ATTACHMENT D
PURCHASE OPTION AGREEMENT
Xxxxxx Xxxxxx, Ltd., A Colorado Limited Partnership, Managing Partner;
Xxxxxx Capital Corp., A Wyoming Corp., c/o Xxxxxx X. Xxxxxxxxxx (Owner)
whose address is
000 Xxxxxxx Xxxx Xx., Xxxxxxxx, XX 00000
c/o Highlands Commercial Group LLC, 000 Xxxxx Xxxxx Xxxx.,
Xxxxxxxx Xxxxxxx, XX 00000 X. Xxxxxxxx,
in consideration of Diamond Shamrock Refining and Marketing Company, whose
address is X.X. Xxx 000000, Xxx Xxxxxxx, Xxxxx 00000-0000 (Buyer), paying to
Owner within ten (10) days from receipt of this agreement signed by both parties
One Thousand and No/100-----Dollars ($1,000.00), called option money.
Owner hereby grants to Buyer for a period of sixty (60) days from the date of
this agreement, the exclusive option of purchasing from Owner for the total
purchase price of Three Hundred Fifty Thousand and No/100----Dollars
($350,000.00) and upon the provisions hereinafter set out, the following
described tract of land located in Colorado Springs, El Paso County, Colorado:
A tract of land having a minimum of 43,000 square feet exclusive of
any present or proposed rights-of-way or dedications to a public
authority and said tract of land located 530 feet west of the
northwest corner of the intersection of Powers Blvd. and Xxxxxx Park
Blvd. shall have a minimum frontage of 200 feet along, adjoining and
adjacent to Xxxxxx Park Blvd. with a depth of 220 feet therefrom and a
minimum frontage of 220 feet along, adjoining and adjacent to the
proposed right-in, right-out Xxxxxx Park Access with a depth of 200
feet therefrom.
Owner hereby grants to Buyer and its employees and representatives, at
anytime, and from time to time, the right to enter upon the land and make, at
Buyer's expense, a survey of said land containing the type of information shown
on attached Exhibit "A" and such engineering, soil, or other tests it may
desire. At the closing, the cost of the survey made by Buyer will be credited
against the payment of the purchase price. Upon Buyer giving Owner written
notice of its election to purchase the land, the following provisions shall
apply:
1. Buyer shall tender to Commonwealth Land Title Insurance Co. Attn:
whose address is 000 X. Xxxxxxx Xxx. Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
(Escrow Agent), its check in the amount of Three Thousand Five Hundred and
no/100 Dollars ($3,500.00), as xxxxxxx money, and a signed copy of this
agreement for acceptance by Escrow Agent.
2. For purposes of this agreement, the term "Buyer's Purpose" shall mean
the construction and operations of a self-service retail gasoline service
station, car wash and convenience store (including the sale of beer and wine) of
the type and size desired by Buyer with approaches, curb cuts and free standing
signs in accordance with Buyer's design.
3. Within thirty (30) days from the date Buyer's notice of election to
purchase is given, Owner shall, at its expense, furnish to Buyer the following:
a) evidence satisfactory to Buyer that water, sewer, telephone, gas and
electricity are available to the land from public utility companies
and located in public easements adjacent to the land.
b) an interim title insurance binder and sample form of title policy
covering the land, prepared and issued by a title insurance company
acceptable to Buyer with copies of all documents shown on said title
insurance binder as an exception to title; and
c) certificates from all appropriate governmental authorities reflecting
that a search has been made for, and there are no chattel mortgages,
conditional sales contracts, financing statements and other similar
instruments creating liens of any kind affecting the land or personal
property located thereon.
4. If any engineering, soil or other tests are made by Buyer and do not
show to Buyer's satisfaction the land is suitable for use for Buyer's Purpose,
notwithstanding anything contained herein to the contrary, Buyer may terminate
this agreement at any time thereafter by giving Owner written notice of
termination.
