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R-05-08-25-13F1 - 8/25/2005 RESOLUTION NO. R-05-08-25-13F1 WHEREAS, the City desires to purchase a tract of land known as Lot 1, Final Plat of Tellabs Subdivision (a replat) , a subdivision in Williamson County, Texas, also known as 601 Jeffrey Way, for the new Police Department building, and WHEREAS, Penta Jeffrey Way, L.P. , the owner of the property, has 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 Contract for Sale of Real Property with Penta Jeffrey Way, L.P. , for the purchase of the above described property, a copy of said 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 25th day of August, 2005 . NY ELL, or City of Round ock, Texas ATT CHRISTINE R. MARTINEZ, City Secretar @PFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/RS0825F1.WPD/SC 4 CONTRACT FOR SALE OF REAL PROPERTY THIS CONTRACT OF SALE ("Contract") is between PENTA JEFFREY WAY, LP, a Texas limited partnership,of 510 South Congress, Suite 400,Austin,Texas(referred to in this Contract as "Seller") and the CITY OF ROUND ROCK, Texas, a home rule city, of 221 E. Main St., Round Rock, Texas(referred to in this Contract as "Purchaser"), on the terms set forth in this Contract. ARTICLE I PURCHASE AND SALE 1.01. Seller sells and agrees to convey, and Purchaser purchases and agrees to pay for, the tract of land containing approximately 76.635 acres of land located in Williamson County, Texas, being more particularly described as follows: Lot 1, Final Plat of Tellabs Subdivision (a replat), a subdivision in Williamson County, Texas, according to the map or plat thereof, recorded in Cabinet T, Slides 141-149 of the Plat Records of Williamson County, Texas. This sale and purchase include all rights and appurtenances pertaining to the property,including any right, title or interest of Seller in adjacent streets, alleys or rights-of-way, together with any improvements, fixtures, and personal property situated on and attached to the property. The real property described above, and any rights or appurtenances are referred to in this Contract as the"Property." ARTICLE II SALES PRICE Amount and Payment of Sales Price 2.01. The sales price for the Property will be the sum of Six Million and No/100 Dollars ($6,000,000.00), which will be payable in cash at the closing. ARTICLE III PURCHASER'S OBLIGATIONS Conditions to Purchaser's Obligations 3.01.The Purchaser's obligations under this Contract are subject to the Seller complying with all of the covenants, agreements, and conditions required by this Contract and the satisfaction of each of the following conditions(any of which may be waived in whole or in part by Purchaser at or before the closing). 90375 1 W � Preliminary Title Report 3.02. Within 10 days after the date of execution of this Contract, Seller, at Seller's expense, will obtain for the Purchaser from Heritage Title Company,401 Congress Avenue, Suite 1500,Austin, Texas (the"Title Company")a preliminary title report(the"Title Report"),accompanied by copies of all recorded documents relating to easements, rights-of-way, etc., affecting the Property. Purchaser will have 10 days after receipt of the Title Report to review and approve it. In the event that any portion of the Title Report or the condition of title as set forth therein is unacceptable to Purchaser, Purchaser must, within the 10-day period, give Seller written notice of this fact. In the event that Purchaser states that one or more conditions are not acceptable, Seller may, at Seller's option, promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser. In the event that Seller chooses not or is unable to do so within 10 days after receipt of written notice, Purchaser may terminate this Contract, and the Escrow Deposit(as hereinafter defined)will be returned by the Title Company to Purchaser. Purchaser's failure to give Seller this written notice will be deemed to be Purchaser's acceptance of the Title Report. Survey 3.03.Within 30 days after the date of execution of this Contract, Purchaser,at Purchaser's expense, will provide a current plat of survey of the Property, prepared by a licensed Texas land surveyor. The survey will be staked on the ground, and the plat will 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. The survey will contain the surveyor's certification that there are no encroachments on the Property and will set forth the number of total acres and the number of net acres comprising the Property, together with a metes and bounds description. The term net acres will mean the number of acres contained in the Property,exclusive of any land lying within the 100-year flood plain and will be calculated to the nearest 100th of an acre. Purchaser will have 10 days after receipt of the survey to review and approve it. In the event any portion of the survey is unacceptable to Purchaser, Purchaser must, within the 10-day period, give Seller written notice of this fact. Seller may, at Seller's option,promptly undertake to eliminate or modify all the unacceptable portions to the reasonable satisfaction of Purchaser. In the event Seller chooses not to do so within 10 days after receipt of written notice, Purchaser may terminate this Contract, and the Escrow Deposit will be returned by the Title Company to Purchaser. Purchaser's failure to give Seller this written notice will be deemed to be Purchaser's acceptance of the survey. 2 Environmental Assessment 3.04.Within 30 days after the date of execution of this Contract,Purchaser,at Purchaser's expense, will provide a current Environmental Assessment Report for the Property prepared by an environmental specialist. Purchaser will have 10 days after receipt of the Environmental Assessment Report to review and approve it. In the event any portion of the Environmental Assessment Report is unacceptable to Purchaser, Purchaser must, within the 10-day period, give Seller written notice of this fact. Seller may, at Seller's option, promptly undertake to correct or remedy any unacceptable conditions described in the Environmental Assessment Report to the reasonable satisfaction of Purchaser. In the event Seller chooses not to do so within 10 days after receipt of written notice, Purchaser may terminate this Contract,and the Escrow Deposit will be returned by the Title Company to Purchaser. Purchaser's failure to give Seller this written notice will be deemed to be Purchaser's acceptance of the Environmental Assessment Report. