Loading...
R-04-10-14-14D2 - 10/14/2004 RESOLUTION NO. R-04-10-14-14D2 WHEREAS, the City desires to purchase two tracts of land known as Tract (1) , Block 2, south one-half of Lots 8, 9 and 10, Original Plat of the City of Round Rock, Williamson County, Texas, also known as 211 S. Brown Street, and Tract (2) , Block 2, north one-half of Lots 8, 9, and 10, Original Plat of the City of Round Rock, Williamson County, Texas, also known as 209 S. Brown Street, and WHEREAS, Frank Correa and wife, Maria Pena Correa, the owners of the property, have agreed to sell said property to the City, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Real Estate Contract with Frank Correa and wife, Maria Pena Correa, for the purchase of the above described property, a copy of said Real Estate Contract being attached hereto as Exhibit "A" and incorporated herein for all purposes . The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 14th day of October, 20 4 . NYL LL, M yor A ST:. Ci y Round Rock, Texas CHRISTINE R. MARTINEZ, City Secre airy @PMesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/R41014D2.WPD/sc REAL ESTATE CONTRACT State of Texas County of Williamson THIS CONTRACT OF SALE ("Contract") is made by and between Frank Correa and wife, Maria Pena Correa, (referred to in this Contract as "Seller") and the CITY OF ROUND ROCK, a Texas Home Rule City of 221 E. Main St. Round Rock, Williamson County, Texas (referred to in this Contract as "Purchaser"), upon the terms and conditions set forth in this Contract. ARTICLE I PURCHASE AND SALE By this Contract, Seller sells and agrees to convey, and Purchaser purchases and agrees to pay for two tracts of land situated in Williamson County,Texas,being more particularly described as follows: Tract(1) Block 2,South one-half of Lots 8,9,and 10,Original Plat of the City of Round Rock, Williamson County,Texas,also known as 211 S.Brown St.,Round Rock,Williamson County,Texas;and Tract(2) Block 2,North one-half of Lots 8,9,and 10,Original Plat of the City of Round Rock, Williamson County,Texas,also known as 209 S.Brown St.,Round Rock,Williamson County,Texas together with all and singular the rights and appurtenances pertaining to the property, including any right, title and interest of Seller in and to adjacent streets, alleys or rights-of-way(all of such real property, rights, and appurtenances being referred to in this Contract as the "Property"), together with any improvements, fixtures, built-in appliances, and personal property situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions,and conditions set forth below. ARTICLE II PURCHASE PRICE Amount of Purchase Price 2.01. The purchase price for the Property shall be the sum of Two Hundred Eighty-five Thousand and no/100 Dollars($285,000.00). Payment of Purchase Price 2.02.The Purchase Price shall be paid in cash at the closing. ARTICLE III PURCHASER'S OBLIGATIONS Conditions to Purchaser's Obligations 3.01. The obligations of Purchaser hereunder to consummate the transaction contemplated hereby are subject to the satisfaction of each of the following conditions (any of which may be waived in whole or in part by Purchaser at or prior to the closing). Preliminary Title Commitment 3.02. Within twenty-one (2 1) days after the date of execution of this Contract, Seller, at Seller's sole cost and expense, will obtain from Land America Commonwealth, 7000 North Mopac Expressway, Suite 350, Austin, Texas 78731 (the"Title Company")a preliminary title report(the"Title Commitment")accompanied by copies of all recorded documents relating to easements, rights-of-way, etc., affecting the Property. Purchaser will give Seller written notice on EXHIBIT 1 "All All or before the expiration of ten(10) days after Purchaser receives the Title Commitment that the condition of title as set forth in the Title Commitment is or is not satisfactory. In the event that Purchaser states that the condition is not satisfactory, Seller may undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser at or prior to Closing. In the event Seller is unable or unwilling to do so, this Contract shall thereupon be null and void for all purposes and the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. Survey 3.03. Within thirty(30) days from the date hereof, Purchaser, at Purchaser's sole cost and expense, shall cause to be delivered a current plat or survey of the Property, prepared by a duly licensed Texas land surveyor selected by Purchaser. The survey shall be staked on the ground,and the plat shall show the location of all improvements,highways, streets,roads,railroads,rivers, creeks, or other water courses, fences, easements, and rights-of-way on or adjacent to