all costs in connection with said closing; and
d. The balance of the Purchase Price due at closing as above set forth.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
4.1 Condition Date for Closin . Buyers' ui; ations hereunder for the purchase of
subject properties are subject to the fulfillment of the cuuditioi described during a condition
period described hereunder. Condition period shall bcgiu and( itinue for one hundred twenty
(120) days after the date that two fully executed copies of ds ,,reement are delivered by certified
mail to the appropriate lending institution.
a. Marketability of Title.Condition ui uu ,die Properties shall have been
established in accordance with this Agreement and Buyers 1i.:3 determined that Buyers is satisfied,
in its sole discretion, with the marketability of title.
3
b. Inspection of Properties. On or before the Condition Date, Buyers shall have
determined, in its sole discretion for any reason or no reason at all, from inspections of the
Properties, from the Survey, any soil tests, hazardous substance tests, inquiries, engineering
studies or other examinations or inspections of the Properties which Buyers elects to perform
or to have performed, that the Properties are acceptable to Buyers. By signing this
Agreement, Sellers authorizes Buyers to enter on the Properties during reasonable business
hours and to make such inspections, tests and inquiries, as Buyers deems necessary. Sellers
agrees to cooperate fully with Buyers in its performance of the inspections, tests and inquiries
referred to herein as well as to deliver to Buyers promptly upon execution of this agreement
by Sellers copies of all surveys, warranties, guarantees, licenses, Certificates, permits,
authorizations, reports, studies, site inspections, soil and other tests, plans or specifications
and any other agreements or information which relate in any way to the Properties. Buyers
hereby agrees to defend and indemnify Sellers against, and to hold Sellers harmless from, all
costs, expenses, or damages (including reasonable attorney's fees and court costs) arising out
of any personal injury, death or property damage, or monetary claims arising out of any such
entry, investigation, examination, survey or tests by or on behalf of Buyers. This indemnity,
as applicable to such acts by or on behalf of Buyers during the term of this Agreement, shall
survive termination or expiration of this Agreement, notwithstanding anything apparently to
the contrary herein.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS
Sellers warrants, represents and covenants as follows, each and every one of which shall be true on
the Closing Date and shall survive the Closing Date unless specifically waived in writing by
Buyers:
5.1 Absence of Claims. As of the date hereof, Sellers has no knowledge of any action,
litigation, suit, investigation, claim, code violation or proceeding relating to the Properties,
including but not limited to, condemnation, environmental, zoning or other proceeding. Except as
disclosed on Exhibit B attached hereto, at closing, no contracts or agreements, including but not
limited to management agreements, employment contracts, leases, or other contracts or agreements
relating to the Properties, shall be in effect with respect to the Properties by which Buyers shall be
bound, except the Leases and those, if any,which Buyers may have specifically elected to accept
the assignment of from Sellers at closing. Sellers shall give Buyers prompt written notice of any
action, suit, litigation, claim, violation investigation, or proceeding is commenced prior to the
Closing Date. Upon receipt of such notice, Buyers shall have the option to terminate this
Agreement, if Buyers deems such action to be material.
5.2 Status of Title. Sellers are the owner in fee simple title of the Proper(res, free and
clear of any and all liens, deeds of trust, land trusts, mot(gal: pledges, security interests, leases,
charges, encumbrances, easements, railroad rigli' ownership, investment interest of
third parties or restrictions of any kind.
5.3 %\uthority. Sellers have all necessary lawful ;authority to enter into this Agreement
and to sell and convey the Properties to Buyers as provided in this Agreement and to carry out
4
Sellers' obligations hereunder and that the joinder of no person or entity other than Sellers will be
necessary to convey the Properties in the condition provided in this Agreement to Buyers on
Closing.
5.4 Compliance with Agreements. The execution and delivery of this Agreement, the
consummation of the transaction herein contemplated and the compliance with the terms of this
Agreement will not conflict with, with or without notice or the passage of time, or both, result in a
breach of any of the terms or provisions of or constitute a default under any indenture, mortgage,
loan agreement or instrument to which Sellers is a party or by which Sellers or Sellers'property is
bound, any applicable governmental regulation or any judgment, order or decree of any court
having jurisdiction over Sellers or Sellers' properties which relate to the Properties.
5.5 Notices Regarding Improvements. As of the date hereof, Sellers have received no
notice, order or other communication from any governmental body having jurisdiction over the
Properties requiring any improvement to or alteration of the Properties. Sellers shall give Buyers
prompt written notice if any notice order or communication is received prior to the Closing Date.
Upon receipt of such information, Buyers shall have the option to terminate this Agreement, if
Buyers deems such notice, order or communication to be material. Notwithstanding any provision
herein to the contrary, upon such termination all Earnest Money shall be refunded to Buyers.
5.6 Future Agreements. Until the Closing or earlier termination of this Agreement,
without Buyers' written consent, Sellers agree not to enter into additional leases or amend any of
the Leases (unless such lease or amendment is terminable by Landlord upon sixty(60) days notice),
or material agreements or contracts relating to the Properties. Sellers agree to give Buyers written
notice of any potential new lease or amendment prior to entering into such lease or amendment. In
addition,prior to entering into any new lease or any amendment to any existing lease, Sellers agree
to disclose in writing to any proposed tenant, the existence of this Contract and Buyers' rights
hereunder.