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER Seller represents and warrants to Purchaser, as of the Closing Date (as hereinafter defined,) as follows: (1) There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers; (2) There is no pending or threatened condemnation or similar proceeding or assessment affecting the Property, or any part of it, nor to the best knowledge of Seller is any proceeding or assessment contemplated by any governmental authority; (3) Seller has complied with all applicable laws,ordinances,regulations,and restrictions relating to the Property, or any part of it; (4) Environmental Condition. To best of Seller's knowledge there has not been any violation of Environmental Laws related to the Real Property or the presence or release(other than as permitted by law)of Hazardous Materials on or from the Real Property except as disclosed in the environmental reports, studies, and other information relating to the environmental condition of the Real Property delivered by Seller to Purchaser or made available for Purchaser's review. "Environmental Laws"means the Resource Conservation and Recovery Act and the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") and other federal laws governing the environment as in effect on the date of this Agreement together with their implementing regulations and guidelines as of the date of this Agreement, and all state, regional, county, municipal and other local laws, 3 regulations, and ordinances that are equivalent or similar to the federal laws recited above or that purport to regulate Hazardous Materials in effect as of the date of this Agreement. "Hazardous Materials" means any substance which is (i) designated, defined, classified, or regulated as a hazardous substance, hazardous material, hazardous waste,pollutant,or contaminant under any Environmental Law, in effect as of the date of this Agreement, (ii)petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) friable asbestos, (vi) flammable explosives, (vii) infectious materials, or(viii) radioactive materials. (5) Duration: Limitations. Despite anything to the contrary contained in this Agreement or in any of the attached exhibits or in any documents executed or to be executed in connection with this Agreement (collectively, the "Purchase Documents"), it is expressly understood and agreed by and between the parties that: (i) the representations and warranties of Seller in this Article N shall survive the Closing for a period of 9 months; (ii) Seller shall have no liability to Purchaser or its successors or assigns with respect to the alleged breach by or on the part of Seller of any representation, warranty, covenant, undertaking, indemnity, or agreement contained in any of the Purchase Documents(collectively,"Seller's Undertakings") unless the valid claims for the alleged breaches aggregate more than$25,000;(iii)the recourse of Purchaser or its successors or assigns against Seller with respect to the alleged breach by or on the part of Seller of any Seller's Undertakings shall (x) be deemed waived unless Purchaser has delivered to Seller no later than 6 months after the Closing Date a written notice that Purchaser is seeking recourse under Seller's Undertakings(the"Recourse Notice"), and Purchaser has filed suit within 2 months after the date of Purchaser's delivery to Seller of the Recourse Notice,(y)be limited to an amount not to exceed $100,000 in the aggregate of all recourse of Purchaser under the Purchase Documents; and (iv) no personal liability or personal responsibility of any sort with respect to any of Seller's Undertakings or any alleged breach of Seller's Undertakings is assumed by, or shall at any time be asserted or enforceable against, any of Seller's directors, officers, employees, agents, shareholders,beneficiaries,trustees,or representatives. The foregoing provision does not prohibit Purchaser from pursuing any claim based upon a representation of Seller in this Agreement as to property condition that was known by Seller to be false when made. Such a claim is a Surviving Obligation. 6. Effect of Purchaser's Knowledge. Despite anything contained in this Agreement to the contrary, Seller shall have no liability for breaches of any representations, warranties, or certifications (individually, a "Representation" and collectively, the "Representations") that Seller makes in this Agreement or in any of the documents or instruments required to be delivered by Seller(and Purchaser shall not bring any lawsuit or other legal action against Seller or pursue any other remedies against Seller) if, at Closing, Purchaser, its officers, employees, shareholders, members, 4 partners, or agents had knowledge of the breach by Seller (including, without limitation,knowledge gained by Purchaser or any such related party in the course of its Due Diligence as to a fact or circumstance which, by its nature, indicates that a Representation was or has become untrue or inaccurate), and Purchaser elects to proceed to close the transaction contemplated by this Agreement. In addition, if any update to Seller's warranties and representations discloses a matter or circumstance that is material and adverse to Purchaser and not otherwise permitted under this Agreement, Seller shall not be in default under, this Agreement (unless the representation or warranty was untrue at the time it was made) and shall have no liability as a result thereof, and Purchaser's sole right and remedy as a result thereof shall be the right to terminate this Agreement by giving a Notice to Seller, and thereupon all Earnest Money shall be refunded to Purchaser and neither party shall have any further rights or obligations under this Agreement,except for the Surviving Obligations. (7) The Property has free access to and from public highways,streets or roads and,to the Seller's best knowledge,there is no pending or threatened governmental proceeding that would impair or result in the termination of this access. ARTICLE V CLOSING 5.01. The closing will be held at the Title Company on or before October 5, 2005 (the "Closing Date") or at the date, time and place agreed upon by Seller and Purchaser. 