the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the property and shall set forth the number of total acres comprising the Property,together with a metes and bounds description thereof. New Surveys and Tests 3.04. Within sixty (60) days after the date hereof Purchaser is granted the right to conduct an engineering survey and feasibility study of the Property, and in this connection Purchaser or Purchaser's designated agents may enter upon the premises for purposes of soil analysis, core drilling, environmental survey, or other tests which may be deemed necessary to Purchaser or Purchaser's engineer. If it should be determined by Purchaser in Purchaser's sole judgment that the Property is not suitable for the intended purposes, then and in this event, Purchaser may, on written notice to Seller received prior to thirty(30) days from the date hereof, terminate this Contract and it shall be null and void for all purposes and the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser, less $100.00 as consideration to Seller for the execution of this Contract. If the written notice is not received within this 60 day period, the condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. Purchaser's entry onto the Property is at Purchaser's sole risk and Purchaser hereby releases and indemnifies Seller from and against all liability in connection therewith. All costs and expenses related to Purchaser's inspection of the Property will be paid for by Purchaser, and Purchaser agrees to indemnify and hold Seller harmless from and against all such costs and expenses. If either party hereto terminates this Contract under any right granted hereunder,Purchaser will repair any damages to the Property by reason of the exercise of Purchaser's rights hereunder. Miscellaneous Conditions 3.05. Seller shall have performed, observed, and complied with all of the covenants, agreements, and conditions required by this Contract to be performed,observed,and complied with by Seller prior to or as of the closing. ARTICLE IV CLOSING The closing shall be held at the Title Company, on or before November 19, 2004, or at such time, date, and place as Seller and Purchaser may agree upon(which date is herein referred to as the"closing date"). Seller's Obligations 4.01. At the closing Seller shall: (a) Deliver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and indefeasible title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements,assessments,and restrictions,except for the following: (i) General real estate taxes for the year of closing and subsequent years not yet due and payable; (ii) Any exceptions approved by Purchaser pursuant to Article III hereof;and 2 (iii) Any exceptions approved by Purchaser in writing. (b) Deliver to Purchaser a Texas Owner's Title Policy at Purchaser's sole expense, issued by Title Company, in Purchaser's favor in the full amount of the purchase price, insuring Purchaser's fee simple title to the Property subject only to those title exceptions listed above, such other exceptions as may be approved in writing by Purchaser, and the standard printed exceptions contained in the usual form of Texas Owner's Title Policy. (c) Deliver to Purchaser possession of the Property,subject only to the provisions of Article X below.. Purchaser's Obligations 4.02 At the Closing,Purchaser shall pay the cash portion of the purchase price,except for the$5,000.00 security fund to be held by Purchaser pursuant to Article X below. Proration 4.03 General real estate taxes for the then current year relating to the Property shall be prorated as of the closing date and shall be adjusted in cash at the closing. If the closing shall occur before the tax rate is fixed for the then current year,the apportionment of taxes shall be upon the basis of the tax rate for the next preceding year applied to the latest assessed valuation.All special taxes or assessments to the closing date shall be paid by Seller. Closing Costs 4.04 All costs and expenses of closing in consummating the sale and purchase of the Property shall be borne and paid as follows: Owner's Title Policy paid by Seller; Survey paid by Purchaser; Real estate commission paid fifty-percent(50%)by Seller and fifty-percent(50%)by Purchaser; Filing fees for deed paid by Seller; Filing fees for release(s)paid by Seller; Title curative matters,if any,paid by Seller; Attorney's fees paid by each respectively. Moving Expenses 4.05 In addition to the purchase price of$285,000.00, Purchaser agrees to reimburse Seller for moving expenses in the amount of$30,000.00 upon Seller's vacating the premises in accordance with Article X below. ARTICLE V REPRESENTATIONS OF SELLER 5.01 Seller represents and warrants to Buyer,as of the closing