5. If required in order for Buyer to obtain a building permit or other
governmental authorizations to use or improve the land for Buyer's Purpose,
Owner shall prior to closing and at Owner's expense, subdivide and plat the land
in accordance with all applicable governmental ordinances, regulations, rules
and laws. Before Owner delivers said plat to the governmental authorities for
approval and recording, Owner shall deliver said plat to Buyer for Buyer's
approval. Buyer reserves the right to raise objections to any matters contained
in said plan.
6. Buyer shall have thirty (30) days after receipt of the survey and all
data to be provided hereunder to approve same. If, in the opinion of Buyer: (i)
the form of title insurance policy and issuing company are acceptable; (ii) the
policy does not contain any exception on account of, and the land is free and
clear of, any and all restrictions, reservations, covenants, laws, zoning or
other ordinances or regulations, easements, rights-of-way or other circumstances
of any kind which would prevent, hinder or impede ingress to or egress from the
land, the improvement or use of the land for Buyer's Purpose, or the issuance to
Buyer of a building permit and any other permits required or deemed necessary by
the applicable governmental authority in order for Buyer to improve and use the
land for Buyer's Purpose; (iii) water, sewer, telephone, gas and electricity are
available to the land from public utility companies and located in public
easements adjacent to the land; (iv) there are no exceptions which constitute an
objection to marketable title; (v) Owner will be able to deliver to Buyer at the
closing good, marketable and unencumbered title to, and immediate and exclusive
possession of the land; and (vi) all other requirements set forth in this
agreement have been satisfied to Buyer's satisfaction, then this sale shall be
closed promptly. If, in the opinion of Buyer, any requirement set forth in this
agreement has not been satisfied to Buyer's satisfaction, Buyer shall give Owner
written notice pointing out any objections or defects. Owner shall within thirty
(30) days after receipt of such notice cure such objections and defects to the
satisfaction of Buyer. If such objections and defects are so cured and no
additional objections or defects have arisen, then this sale shall be closed
promptly. If such objections and defects are not so timely cured, Buyer may, at
its option, waive same by giving written notice to Owner of such waiver within
fifteen (15) days after the expiration of said thirty (30) day period, and then
this sale shall be closed promptly. If Buyer does not notify Owner of such
waiver within said time period, this agreement shall terminate.
OPTION #245
7. At the closing of this sale, Buyer will deliver to Escrow Agent a check
in an amount equal to the difference between (i) the option money plus the
xxxxxxx money, plus the cost of a survey of the land obtained by Buyer and (ii)
the total purchase price set forth herein. Owner shall deliver to Buyer a duly
executed and acknowledged general warranty deed covering the land, in a form
acceptable to Buyer. Owner shall deliver to Buyer an Owner's title insurance
policy issued in favor of Buyer for an amount equal to the total purchase price.
If Buyer so directs, Owner agrees that the general warranty deed and Owner's
title insurance policy required under this Agreement will be delivered in the
name of and in favor of Buyer's nominee or designee. All ad valorem and personal
property taxes assessed, or to be assessed against the land for the then current
year shall be prorated between Owner and Buyer as of the closing date. All
sales, use, transfer and similar taxes relating to said transaction shall be
borne by and shall be the responsibility of Owner, and if Buyer is obligated or
required to pay any such taxes, the amount Buyer so pays or is required to pay
shall be credited toward the payment of the total purchase price hereunder The
Escrow Agent's fees, and fees or commissions due any real estate agent, or
agents, shall be paid by Owner. Each party shall be responsible for its own
closing costs over and above those enumerated above.
8. At the closing of this transaction Owner will deliver to Buyer. in a
form acceptable to Buyer, dated as of the date of the closing, a statement
declaring, under penalty of perjury, Owner is not a "Foreign Person" as defined
in Section 1445(f)(3) of the Internal Revenue Code, and that Section 1445(a) of
the Internal Revenue Code is not applicable to this transaction. If such
statement is not delivered at closing, Buyer shall have the right to withhold
from the total price payable to Owner under this agreement, such amount as Buyer
deems necessary to satisfy the obligation imposed upon Buyer by Section 1445(a)
of the Internal Revenue Code, not to exceed ten percent (10%) of the total
purchase price.