5.02. At the closing Seller will: (1) Deliver to Purchaser a properly executed and acknowledged Special Warranty Deed conveying marketable title in fee simple to all of the Property, free all liens, encumbrances, conditions, easements, assessments, and restrictions, except for the following: (a) General real estate taxes for the year of closing and subsequent years not yet due; (b) Any exceptions approved by Purchaser in accordance with Article III of this Contract; and (c) Any exceptions approved by Purchaser in writing. (2) Deliver to Purchaser a Texas Owner's Title Policy, at Seller's expense, issued by Title Company, in Purchaser's favor in the full amount of the sales price, insuring Purchaser's fee simple title to the Property subject to the title exceptions listed above, 5 to any other exceptions approved in writing by Purchaser,and to the standard printed exceptions contained in the usual form of Texas Owner's Title Policy, with the following exceptions: (a) The boundary and survey exceptions will be deleted at the expense of Purchaser; (b) The exception as to restrictive covenants will be endorsed"None of Record"; and (c) The exception as to the lien for taxes will be limited to the year of closing and will be endorsed"Not Yet Due and Payable." (3) Deliver to Purchaser possession of the Property. 5.03. At the Closing, Purchaser will pay the cash portion of the sales price. 5.04. General real estate taxes for the current year relating to the Property, insurance and utility charges, if any, will be prorated as of the Closing Date and will be adjusted in cash at the closing. If the closing occurs before the tax rate is fixed for the current year,the apportionment of taxes will be on the basis of the tax rate for the preceding year applied to the latest assessed valuation. All special taxes or assessments to the Closing Date will be paid by Seller. 5.05. All costs and expenses of closing in consummating the sale and purchase of the Property will paid as follows: Owner's Title Policy paid by Seller Title Company fees paid by each equally. Survey paid by Seller. Filing fees for Deed paid by Purchaser. All other filing fees paid by Seller. Title curative matters, if any, paid by Seller. Attorney's fees paid by each respectively. Real estate commission paid by Seller. ARTICLE VI REAL ESTATE COMMISSIONS 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. 6 ARTICLE VII ESCROW DEPOSIT For the purpose of securing the performance of Purchaser under the terms of this Contract,Purchaser has delivered to Title Company,the sum of Ten Thousand Dollars($10,000.00),the Escrow Deposit, which will be paid by the Title Company to Seller in the event Purchaser breaches this Contract as provided in Article IX of this Contract.At the closing,the Escrow Deposit will be paid over to Seller and applied to the cash portion of the sales price,provided,however,that in the event the Purchaser has 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, as provided for in Article III, then the Escrow Deposit will be immediately returned by the Title Company to Purchaser. ARTICLE VIII BREACH BY SELLER If Seller fails to fully and timely perform any of its obligations under this Contract or fails 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)request that the Escrow Deposit will be returned by the Title Company to Purchaser. ARTICLE IX BREACH BY PURCHASER In the event Purchaser fails to consummate the purchase of the Property, if Seller is not in default under this Contract,Seller will have the right to receive the Escrow Deposit from the Title Company, as liquidated damages for the failure of Purchaser to perform the duties imposed on it by the terms of this Contract. Seller agrees to accept this cash payment as total damages and as Seller's only remedy under this Contract in the event of Purchaser's default. ARTICLE X MISCELLANEOUS Assignment of Contract (1) This Contract may not be assigned without the express written consent of Seller. Survival of Covenants (2) 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 by this Contract, will survive the closing. 7 Notice . (3) Any notice required or permitted to be delivered under this Contract will be deemed received when sent by United States mail, postage prepaid, certified mail, return receipt requested, addressed to either Seller or Purchaser,as appropriate,at the address set forth opposite the signature of that party. Texas Law to Apply (4) This Contract will be construed in accordance with the laws of the State of Texas,and all obligations of the parties created under this Contract are performable in Williamson County, Texas. Parties Bound (5) This Contract will be binding on and inure to the benefit of the parties and their respective heirs,executors,administrators,legal representatives,successors and assigns,as permitted by this Contract. Legal Construction (6) In case any one or more of the provisions contained in this Contract for any reason is held invalid, this invalidity will not affect any other provision of this Contract, which will be construed as if the invalid or unenforceable provision had never existed. Prior Contracts Superseded (7) This Contract constitutes the only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter of this Contract. Time of Essence (8) Time is of the essence in this Contract. Risk of Loss (9) 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 redpair 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 8 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 Contract 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 of the repairs have been completed by Seller or until an earlier date that Purchaser deems appropriate. 