date,as follows: (1) There are no parties in possession of any portion of the Property as lessees, tenants at sufferance,or trespassers; (2) Seller has complied with all applicable laws, ordinances, regulations, and restrictions relating to the Property,or any part of it; (3) Seller is not aware of any material physical defects to the Property; (4) Seller is not aware of any environmental hazards or conditions that affect the Property; (5) Seller is not aware that the Property is or has ever been used for the storage or disposal of hazardous materials or toxic waste, or any underground tanks or containers;and 3 (6) Seller is not aware that radon, asbestos insulation or fireproofing, urea formaldehyde foam I insulation, lead based paint or other pollutants or contaminants of any nature now exist or have ever existed on the Property. ARTICLE VI REAL ESTATE COMMISSIONS The only brokers who has been involved in the negotiation and consummation of this Contract are Summit Commercial Properties and Jimmie Ann Vaughan Company. Conditioned on the closing of the sale contemplated by this Contract, a commission in the amount of three percent (3%) of the purchase price will be payable by Seller to Jimmie Ann Vaughan Company . Conditioned on the closing of the sale contemplated by this Contract, a commission in the amount of three percent (3%) of the purchase price will be payable by Purchaser to Summit Commercial Properties. This commission is to be payable in cash at the closing. If this Contract is terminated for any reason before closing, there will be no commission due or payable under the Contract. Each of the parties represents to the other that it has not incurred and will not incur any liability for brokerage fees or agent's commissions in connection with this Contract other than as set forth in this paragraph. ARTICLE VII ESCROW DEPOSIT For the purpose of securing the performance of Purchaser under the terms and provisions of this Contract, Purchaser has delivered to Title Company, the sum of Five Thousand Dollars ($5,000.00), the Escrow Deposit, which shall be paid by the Title Company to Seller in the event Purchaser breaches this Contract as provided in Article VIII hereof. At the closing, the Escrow Deposit shall be paid over to Seller and applied to the cash portion of the purchase price, provided, however, that in the event the Purchaser shall have given written notice to the Title Company that one or more of the conditions to its obligations set forth in Article III have not been met, or, in the opinion of Purchaser, cannot be satisfied, in the manner and as provided for in Article III, then the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. ARTICLE VIII BREACH BY SELLER In the event Seller shall fail to fully and timely perform any of its obligations hereunder or shall fail to consummate the sale of the Property for any reason, except Purchaser's default, Purchaser may: (1) enforce specific performance of this Contract; or (2) terminate this Contract and request that the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. ARTICLE IX BREACH BY PURCHASER In the event Purchaser should fail to consummate the purchase of the Property, the conditions to Purchaser's obligations set forth in Article III having been satisfied and Purchaser being in default and Seller not being in default hereunder, Seller shall have the right to receive the Escrow Deposit from the Title Company,the sum being agreed on as liquidated damages for the failure of Purchaser to perform the duties, liabilities, and obligations imposed upon it by the terms and provisions of this Contract, and Seller agrees to accept and take this cash payment as its total damages and relief and as Seller's sole remedy hereunder in such event. ARTICLE X SELLER TO RETAIN TEMPORARY POSSESSION After the close of escrow and conveyance of title, Seller will be entitled to remain in the premises up to and including,but not after January 16, 2005 without payment of rental or other consideration. During such time, Seller will pay all utility services and charges and will maintain the premises and all its fixtures in a good and workable condition. 