9. Owner represents and warrants to Buyer as of the date of this sale the
following: 1) to the best of Owner's knowledge, the land is free and clear of
all restrictions, covenants, reservations, ordinances or other circumstances
which would prevent, hinder or impede (a) the improvement or use of the land,
(b) ingress to or egress from the land, or (c) the issuance of permits for
construction of the improvements Buyer deems necessary for Buyer's Purpose; 2)
the land has the frontage along, adjacent to and adjoining the public highways
or streets represented above; and 3) water, sewer, gas and electricity are
available to the land from public companies and located in public easements
adjacent to the land. Owner's representations and warranties shall survive the
closing of this sale and the execution and delivery of the deed contemplated
herein.
10. Upon the termination of this agreement, Escrow Agent will return any
xxxxxxx money to Buyer and, any deed delivered by Owner to Escrow Agent; to
Owner, and neither Owner nor Buyer shall be obligated to perform further
hereunder. If, after approval of said title, deed, title policy, title company,
and other data to be provided hereunder, and the satisfaction of all other
requirements of this agreement. Buyer defaults in its obligation to purchase
said land, Escrow Agent shall deliver to Owner the xxxxxxx money and any deed
delivered by Owner to Escrow Agent, and Owner shall retain the xxxxxxx money and
option money as liquidated damages and its sole remedy. If Buyer terminates this
agreement because Owner fails to fulfill Owner's obligations hereunder, Escrow
Agent will return to Buyer all xxxxxxx money, and Owner shall return to Buyer,
all option money paid by Buyer to Owner.
11. Notices or data required to be delivered to Owner by Buyer shall be
deemed delivered when delivered to Owner in person, or deposited in the U.S.
Mail, duly stamped and addressed to Owner at its address set forth above. All
documents and data to be delivered to Buyer shall be deemed given when delivered
to Buyer at its address set forth above.
12. If Escrow Agent shall decline to accept this escrow, this agreement
nevertheless shall remain binding, and Buyer shall not be required to make any
xxxxxxx money deposit. Waiver of any representation or warranty contained herein
to be binding on Buyer must be in writing, and signed by an authorized
representative of Buyer. This agreement constitutes the entire agreement between
the parties and shall be binding upon and inure to the benefit of their heirs,
devisees, legal representatives, successors and assigns and may be amended or
altered only by written instrument duly signed by the parties. Buyer may assign
this agreement to a third party without the consent of Owner.
13. Special Provisions:
See attached addendum.
If not signed by Owner and returned to Buyer within fifteen (15) days from
the date hereof, Buyer may consider this agreement null and void.
DATED this day of 19 TAX ID or SSN: 00-0000000
-------- ------- --- ------------------
DIAMOND SHAMROCK REFINING Xxxxxx Xxxxxx, Ltd. A CO ltd. partnership
AND MARKETING COMPANY Xxxxxx Capital Corp., a WY corp.
------------------------------------------
(Company Name)
By: /S/ N.T. AUSTIN By: SEE ATTACHED COUNTERPROPOSAL
-------------------------------- -----------------------------------------
Manager, Real Estate N.T. Austin Title Managing Partner (Owner)
(Buyer)
By: /S/ XXXXXX XXXXXXXXXX
-------------------------------------
Xxxxxx Xxxxxxxxxx (Owner)
The foregoing escrow is accepted by, and Escrow Agent acknowledges receipt of
the xxxxxxx money deposit described above and agrees to disperse said xxxxxxx
money and any other funds and documents received by it hereunder in accordance
with the provisions of this agreement.
---------------------------------------
(Title Company Name)
By: By:
------------------------------ -----------------------------------
Title: Title:
(Escrow Agent)
ADDENDUM TO PURCHASE OPTION AGREEMENT #245
SPECIAL PROVISIONS
1) Actual size and dimensions of tract shall be determined by survey; however,
the tract shall not be less than 43,000 SF.