10. Threat of Condemnation. Purchaser and Seller agree that this transaction is being made under the threat and in lieu of condemnation. 11. ' PURCHASE AS IS. PURCHASER ACKNOWLEDGES THAT PURCHASER HAS BEEN PROVIDED OR,BY THE END OF THE DUE DILIGENCE PERIOD WILL HAVE BEEN PROVIDED, SUFFICIENT OPPORTUNITY TO INSPECT, EXAMINE, AND INVESTIGATE THE PROPERTY AND TO REVIEW TITLE AND SURVEY MATTERS RELATED TO THE PROPERTY,EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN ARTICLE IV,PURCHASER WARRANTS AND ACKNOWLEDGES TO AND AGREES WITH SELLER THAT PURCHASER IS RELYING SOLELY ON ITS OWN INSPECTIONS, EXAMINATIONS, AND INVESTIGATIONS OF THE PROPERTY IN MAKING THE DECISION TO PURCHASE THE PROPERTY AND IS ACCEPTING THE PROPERTY IN ITS"AS IS,WHERE IS" CONDITION "WITH ALL FAULTS" AND DEFECTS AS OF THE CLOSING DATE AND SPECIFICALLY AND EXPRESSLY WITHOUT ANY WARRANTIES,REPRESENTATIONS,OR GUARANTEES,EITHER EXPRESS OR IMPLIED, AS TO ITS CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, OR ANY OTHER WARRANTY OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM OR ON BEHALF OF SELLER, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN ARTICLE IV, SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY,GUARANTY,OR REPRESENTATION,ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING (A)THE VALUE,NATURE,QUALITY,OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, STRUCTURAL INTEGRITY, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT ON THE PROPERTY, INCLUDING THE POSSIBILITIES FOR 'FUTURE DEVELOPMENT OF THE REAL PROPERTY;(D)THE COMPLIANCE 9 OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS,RULES, ORDINANCES,OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY;(G)THE MANNER,QUALITY,STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (H) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, OR ADJACENT TO THE PROPERTY OR ANY OTHER ENVIRONMENTAL MATTER OR CONDITION OF THE PROPERTY;OR(J)ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.PURCHASER ACKNOWLEDGES AND AGREES THAT,EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN ARTICLE IV, ANY INFORMATION 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 OR COMPLETENESS OF THAT 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 OF THE PROPERTY,FURNISHED BY ANY REAL ESTATE BROKER,AGENT,EMPLOYEE,SERVANT,OR OTHER PERSON EXCEPT FOR THE EXPRESS REPRESENTATIONS SET FORTH IN ARTICLE IV. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT PURCHASER IS A SOPHISTICATED AND EXPERIENCED PURCHASER OF PROPERTIES SUCH AS THE PROPERTY AND HAS BEEN DULY REPRESENTED BY COUNSEL IN CONNECTION WITH THE NEGOTIATION OF THIS AGREEMENT. SELLER HAS MADE NO AGREEMENT TO ALTER,REPAIR OR IMPROVE ANY OF THE PROPERTY. The date of execution of this Contract is the date executed by Seller below. SELLER Penta Jeffrey Way, LP by: its 510 South Congress, Suite 400 Austin, Texas [date] 10 EXECUTED DOCUMENT FOLLOWS CONTRACT FOR SALE OF REAL PROPERTY THIS CONTRACT OF SALE ("Contract") is between PENTA JEFFREY WAY, LP, a Texas limited partnership,of 510 South Congress, Suite 400,Austin,Texas(referred to in this Contract as "Seller") and the CITY OF ROUND ROCK, Texas, a home rule city, of 221 E. Main St., Round Rock, Texas (referred to in this Contract as "Purchaser"), on the terms set forth in this Contract. ARTICLE I PURCHASE AND SALE 1.01. Seller sells and agrees to convey, and Purchaser purchases and agrees to pay for, the tract of land containing approximately 76.635 acres of land located in Williamson County, Texas, being more particularly described as follows: Lot 1, Final Plat of Tellabs Subdivision (a replat), a subdivision in Williamson County, Texas, according to the map or plat thereof, recorded in Cabinet T, Slides 141-149 of the Plat Records of Williamson County, Texas. This sale and purchase include all rights and appurtenances pertaining to the property,including any right, title or interest of Seller in adjacent streets, alleys or rights-of-way, together with any improvements, fixtures, and personal property situated on and attached to the property. The real property described above, and any rights or appurtenances are referred to in this Contract as the "Property." ARTICLE II SALES PRICE Amount and Payment of Sales Price 2.01. The parties acknowledge and agree that the fair market value of the property is$6,530,000 as determined by an appraisal of the Property prepared by Larry Kokel,MAI,Kokel-Oberrender-Wood Appraisal,Ltd.,dated September 21,2005.The parties further agree that this transaction is part sale and part gift. As consideration for Seller's conveyance of the Property to Purchaser, Purchased agrees to the following: (1) Purchaser agrees to pay to Seller the sum of Six Million and No/100 Dollars ($6,000,000.00), which will be payable in cash at closing. (2) Seller agrees to make a gift to Purchaser of the remaining fair market value of the Property, same being Five Hundred Thirty Thousand and No/100 Dollars ($530,000.00.)At closing, Purchaser will acknowledge receipt of such gift. 92057 1 -13 F1 ARTICLE III PURCHASER'S OBLIGATIONS Conditions to Purchaser's Obligations 3.01.The Purchaser's obligations under this Contract are subject to the Seller complying with all of the covenants, agreements, and conditions required by this Contract and the satisfaction in all material respects of each of the following conditions(any of which may be waived in whole or in part by Purchaser at or before the closing). Preliminary Title Report 3.02. Within 10 days after the date of execution of this Contract, Seller,at Seller's expense,will obtain for the Purchaser from Heritage Title Company,401 Congress Avenue,Suite 1500,Austin, Texas (the"Title Company")a preliminary title report(the"Title Report"),accompanied by copies of all recorded documents relating to easements,rights-of-way,etc.,affecting the Property. Purchaser will have 10 days after