4 The parties agree that nothing contained in this agreement is intended to create a relationship of landlord and tenant between them. If Seller does not vacate the premises on or before January 16, 2005, Seller will pay to Purchaser$500.00 per day, for each and every day, or portion of a day, Seller remains in possession after such date, not as rent, but as and for liquidated damages. On close of escrow, Purchaser may retain $ 5,000.00 from the amount then due Seller, The foregoing $5,000.00 and the $30,000 moving expense provided in §4.05 above shall be held by Purchaser as security for payment of all utility charges and services during such occupancy by Seller, any repairs to the property or its fixtures necessitated by Seller's occupancy, and any liquidated damages owed to Purchaser due to the retention of possession by Seller beyond January 16, 2005. On termination of the occupancy and surrender of possession by Seller to Purchaser, Purchaser will pay Seller the excess of such security fund over the total of all utility charges and expenses not paid by Seller,the cost of necessary repairs to the property,and any liquidated damages owed to Purchaser. If Seller fails, for whatever reason, to vacate the premises on or before January 16,2005,Purchaser will,in addition to all other remedies, have the right to commence any legal action or proceeding calculated to oust, evict, and remove Seller from the premises. Seller agrees to reimburse Purchaser for all reasonable attorney fees and expenses Purchaser may incur in the enforcement of rights under this agreement. ARTICLE XI MISCELLANEOUS 11.01. Assignment of Contract (a) This Contract may not be assigned without the express written consent of Seller. Survival of Covenants (b) Any of the representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein. Notice (c) Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail,postage prepaid, certified mail,return receipt requested, addressed to Seller or Purchaser,as the case may be,at the address set forth opposite the signature of the party. Texas Law to Apply (d) This Contract shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Williamson County,Texas. Parties Bound (e) This Contract shall be binding upon and inure to the benefit of the parties and their respective heirs, executors,administrators, legal representatives,successors and assigns where permitted by this Contract. Legal Construction (f) In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, this invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein. 5 Prior Agreements Superseded (g) This Contract constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. Time of Essence (h) Time is of the essence in this Contract. Gender (i) Words of any gender used in this Contract shall be held and construed to include any other gender,and words in the singular number shall be held to include the plural,and vice versa,unless the context requires otherwise. Risk of Loss (j) Seller will bear the risk of all loss or damage to the premises from all causes until the closing date. If, before the closing date, all or part of the premises are damaged by fire or by any other cause, Seller will promptly notify Purchaser in writing of this damage. After notice of this damage (from Seller or otherwise), Purchaser will have the option to require Seller either(i) to repair and restore the damaged portion of the premises to its condition immediately before this casualty, or (ii) to convey the premises, on the closing date, to Purchaser in its damaged condition and to assign to Purchaser all of Seller's rights in any claims Seller may have under the insurance policies covering the premises, or(iii) Purchaser may, at its option, terminate this Contract by written notice delivered to Seller, with a copy to Title Company. On receipt of this notice, Title Company will promptly refund to Purchaser the escrow deposit, and this Agreement will be void for all purposes. In the event of this damage, on the Purchaser's request, Seller will immediately provide Purchaser with a copy of all insurance policies covering the premises. If Purchaser elects to require Seller to repair the premises, Seller will promptly begin these repairs and will pursue their completion with due diligence. If this repair will not be completed to Purchaser's reasonable satisfaction on or before the closing date, Purchaser will have the right, but not the obligation, to delay the closing until all the repairs have been completed by Seller or until an earlier date that Purchaser deems appropriate. Personal Property Retain by Seller (k) Seller shall have the opt' to remove the front door from the resi ence ocated on Tract 1 and to alt- removed remove fence materials on both Tracts. eller shall replace the door with a similar door, subject to the approval Purchaser. Seller's option to remove the aforesaid items expires at 5:00 p.m. on January 15, 2005 and any items nwill become the property of Purchaser. �Ue Dated this day of ,2004. ��- 4� SELLER: ~ r;k Frank Correa 211 S.Brown St. Round Rock,Texas 78664 Maria Pena Correa 211 S.Brown St. Round Rock,Texas 78664 6 PURCHASER: CITY OF ROUND ROCK,TEXAS By: Nyle Maxwell,Mayor 221 E.Main Street Round Rock,Texas 78664 RECEIPT Receipt of[]copy