2) No less than the proposed right-in, right-out access along tracts easterly
boundary and the full motion access along tract's westerly boundary shall
be acceptable to Buyer.
3) Buyer shall install the proposed right-in, right-out access road at its
expense with the second user reimbursing Buyer 1/2 the cost.
4) Owner shall install the proposed full motion access and subsequent service
road and remove trees along Sand Creek at its sole expense prior to
closing.
5) All other required offsite public improvements shall be installed by Owner
at its sole expense prior to closing.
6) Owner shall be obligated to receive all necessary approvals for the
development of the PBC-2 tract.
7) Owner shall furnish Buyer a "finished pad" ready to develop with all
utilities, including 3-phase electrical, to property line and pad
elevations to Buyers satisfaction prior to closing.
8) Buyer shall have the perpetual use of the top 33.3% (50 SF) of one of the
two authorized PBC-2 District signs to be installed along Powers Blvd.
R.O.W. to Buyers satisfaction. Said sign shall be 30 feet high, 150 SF
total signage each side per city code. Buyer shall participate in the cost
of said sign after entering into a sign agreement and agreeing to design of
sign with owner prior to closing.
9) The balance of the 22+ acre PBC-2 tract shall be restricted against
gasoline sales, c-stores sales and car wash.
10) Closing shall not occur until Buyer has obtained all required permits
necessary to construct the facility for Buyer's Purpose on the property.
a:\Add245.doc32 07/05/96
REALTOR
=================
HIGHLAND
COMMERCIAL GROUP
=================
The printed portions of this
form, except (italicized)
(differentiated) additions,
have been approved by the
Colorado Real Estate
Commission (CBS 3-9-95)
THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL
AND TAX OR OTHER COUNSEL BEFORE SIGNING.
COUNTERPROPOSAL
August 6, 1996
----------------
RE: Proposed contract to buy and sell the following described real estate
in the County of El Paso, Colorado, to wit:
Approximately 49,200 square feet, to be platted, approximately 535, west of the
northwest intersection of Xxxxxx Park Blvd. and Powers Blvd as shown on attached
drawing.
known as No. na
--------------------------------------------------------------------------------
Street Address City
dated undated 19
------------------------- --------------
between Xxxxxx Xxxxxx Ltd. Colorado Limited Partnership, Seller
--------------------------------------------------------------------------------
and Diamond Shamrock Refining and Marketing Company, Buyer.
--------------------------------------------------------------------------------
The undersigned accepts the proposed contract, subject to the following
amendments:
See Attached Addendum A, attached hereto, and by this reference
incorporated herein.
1. Buyer and Seller hereby acknowledge that the attached Addendum A was
prepared by Xxxxx X. Xxxxxxxx, Xx., of Highland Commercial Group, LLC, and
has not been approved by the Colorado Real Estate Commission. Both Buyer
and Seller should consult their respective legal counsels with respect to
this Agreement.
2. Seller will deliver a special warranty deed.
3. If Buyer has not closed within 180 days after the later of final plat
approval and final development plan approval and recordation, this contract
shall terminate.
All other terms and conditions shall remain the same. This counterproposal shall
expire unless accepted in writing, by Buyer and Seller, as evidenced by their
signatures below, and the offering party to this document receives notice of
such acceptance on or before August 21, 1996. If accepted, the proposed
contract, as amended hereby, shall become a contract between Seller and Buyer.
/S/ XXXXXX X. XXXXXXXXXX /S/ XXXXXX X. XXXXXXXXXX
----------------------------------- ---------------------------------------
Seller Xxxxxx Xxxxxx, Ltd. Seller
Date of Seller's Signature 8-6-1996 Date of Seller's Signature 8-28-1996
--------- ----------
Seller's Address: 000 Xxxxxxx Xxxx Xx., Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
/S/ N. T. AUSTIN
------------------------------------ ---------------------------------------
Buyer Diamond Shamrock Refining Buyer
and Marketing Company
Date of Buyer's Signature Aug 21, 1996 Date of Buyer's Signature 19
-------------- ----------
Buyer's Address: XX Xxx 000000, Xxx Xxxxxxx, XX 00000-0000
--------------------------------------------------------------------------------
N.B. When this counterproposal form is used, the proposed contract is not to be
signed by the party initiating this counterproposal. This counterproposal must
be securely attached to the proposed contract.