receipt of the Title Report to review and approve it.In the event that any portion of the Title Report or the condition of title as set forth therein is unacceptable to Purchaser,Purchaser must,within the 10-day period,give Seller written notice of this fact.In the event that Purchaser states that one or more conditions are not acceptable, Seller may,at Seller's option,and without obligation,promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser.In the event that Seller chooses not or is unable to do so within 10 days after receipt of written notice,Purchaser may terminate this Contract,and the Escrow Deposit (as hereinafter defined)will be returned by the Title Company to Purchaser. Purchaser's failure to give Seller this written notice will be deemed to be Purchaser's acceptance of the Title Report. Survey 3.03.Within 30 days after the date ofexecution ofthis Contract, Purchaser,at Purchaser's expense, will provide a current plat of survey of the Property,prepared by a licensed Texas land surveyor. The survey will be staked on the ground,and the plat will 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. The survey will contain the surveyor's certification that there are no encroachments on the Property and will set forth the number of total acres and the number of net acres comprising the Property, together with a metes and bounds description.The term net acres will mean the number of acres contained in the Property,exclusive of any land lying within the 100-year flood plain and will be calculated to the nearest 100th of an acre. Purchaser will have 10 days after receipt of the survey to review and approve it. In the event any portion of the survey is unacceptable to Purchaser,Purchaser must,within the 10-day period,give 2 Seller written notice of this fact. Seller may, at Seller's option, and without obligation,promptly undertake to eliminate or modify all the unacceptable portions to the reasonable satisfaction of Purchaser. In the event Seller chooses not to do so within 10 days after receipt of written notice, Purchaser may terminate this Contract, and the Escrow Deposit will be returned by the Title Company to Purchaser. Purchaser's failure to give Seller this written notice will be deemed to be Purchaser's acceptance of the survey. Environmental Assessment 3.04.Within 30 days after the date of execution of this Contract,Purchaser,at Purchaser's expense, will provide a current Environmental Assessment Report for the Property prepared by an environmental specialist. Purchaser will have 10 days after receipt of the Environmental Assessment Report to review and approve it. In the event any portion of the Environmental Assessment Report is unacceptable to Purchaser,Purchaser must,within the 10-day period, give Seller written notice of this fact. Seller may, at Seller's option, and without obligation, promptly undertake to correct or remedy any unacceptable conditions described in the Environmental Assessment Report to the reasonable satisfaction of Purchaser. In the event Seller chooses not to do so within 10 days after receipt of written notice,Purchaser may terminate this Contract, and the Escrow Deposit will be returned by the Title Company to Purchaser.Purchaser's failure to give Seller this written notice will be deemed to be Purchaser's acceptance of the Environmental Assessment Report. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER Seller represents and warrants to Purchaser, as of the Closing Date (as hereinafter defined,) as follows: (1) There are no parties in possession of any portion of the Property as lessees,tenants at sufferance,or trespassers; (2) Except as set forth in Article X, paragraph 10, there is no pending or threatened condemnation or similar proceeding or assessment affecting the Property,or any part of it,nor to Seller's current actual knowledge,without inquiry, is any proceeding or assessment contemplated by any governmental authority; (3) Seller has not received any written notice that the Property is not in compliance with all applicable laws,ordinances,regulations,and restrictions relating to the Property, or any part of it; (4) Environmental Condition. To Seller's current actual knowledge, without inquiry, Seller has received no written notice that there has not been any violation of 3 Environmental Laws related to the Real Property or the presence or release (other than as permitted by law) of Hazardous Materials on or from the Real Property except as disclosed in the environmental reports, studies, and other information relating to the environmental condition of the Real Property delivered by Seller to Purchaser or made available for Purchaser's review. `Environmental Laws"means the Resource Conservation and Recovery Act and the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") and other federal laws governing the environment as in effect on the date of this Agreement together with their implementing regulations and guidelines as of the date of this Agreement,and all state,regional,county,municipal and other local laws,regulations,and ordinances that are equivalent or similar to the federal laws recited above or that purport to regulate Hazardous Materials in effect as of the date of this Agreement. "Hazardous Materials" means any substance which is (i) designated, defined, classified, or regulated as a hazardous substance,hazardous material,hazardous waste,pollutant, or contaminant under any Environmental Law, in effect as of the date of this Agreement,(ii)petroleum hydrocarbon,including crude oil or any fraction thereof and all petroleum products,(iii)PCBs,(iv)lead,(v)friable asbestos,(vi)flammable explosives,(vii)infectious materials,or(viii)radioactive materials. (5) Duration:Limitations.Despite anything to the contrary contained in this Agreement or in any of the attached exhibits or in any documents executed or to be executed in connection with this Agreement (collectively, the "Purchase Documents"), it is expressly understood and agreed by and between the parties that: (i) the representations