of Contract and[]$5,000 Earnest Money in the form of a corporate check is acknowledged. Date: Land America Commonwealth 7000 North Mopac Expressway, Suite 350 Austin,Texas 78731 By: Elizabeth Young,Escrow Agent 7 DATE: October 8, 2004 SUBJECT: City Council Meeting - October 14, 2004 ITEM: 14.D.2. Consider a resolution authorizing the Mayor to execute a Real Estate Contract with Frank Correa, and wife Maria Pena Correa for the purchase of property located at 209 and 211 S. Brown Street. Department: Administration Department Staff Person: Jim Nuse, City Manager Justification: In order to have direct access to the new City Hall Building, the elevation of Brown Street at Florence must be raised approximately eight feet (8'). With the intersection raised the homes on the Correra property will be inaccessible, therefore we are recommending the purchase of these lots. Funding: Cost: $285,000.00 Funding Source: General Self-Financed Construction Outside Resources: N/A Background Information: The Council has had previous Executive Sessions regarding this item. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS REAL ESTATE CONTRACT State of Texas County of Williamson THIS CONTRACT OF SALE ("Contract") is made by and between Frank Correa and wife, Maria Pena Correa, (referred to in this Contract as "Seller") and the CITY OF ROUND ROCK, a Texas Home Rule City of 221 E. Main St. Round Rock, Williamson County, Texas (referred to in this Contract as "Purchaser"), upon the terms and conditions set forth in this Contract. ARTICLE I PURCHASE AND SALE By this Contract, Seller sells and agrees to convey, and Purchaser purchases and agrees to pay for two tracts of land situated in Williamson County,Texas,being more particularly described as follows: Tract(1) Block 2, South one-half of Lots 8, 9,and 10, Original Plat of the City of Round Rock, Williamson County,Texas, also known as 211 S. Brown St.,Round Rock,Williamson County,Texas; and Tract(2) Block 2,North one-half of Lots 8,9,and 10,Original Plat of the City of Round Rock, Williamson County,Texas,also known as 209 S.Brown St.,Round Rock,Williamson County,Texas together with all and singular the rights and appurtenances pertaining to the property, including any right, title and interest of Seller in and to adjacent streets, alleys or rights-of-way(all of such real property, rights, and appurtenances being referred to in this Contract as the "Property"), together with any improvements, fixtures, built-in appliances, and personal property situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions set forth below. ARTICLE II PURCHASE PRICE Amount of Purchase Price 2.01. The purchase price for the Property shall be the sum of Two Hundred Eighty-five Thousand and no/100 Dollars($285,000.00). Payment of Purchase Price 2.02. The Purchase Price shall be paid in cash at the closing. ARTICLE III PURCHASER'S OBLIGATIONS Conditions to Purchaser's Obligations 3.01. The obligations of Purchaser hereunder to consummate the transaction contemplated hereby are subject to the satisfaction of each of the following conditions (any of which may be waived in whole or in part by Purchaser at or prior to the closing). Preliminary Title Commitment 3.02. Within twenty-one (21) days after the date of execution of this Contract, Seller, at Seller's sole cost and expense, will obtain from Land America Commonwealth, 7000 North Mopac Expressway, Suite 350, Austin, Texas 78731 (the"Title Company") a preliminary title report(the"Title Commitment") accompanied by copies of all recorded documents relating to easements, rights-of-way, etc., affecting the Property. Purchaser will give Seller written notice on 1 or before the expiration of ten(10) days after Purchaser receives the Title Commitment that the condition of title as set forth in the Title Commitment is or is not satisfactory. In the event that Purchaser states that the condition is not satisfactory, Seller may undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser at or prior to Closing. In the event Seller is unable or unwilling to do so, this Contract shall thereupon be null and void for all purposes and the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. Survey 3.03. Within thirty(30) days from the date hereof, Purchaser, at Purchaser's sole cost and expense, shall cause to be delivered a current plat or survey of the Property, prepared by a duly licensed Texas land surveyor selected by Purchaser. The survey shall be staked on the ground,and the plat shall show the location of all improvements,highways, streets, roads,railroads, rivers, creeks, or other water courses, fences, easements, and rights-of-way on or adjacent to the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the