Counterproposal
ISG-XxXxxxxxxx Publishing (000) 000-0000 Prepared at Highland Commercial Group,
Colorado Springs, CO (000) 000-0000
ADDENDUM A
Addendum to the Counterproposal to the Purchase Option Agreement, "AGREEMENT",
between Diamond Shamrock Refining and Marketing Company, as "Buyer" and Xxxxxx
Powers Ltd, a Colorado Limited Partnership as "Seller".
ADDITIONAL PROVISIONS
a. The tract of land shall be 205', west to east, from the centerline of the
full access driveway to the centerline of the right-in/right-out driveway, by
240 feet, south to north, from the north right of way line of Xxxxxx Park Blvd
to the centerline of the west to east access easement. The total square footage
conveyed to Diamond Shamrock shall be 49,200 sf.
b. The Seller shall be responsible for installation of the access roads and
utilities to the site.
c. The Purchase price shall be $388,850.00
d. Buyer shall supply Seller with its develofpment plan for the site so that
Seller can prepare a site development plan and plat for the City of Colorado
Springs. This Agreement is specifically contingent upon Seller getting the
necessary approvals from the City of Colorado Springs for the development plan
and plat, on terms and conditions that are acceptable to Seller at its sole
discretion.
e. Buyer and Seller to agree upon the site rough grading plan.
f. Signage agreement in the Agreement is agreed upon, subject to signage
ordinances continuing to allow two 150 sf project pole signs.
g. Previous contract conditions notwithstanding, Buyer shall have sixty (60)
days from the date of mutual execution of the "Agreement" to determine at its
sole discretion that the property is suitable for his intended use as provided
hereinbelow. Seller represents and warrants the Property is vacant, is not now,
and to Seller's knowledge has never been used in violation of any of the laws
set out in this paragraph.Purchaser acknowledges and agrees that Seller has not
made, does not make and specifically negates and disclaims any representations,
warranties, promises, covenants, agreements or guaranties of any kind or
character whatsoever, whether express or implied, oral or written, past, present
or future, of, as to, concerning or with respect to (i) the value, nature,
quality or condition of the Property, including, without limitation, the water,
soil and geology; (ii) the income to be derived from the Property; (iii) the
suitability of the Property for any and all activities and uses which Purchaser
may conduct thereon; (iv) the compliance of or by the Property or its operation
with any laws, rules, ordinances or regulations of any applicable governmental
authority or body; (v) the habitability, merchantability, marketability,
profitability or fitness for a particular purpose of the Property, or (vi) any
other matter with respect to the Property; and Seller specifically disclaims any
representations regarding compliance with any environmental protection,
pollution or land use laws, rules, regulations, orders or requirements,
including solid waste, as defined by the U.S. Environmental Protection Agency
regulations at 40 C.F.R., Part 261, or the disposal or existence, in or on the
Property, of asbestos or any hazardous substance, as defined by the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, and regulations promulgated thereunder. Except as set out herein,
Purchaser further acknowledges and agrees that having been given the opportunity
to inspect the Property, Purchaser is relying solely on its own investigation of
the Property and not on any information provided or to be provided by Seller or
Broker other than as is stated in this Contract. Purchaser further acknowledges
and agrees that any information provided or to be provided by or on behalf of
Seller with respect to the Property was obtained from a variety of sources and
that Seller has not made any independent investigation or verification of such
information and makes no representations as to the accuracy of such information
and makes no representations as to the accuracy or completeness of such
information. Seller is not liable or bound in any manner by any oral or written
statements, representations or information pertaining to the Property, or the
operation thereof, furnished by any real estate broker, agent, employee, servant
or other person. Purchaser further acknowledges and agrees that to the maximum
extent permitted by law, the sale of the Property as provided for herein is made
on an "AS IS" condition and basis with all faults. Purchaser and anyone claiming
by, through or under Purchaser hereby fully and irrevocably releases Seller, his
employees, representatives and agents, from any and all claims that may now or
hereafter acquire against Seller, his employees, representatives and agents for
any cost, loss, liability, damage, expense, demand, action or cause of action
arising from or related to any defects, errors, omissions or other conditions,
including environmental matters, affecting the Property, or any portion thereof
on and after the closing. It is understood and agreed that the purchase price
has been adjusted by prior negotiation to reflect that all of the Property is
sold by Seller and purchased by Purchaser subject to the foregoing. In the event
that Purchaser does not notify Seller in writing, during the above 60 day period
that the property is not acceptable, "Notification," then this contract shall be
deemed to be in full force and effect, subject to the other provisions of the
Agreement.