5.7 Assessments. Sellers warrant that they have no 1.1 'wledge of any planned
improvements which may result in special assessments being levit <_1 against the Properties in the
future and that they will inform Buyers of any planned improvements of which Sellers may
hereafter become aware.
5.8 Utilities. Sellers have not received any written not ice from the applicable utility
supplier of any pending or threatened curtailment or reduction of al,y utility required for current use
of the Properties.
5.9 Liens and Claims. That(i) there are no outstanding mechanics' liens or rights to
claim a mechanics' lien in favor of an ;contractor, materialman, or I 'borer or any other person or
entity in connection with the cone'ruction of any portion of the Prop .2rties; (ii) there has not been
any work performed or materials applied to the Properties or contra cts entered into for work to be
performed or materials to be supplied to the Properties prior to the d.ate hereof which has not been
fully paid for,which could give rise to the filing of such liens against the Properties, except for
matters in the ordinary course of bush ,ss, all over which Sellers are, 'roviding Buyers with title
insurance; (iii) Sellers shall be respor':,ible for any and all claims for i chanic's liens that have
arisen or may subsequently arise due to contracts entered into for and or an work performed on, or
5
materials supplied to, the Properties prior to the Closing Date, and Sellers shall and do hereby
agree to defend, indemnify, and forever hold Buyers harmless from and against any and all such
mechanic's lien claims and any other contracts or commitments relating to the Properties subject to
the pro-ration provision hereof
Except as may be disclosed in writing by Sellers to Buyers pursuant to Sections 6.1, 6.6 and 6.7, all
representations and covenants of Sellers contained in this Agreement shall be true on the Closing
Date and shall survive the Closing Date and the delivery of the warranty deeds provided for herein
as well as any investigation made by or on behalf of Buyers for a period of one year after the
Closing Date.
ARTICLE VI
REMEDIES
6.1 Buyers Default. If Buyers shall default in the performance of any of its obligations
hereunder, Sellers' sole remedy shall be to cancel this Purchase Agreement by serving notice in
writing upon Buyers in the manner provided herein, Sellers shall be entitled to retain all earnest
moneys paid as liquidated damages.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. All notices and other documents of similar legal import from either of the
parties hereto to the other shall be in writing and considered to have been duly given or served if
sent by first class certified mail, return address as set forth below, or to such other address as such
party may hereafter designate by written notice to the other party.
If to Sellers: William and Pauline Franklin
1730 New Brighton Boulevard
Minneapolis, MN 55413
If to Buyers: Steven and Joan Coddon
PO Box 175
Mound, MN 55364
7.2 Broker's Commission. In the event of a successful transfer of legal title of the
properties to the Buyers, Sellers shall not be required to pay a broker fee or commission.
7.3 Successors and Assigns. The terms, conditions and covenants of this Purchase
Agreement shall extend to, be binding upon and inure to the benefit of the successors and assigns
of the parties hereto.
7.4 Agency Disclosure. No Agent.
7.5 Risk of Loss. Risk of loss to the Properties prior to the time of closing shall remain
in Sellers. In the event that,prior to the time of closing, proceedings for the condemnation of the
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Properties, or any interest therein, or any portion thereof are commenced by governmental authority
having jurisdiction to do so, or the Properties, or any interest therein, or any portion thereof, is
damaged or destroyed, Buyers may, at its option, terminate this Agreement by written notice to
Sellers. In the event of any such condemnation, destruction or any damage to the Properties, or any
interest therein, or any portion thereof, Sellers agrees to fully inform Buyers regarding any
insurance providing coverage with respect thereto and the probable amount of any condemnation
award or insurance proceeds recoverable on account thereof, and Sellers shall, if this Agreement is
not terminated on account thereof, assign to Buyers its rights to any such condemnation award or
insurance proceeds.
7.8 Information. Sellers agrees that it will, on or before the Closing Date, deliver to
Buyers all of its files relative to the maintenance and operation of the Properties. Sellers'
obligations under this paragraph shall continue beyond the Closing Date and Sellers shall at any
time and from time to time furnish Buyers with any information within the control of Sellers
reasonably requested by Buyers and pertaining to the ownership, operation and maintenance of the
Properties.
7.9 Law. All parties hereto agree that time is of the essence in this transaction and
shall be governed by and interpreted in accordance with the laws of the state of Minnesota.
7.10 Assignment. Buyers shall have the right, without Sellers' consent, to assign its
rights under this agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed as of the
day and year first above written.
SELLERSBUYERS
)/(1/2(140/44, a%f A2E:%- A L,. , _ I
a
Its: Its:
Date: // / //J d Date: //i// •
7
EXHIBIT A
Lots 22 to 29 includisve; Lots 32 and 33 and Lot 21, all in Block 1, Baldur Park, as more
specifically set forth on Certificates of Title 639660 and 666870 attached hereto. This Purchase
Agreement specifically does not include Lot 31, Block 1, Baldur Park.
8