property and shall set forth the number of total acres comprising the Property,together with a metes and bounds description thereof. New Surveys and Tests 3.04. Within sixty (60) days after the date hereof Purchaser is granted the right to conduct an engineering survey and feasibility study of the Property, and in this connection Purchaser or Purchaser's designated agents may enter upon the premises for purposes of soil analysis, core drilling, environmental survey, or other tests which may be deemed necessary to Purchaser or Purchaser's engineer. If it should be determined by Purchaser in Purchaser's sole judgment that the Property is not suitable for the intended purposes, then and in this event, Purchaser may, on written notice to Seller received prior to thirty(30) days from the date hereof, terminate this Contract and it shall be null and void for all purposes and the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser, less $100.00 as consideration to Seller for the execution of this Contract. If the written notice is not received within this 60 day period, the condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. Purchaser's entry onto the Property is at Purchaser's sole risk and Purchaser hereby releases and indemnifies Seller from and against all liability in connection therewith. All costs and expenses related to Purchaser's inspection of the Property will be paid for by Purchaser, and Purchaser agrees to indemnify and hold Seller harmless from and against all such costs and expenses. If either party hereto terminates this Contract under any right granted hereunder,Purchaser will repair any damages to the Property by reason of the exercise of Purchaser's rights hereunder. Miscellaneous Conditions 3.05. Seller shall have performed, observed, and complied with all of the covenants, agreements, and conditions required by this Contract to be performed,observed, and complied with by Seller prior to or as of the closing. ARTICLE IV CLOSING The closing shall be held at the Title Company, on or before November 19, 2004, or at such time, date, and place as Seller and Purchaser may agree upon(which date is herein referred to as the"closing date"). Seller's Obligations 4.01. At the closing Seller shall: (a) Deliver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and indefeasible title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions,except for the following: (i) General real estate taxes for the year of closing and subsequent years not yet due and payable; (ii) Any exceptions approved by Purchaser pursuant to Article III hereof;and 2 (iii) Any exceptions approved by Purchaser in writing. (b) Deliver to Purchaser a Texas Owner's Title Policy at Purchaser's sole expense, issued by Title Company, in Purchaser's favor in the full amount of the purchase price, insuring Purchaser's fee simple title to the Property subject only to those title exceptions listed above, such other exceptions as may be approved in writing by Purchaser, and the standard printed exceptions contained in the usual form of Texas Owner's Title Policy. (c) Deliver to Purchaser possession of the Property,subject only to the provisions of Article X below.. Purchaser's Obligations 4.02 At the Closing,Purchaser shall pay the cash portion of the purchase price,except for the$5,000.00 security fund to be held by Purchaser pursuant to Article X below. Prorations 4.03 General real estate taxes for the then current year relating to the Property shall be prorated as of the closing date and shall be adjusted in cash at the closing. If the closing shall occur before the tax rate is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the next preceding year applied to the latest assessed valuation.All special taxes or assessments to the closing date shall be paid by Seller. Closing Costs 4.04 All costs and expenses of closing in consummating the sale and purchase of the Property shall be borne and paid as follows: Owner's Title Policy paid by Seller; Survey paid by Purchaser; Real estate commission paid fifty-percent(50%)by Seller and fifty-percent(50%)by Purchaser; Filing fees for deed paid by Seller; Filing fees for release(s)paid by Seller; Title curative matters,if any,paid by Seller; Attorney's fees paid by each respectively. Moving Expenses 4.05 In addition to the purchase price of$285,000.00, Purchaser agrees to reimburse Seller for moving expenses in the amount of$30,000.00 upon Seller's vacating the premises in accordance with Article X below. ARTICLE V REPRESENTATIONS OF SELLER 5.01 Seller represents and warrants to Buyer, as of the closing date, as follows: (1) There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers; (2) Seller has