i. Purchaser acknowledges timely disclosure by Xxxxx X. Xxxxxxxx Xx., and
Highland Commercial Group that they are acting as Listing Broker in this
transaction, and as such have a fiduciary responsibility to the Seller.
thrds2
FIRST AMENDMENT OF PURCHASE OPTION:AGREEMENT #245
BY AND BETWEEN XXXXXX XXXXXX, LTD. AND
DIAMOND SHAMROCK REFINING AND MARKETING COMPANY
Xxxxxx Powers, Ltd. ("Owner") and Diamond Shamrock Refining and Marketing
Company ("Buyer") having executed that certain Purchase Option Agreement Number
245 dated August 28, 1996 for property located west of the northwest corner of
Powers and Xxxxxx Park Blvd., do hereby amend said Agreement as follows:
Buyer's option period shall be extended through November 13, 1996
Except as specifically amended herein, all other provisions of said Purchase
Option Agreement shall remain in full force and effect.
DATED this the 3rd day of October, 1996
DIAMOND SHAMROCK REFINING XXXXXX POWERS, LTD.
AND MARKETING COMPANY
XXXXXX CAPITAL CORP.
MANAGING PARTNER
By: /S/ N. T. Austin By: /S/ XXXXXX XXXXXXXXXX
----------------------------------- ----------------------------------
Real Estate Manager Xxxxxx Xxxxxxxxxx
A:\3rd245.doc35
da 10/03/96
X. X. Xxxxx
General Manager
Real Estate/Acquisitions
Diamond Shamrock
November 13, 1996
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Xxxxxx Powers, Ltd.
Attn: Xxxxxx Xxxxxxxxxx
000 Xxxxxxx Xxxx Xx.
Xxxxxxxx, Xxxxxxx 00000
RE: Purchase Option Agreement No. 245 dated August 28, 1996, by Xxxxxx Powers,
Ltd. xx.xx. and between Diamond Shamrock Refining and Marketing Company
covering property located west of the northwest corner of Powers and Xxxxxx
Park Blvd., Colorado Springs, El Paso County, Colorado
Dear Sirs:
In accordance with the above referenced agreement covering the subject property,
this letter constitutes notice from Diamond Shamrock of election to purchase the
subject property.
We are immediately tendering our xxxxxxx money funds in the amount of $3,500 as
well as a copy of the Purchase Agreement to Commonwealth Land Title Insurance
Company for acceptance into
escrow.
If you have any questions, do not hesitate to contact us.
Sincerely,
/S/ X. X. XXXXX
------------------------------
X. X. Xxxxx
MLC/da
cc: X. Xxxxx X. X. Xxxxxxxx
X. Xxxxxx X. Xxxxxx
X. XxXxxxxxx X. Xxxx
X. Xxxxxx X. Xxxxxxxx
X. Xxxxx
a:ern245.doc
Diamond Shamrock XX.Xxx 000000.Xxx Xxxxxxx, Xxxxx 00000-0000.
Phone: 000 000-0000