and warranties of Seller in this Article IV shall survive the Closing for a period of 9 months; (ii) Seller shall have no liability to Purchaser or its successors or assigns with respect to the alleged breach by or on the part of Seller of any representation, warranty, covenant, undertaking, indemnity, or agreement contained in any of the Purchase Documents(collectively,"Seller's Undertakings") unless the valid claims for the alleged breaches aggregate more than$25,000;(iii)the recourse of Purchaser or its successors or assigns against Seller with respect to the alleged breach by or on the part of Seller of any Seller's Undertakings shall(x)be deemed waived unless Purchaser has delivered to Seller no later than 6 months after the Closing Date a written notice that Purchaser is seeking recourse under Seller's Undertakings(the"Recourse Notice"),and Purchaser has filed suit within 2 months after the date of Purchaser's delivery to Seller of the Recourse Notice,(y)be limited to an amount not to exceed$100,000 in the aggregate of all recourse of Purchaser under the Purchase Documents; and (iv) no personal liability or personal responsibility of any sort with respect to any of Seller's Undertakings or any alleged breach of Seller's Undertakings is assumed by, or shall at any time be asserted or enforceable against, any of Seller's directors, officers, employees, agents, shareholders,beneficiaries,trustees,or representatives. The foregoing provision does not prohibit Purchaser from pursuing any claim based upon a representation of Seller 4 in this Agreement as to property condition that was known by Seller to be false when made. Such a claim is a Surviving Obligation. 6. Effect of Purchaser's Knowle ft. Despite anything contained in this Agreement to the contrary, Seller shall have no liability for breaches of any representations, warranties, or certifications(individually,a"Representation"and collectively,the "Representations')that Seller makes in this Agreement or in any of the documents or instruments required to be delivered by Seller(and Purchaser shall not bring any lawsuit or other legal action against Seller or pursue any other remedies against Seller) if, at Closing, Purchaser, its officers, employees, shareholders, members, partners, or agents had knowledge of the breach by Seller (including, without limitation,knowledge gained by Purchaser or any such related party in the course of its Due Diligence as to a fact or circumstance which,by its nature, indicates that a Representation was or has become untrue or inaccurate), and Purchaser elects to proceed to close the transaction contemplated by this Agreement. In addition,if any update to Seller's warranties and representations discloses a matter or circumstance that is material and adverse to Purchaser and not otherwise permitted under this Agreement, Seller shall not be in default under this Agreement (unless the representation or warranty was untrue at the time it was made) and shall have no liability as a result thereof,and Purchaser's sole right and remedy as a result thereof shall be the right to terminate this Agreement by giving a Notice to Seller, and thereupon the Escrow Deposit shall be refunded to Purchaser and neither party shall have any further rights or obligations under this Agreement,except for the Surviving Obligations. (7) To Seller's current actual knowledge, without inquiry, there is no pending or threatened governmental proceeding that would impair or result in the termination of access from the Property to a public road. ARTICLE V CLOSING 5.01. The closing will be held at the Title Company on or before November 30,2005(the "Closing Date")or at the date,time and place agreed upon by Seller and Purchaser. 5.02. At the closing Seller will: (1) Deliver to Purchaser a properly executed and acknowledged Special Warranty Deed conveying indefeasible title in fee simple to all of the Property, free all liens, encumbrances, conditions,easements, assessments,and restrictions,except for the following: 5 (a) General real estate taxes for the year of closing and subsequent years not yet due; (b) Any exceptions approved, waived or deemed approved by Purchaser in accordance with Article III of this Contract;and (c) Any exceptions approved by Purchaser in writing. (2) Deliver to Purchaser a Texas Owner's Title Policy, at Seller's expense, issued by Title Company,in Purchaser's favor in the full amount of the sales price,insuring Purchaser's fee simple title to the Property subject to the title exceptions listed above, to any other exceptions approved in writing by Purchaser,and to the standard printed exceptions contained in the usual form of Texas Owner's Title Policy, with the following exceptions: (a) The boundary and survey exceptions will be deleted at the expense of Purchaser; (b) The exception as to restrictive covenants will be endorsed"None of Record"; and (c) The exception as to the lien for taxes will be limited to the year of closing. (3) Deliver to Purchaser possession of the Property. 5.03. At the Closing,Purchaser will pay the cash portion of the sales price. 5.04. General real estate taxes for the current year relating to the Property, insurance and utility charges, if any,will be prorated as of the Closing Date and will be adjusted in cash at the closing. If the closing occurs before the tax rate is fixed for the current year,the apportionment of taxes will be on the basis of the tax rate for the preceding year applied to the latest assessed valuation. All special taxes or assessments to the Closing Date will be paid by Seller. 5.05. All costs and expenses of closing in consummating the sale and purchase of the Property will be paid as follows: Owner's Title Policy paid by Seller Title Company fees paid by each equally. Survey paid by Purchaser. Filing fees for Deed paid by Purchaser. All other filing fees paid by Seller. Title curative matters,if any,paid by Seller. Attorney's fees paid by each respectively. 