complied with all applicable laws, ordinances, regulations, and restrictions relating to the Property,or any part of it; (3) Seller is not aware of any material physical defects to the Property; (4) Seller is not aware of any environmental hazards or conditions that affect the Property; (5) Seller is not aware that the Property is or has ever been used for the storage or disposal of hazardous materials or toxic waste,or any underground tanks or containers; and 3 (6) Seller is not aware that radon, asbestos insulation or fireproofing, urea formaldehyde foam I insulation, lead based paint or other pollutants or contaminants of any nature now exist or have ever existed on the Property. ARTICLE VI REAL ESTATE COMMISSIONS The only brokers who has been involved in the negotiation and consummation of this Contract are Summit Commercial Properties and Jimmie Ann Vaughan Company. Conditioned on the closing of the sale contemplated by this Contract, a commission in the amount of three percent (3%) of the purchase price will be payable by Seller to Jimmie Ann Vaughan Company . Conditioned on the closing of the sale contemplated by this Contract, a commission in the amount of three percent (3%) of the purchase price will be payable by Purchaser to Summit Commercial Properties. This commission is to be payable in cash at the closing. If this Contract is terminated for any reason before closing, there will be no commission due or payable under the Contract. Each of the parties represents to the other that it has not incurred and will not incur any liability for brokerage fees or agent's commissions in connection with this Contract other than as set forth in this paragraph. ARTICLE VII ESCROW DEPOSIT For the purpose of securing the performance of Purchaser under the terms and provisions of this Contract, Purchaser has delivered to Title Company, the sum of Five Thousand Dollars ($5,000.00), the Escrow Deposit, which shall be paid by the Title Company to Seller in the event Purchaser breaches this Contract as provided in Article VIII hereof. At the closing, the Escrow Deposit shall be paid over to Seller and applied to the cash portion of the purchase price, provided, however, that in the event the Purchaser shall have given written notice to the Title Company that one or more of the conditions to its obligations set forth in Article III have not been met, or, in the opinion of Purchaser, cannot be satisfied, in the manner and as provided for in Article III, then the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. ARTICLE VIII BREACH BY SELLER In the event Seller shall fail to fully and timely perform any of its obligations hereunder or shall fail to consummate the sale of the Property for any reason, except Purchaser's default, Purchaser may: (1) enforce specific performance of this Contract; or (2) terminate this Contract and request that the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. ARTICLE IX BREACH BY PURCHASER In the event Purchaser should fail to consummate the purchase of the Property, the conditions to Purchaser's obligations set forth in Article III having been satisfied and Purchaser being in default and Seller not being in default hereunder, Seller shall have the right to receive the Escrow Deposit from the Title Company,the sum being agreed on as liquidated damages for the failure of Purchaser to perform the duties, liabilities, and obligations imposed upon it by the terms and provisions of this Contract, and Seller agrees to accept and take this cash payment as its total damages and relief and as Seller's sole remedy hereunder in such event. ARTICLE X SELLER TO RETAIN TEMPORARY POSSESSION After the close of escrow and conveyance of title, Seller will be entitled to remain in the premises up to and including, but not after January 16, 2005 without payment of rental or other consideration. During such time, Seller will pay all utility services and charges and will maintain the premises and all its fixtures in a good and workable condition. 4 The parties agree that nothing contained in this agreement is intended to create a relationship of landlord and tenant between them. If Seller does not vacate the premises on or before January 16, 2005, Seller will pay to Purchaser$500.00 per day, for each and every day, or portion of a day, Seller remains in possession after such date, not as rent, but as and for liquidated damages. On close of escrow, Purchaser may retain $ 5,000.00 from the amount then due Seller, The foregoing $5,000.00 and the $30,000 moving expense provided in §4.05 above shall be held by Purchaser as security for payment of all utility charges and services during such occupancy by Seller, any repairs to the property or its fixtures necessitated by Seller's occupancy, and any liquidated damages owed to Purchaser due to the retention of possession by Seller beyond January 16, 2005. On termination of the occupancy and surrender of possession by Seller to Purchaser, Purchaser will pay Seller the excess of such security fund over the total of all utility charges and expenses not paid by Seller,the cost of necessary repairs to the property,and any liquidated damages owed to Purchaser. If Seller fails, for whatever reason, to vacate the premises on or before January 16,2005,Purchaser will, in addition to all other remedies, have the right to commence any legal action or proceeding calculated to oust, evict, and remove Seller from the premises. Seller agrees to reimburse Purchaser for all reasonable attorney fees and expenses Purchaser may incur in the enforcement of rights under this agreement. ARTICLE XI MISCELLANEOUS 11.01. Assignment of Contract (a) This Contract may not be assigned without the express written consent of Seller. Survival of Covenants (b) Any of the representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein. Notice (c) Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail,postage prepaid, certified mail,return receipt requested, addressed to Seller or Purchaser,as the case may be,at the address set forth opposite the signature of the party. Texas Law to Apply (d) This Contract shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Williamson County,Texas. Parties Bound (e) This Contract shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators,legal representatives, successors and assigns where permitted by this Contract. Legal Construction (f) In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, this invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein. 5 Prior Agreements Superseded (g) This Contract constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. Time of Essence (h) Time is of the essence in this Contract. Gender (i) Words of any gender used in this Contract shall be held and construed to include any other gender,and words in the singular number shall be held to include the plural,and vice versa,unless the context requires otherwise. Risk of Loss (j) Seller will bear the risk of all loss or damage to the premises from all causes until the closing date. If, before the closing date, all or part of the premises are damaged by fire or by any other cause, Seller will promptly notify Purchaser in writing of this damage. After notice of this damage (from Seller or otherwise), Purchaser will have the option to require Seller either(i) to repair and restore the damaged portion of the premises to its condition immediately before this casualty, or (ii) to convey the premises, on the closing date, to Purchaser in its damaged condition and to assign to Purchaser all of Seller's rights in any claims Seller may have under the insurance policies covering the premises, or(iii) Purchaser may, at its option, terminate this Contract by written notice delivered to Seller, with a copy to Title Company. On receipt of this notice, Title Company will promptly refund to Purchaser the escrow deposit, and this Agreement will be void for all purposes. In the event of this damage, on the Purchaser's request, Seller will immediately provide Purchaser with a copy of all insurance policies covering the premises. If Purchaser elects to require Seller to repair the premises, Seller will promptly begin these repairs and will pursue their completion with due diligence. If this repair will not be completed to Purchaser's reasonable satisfaction on or before the closing date, f Purchaser will have the right, but not the obligation, to delay the closing until all the repairs have been completed by,; t v Seller or until an earlier date that Purchaser deems appropriate. �; Personal Property Retain by Seller (k) Seller shall have the option to r9flnove t ie Trontdoor from the reside cn e loced on Tract 1 and to also �= � remove fence materials on both Tracts. Seller-shall replace the door with a similar door, subject to the approval of Purchaser. Seller's option to remove the aforesaid items expires at 5:00 p.m. on January 15, 2005 and any items not removed will become the property of Purchaser. Dated this day ofLOA4a/,2004. SELLER: Frank Correa 211 S.Brown St. Round Rock,Texas 78664 Maria Pena Correa 211 S.Brown St. Round Rock,Texas 78664 6 PURCHASER: CITY C By: a e ,Mayor 1 E.Mai Street Round Rock,Texas 78664 RECEIPT Receipt of[] copy of Contract and[] $5,000 Earnest Money in the form of a corporate check is acknowledged. Date: Land America Commonwealth 7000 North Mopac Expressway, Suite 350 Austin,Texas 78731 By: Elizabeth Young,Escrow Agent 7