6 Real estate commission paid by Seller. ARTICLE VI REAL ESTATE COMMISSIONS 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. ARTICLE VII ESCROW DEPOSIT For the purpose of securing the performance of Purchaser under the terms of this Contract,Purchaser has delivered to Title Company,the sum of Ten Thousand Dollars($10,000.00),the Escrow Deposit, which will be paid by the Title Company to Seller in the event Purchaser breaches this Contract as provided in Article IX ofthis Contract.At the closing,the Escrow Deposit will be paid over to Seller and applied to the cash portion of the sales price,provided,however,that in the event the Purchaser has 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, as provided for in Article III, then the Escrow Deposit will be immediately returned by the Title Company to Purchaser. ARTICLE VIII BREACH BY SELLER If Seller fails to fully and timely perform any of its obligations under this Contract or fails to consummate the sale of the Property for any reason,except Purchaser's default,Purchaser may,as its sole remedies: (1)enforce specific performance of this Contract;or(2)request that the Escrow Deposit will be returned by the Title Company to Purchaser. ARTICLE IX BREACH BY PURCHASER In the event Purchaser fails to consummate the purchase of the Property, if Seller is not in default under this Contract,Seller will have the right to receive the Escrow Deposit from the Title Company, as liquidated damages for the failure of Purchaser to perform the duties imposed on it by the terms of this Contract. Seller agrees to accept this cash payment as total damages and as Seller's only remedy under this Contract in the event of Purchaser's default. 7 ARTICLE X MISCELLANEOUS Assignment of Contract (1) This Contract may not be assigned without the express written consent of Seller. Survival of Covenants (2) Except as specifically set forth in Article IV,paragraph(6)of this Contract,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 by this Contract, will survive the closing for a period of 9 months and shall (x) be deemed waived unless Purchaser has delivered to Seller no later than 6 months after the Closing Date a written notice that Purchaser is seeking recourse under this Contract,and Purchaser has filed suit within 2 months after the date of Purchaser's delivery to Seller of the Recourse Notice,(y)be limited to an amount not to exceed$100,040 in the aggregate of all recourse of Purchaser under the Purchase Documents;and(z)no personal liability or personal responsibility of any sort with respect to any of Seller's Undertakings or Seller's representations,warranties,covenants and agreements, or any alleged breach of Seller's Undertakings or Seller's representations,warranties,covenants and agreements is assumed by, or shall at any time be asserted or enforceable against,any of Seller's partners, or any directors, officers, employees, agents, shareholders, beneficiaries, trustees, or representatives of Seller or any of Seller's partners. Notice (3) Any notice required or permitted to be delivered under this Contract will be deemed received when sent by United States mail,postage prepaid,certified mail,return receipt requested, addressed to either Seller or Purchaser,as appropriate,at the address set forth opposite the signature of that party. Texas Law to Apply (4) This Contract will be construed in accordance with the laws ofthe State ofTexas,and all obligations of the parties created under this Contract are performable in Williamson County, Texas. Parties Bound (5) This Contract will be binding on and inure to the benefit of the parties and their respective heirs,executors,administrators,legal representatives,successors and assigns,as permitted by this Contract. 8 Legal Construction (6) In case any one or more of the provisions contained in this Contract for any reason is held invalid, this invalidity will not affect any other provision of this Contract, which will be construed as if the invalid or unenforceable provision had never existed. Prior Contracts Superseded (7) This Contract constitutes the only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter of this Contract. Time of Essence (8) Time is of the essence in this Contract. Risk of Loss (9) Seller will bear the risk of all loss or damage to the Property from all causes until the Closing Date. If,before the Closing Date,all or part of the Property 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 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 Property,or(ii)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 Contract 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. Threat of Condemnation (10) Purchaser and Seller agree that this transaction is being made under the threat and in lieu of condemnation. PURCHASE AS IS (11) PURCHASER ACKNOWLEDGES THAT PURCHASER HAS BEEN PROVIDED Olt, BY THE END OF THE DUE DILIGENCE PERIOD WILL HAVE BEEN PROVIDED, SUFFICIENT OPPORTUNITY TO INSPECT, EXAMINE, AND INVESTIGATE THE PROPERTY AND TO REVIEW TITLE AND SURVEY MATTERS RELATED TO THE PROPERTY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN ARTICLE IV, PURCHASER WARRANTS AND 9 ACKNOWLEDGES TO AND AGREES WITH SELLER THAT PURCHASER IS RELYING SOLELY ON ITS OWN INSPECTIONS,EXAMINATIONS,AND INVESTIGATIONS OF THE PROPERTY IN MAKING THE DECISION TO PURCHASE THE PROPERTY AND IS ACCEPTING THE PROPERTY IN ITS"AS IS,WHERE IS"CONDITION"WITH ALL FAULTS" AND DEFECTS AS OF THE CLOSING DATE AND SPECIFICALLY AND EXPRESSLY WITHOUT ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, AS TO ITS CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE,MERCHANTABILITY,OR ANY OTHER WARRANTY OF ANY KIND,NATURE, OR TYPE WHATSOEVER FROM OR ON BEHALF OF SELLER, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN ARTICLE IV, SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY, OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING(A)THE VALUE,NATURE,QUALITY,OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, STRUCTURAL INTEGRITY, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT ON THE PROPERTY,INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE REAL PROPERTY;(D)THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY APPLICABLE GOVERNMENTALAUTHORITY ORBODY;(E)THE HABITABILITY,MERCHANTABILITY,MARKETABILITY,PROFITABILITY,OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY;(F)THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS,IF ANY,INCORPORATED INTO THE PROPERTY; (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (H)THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, OR ADJACENT TO THE PROPERTY OR ANY OTHER ENVIRONMENTAL MATTER OR CONDITION OF THE PROPERTY; OR (J) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN ARTICLE IV, ANY INFORMATION 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 OR COMPLETENESS OF THAT 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 OF THE PROPERTY,FURNISHED BY ANY REAL ESTATE BROKER,AGENT, EMPLOYEE, SERVANT, OR OTHER PERSON EXCEPT FOR THE EXPRESS REPRESENTATIONS SET FORTH IN ARTICLE IV. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT PURCHASER IS A SOPHISTICATED AND EXPERIENCED PURCHASER OF PROPERTIES SUCH AS THE PROPERTY AND HAS BEEN DULY REPRESENTED BY COUNSEL IN CONNECTION WITH THE NEGOTIATION OF THIS 10 AGREEMENT. SELLER HAS MADE NO AGREEMENT TO ALTER,REPAIR OR IMPROVE ANY OF THE PROPERTY. Possible Tax Deferred Exchange (12) Purchaser agrees to cooperate with Seller(or Seller's constituent partners)in effecting for the benefit of Seller (or Seller's constituent partners), a simultaneous or delayed like-kind exchange of real property pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended and similar provisions of applicable state law. Purchaser agrees to execute such further documents as are reasonably necessary to effect a Section 1031 exchange for the benefit of Seller (or Seller's constituent partners provided that Purchaser shall not be obligated to delay the Closing, and all additional costs in connection with the exchange shall be borne by the Seller(or Seller's constituent partners, as the case may be). Purchaser acknowledges that as part of such exchange transaction, Seller may elect to first distribute the Property in undivided interest to its constituent partners,and the constituent partners of Seller may effectuate a simultaneous or delayed like-kind exchange. The date of execution of this Contract is the date executed by Purchaser below. SELLER: PENTA JEFFREY WAY,LP,a Texas limited partnership By: Penta Partners Investments,LLC,a Texas limited liab' ' ompany,a General P i Charles S.Teeple,I ,Manager By:Diller Corporation,a q co ration,a General Partner B Y• Salves Garza,Jr.,President By: Butler Broadcasting Mana ment Co., Inc.,a Texas coition,a Ge P By: Roy A.Ifutler,President 11 PURCHASER City of un s 2 By: e Maxwell,its Mayor 221 E.Main Street Round Rock,Texas 78664 �O_'V 0S [date] A st: uu&t&i�A�C�/i. Christine Martinez,City Secretary 12 Sheets & Crossfield P.c. ATTORNEYS AT LAW 309 East Main Street•Round Rock,TX 78664-5246 phone 512-255-8877•fax 5 t2-255-8986 March 3, 2006 Christine Martinez City of Round Rock 221 East Main Street Round Rock, TX 78664 RE: Property on 601 Jeffrey Way— Police Department Land Purchase - Tellabs Site (New Police Bldg.) Dear Christine: Please find enclosed the original closing documents (Owner Policy of Title Insurance and Recorded Deed) for the above-referenced matter. If you have any questions, please do not hesitate to contact me. Sincerely, Rose A. McMillin Enclosure 96835 OWNER'S POLICY OF TITLE INSURANCE Issued by Commonwealth Land Title Insurance Company POLICY NUMBER NLandAmerica Commonwealth Land Title Insurance Company is a member of the 1 1 5 - 1013 9 b 9 Commonwealth LandAmerica family of title insurance underwriters. SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, Commonwealth Land Title Insurance Company, a Pennsylvania corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Any statutory or constitutional mechanic's, contractor's, or materialman's lien for labor or material having its inception on or before Date of Policy; 4. Lack of a right of access to and from the land; 5. Lack of good and indefeasible title. The Company also will pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. IN WITNESS WHEREOF,COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its corporate name and seal to be hereunto affixed by its duly authorized officers,the Policy to become valid when countersigned by an authorized officer or agent of the Company. COMMONWEALTH LAND TITLE INSURANCE COMPANY Attest: Secretary President i i EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, j attorneys'fees or expenses which arise by reason of: I 1 . (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i)the occupancy, use, or enjoyment of the land; (ii)the character, dimensions or location of any improvement now or hereafter erected on the land; (iii)a separation in ownership or a change in the dimensions or area of the land or 1W any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations,except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. I I (b) Any governmental police power not excluded by(a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking that has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. j 3. Defects,liens,encumbrances, adverse claims or other matters: i (a) created,suffered,assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; c resulting in no loss or damage to the insured claimant 'I (d) attaching or created subsequent to Date of Policy; (e) resulting in loss or damage that would not have been sustained if the insured claimant had paid value for the estate or interest insuredII by this policy. 4. The refusal of any person to purchase, lease or lend money on the estate or interest covered hereby in the land described in Schedule AI i because of unmarketability of the title. 5. Any claim which arises out of the transaction vesting in the person named in paragraph 3 of Schedule A the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or other state or federal creditors' rights laws that is based on t' either(i)the transaction creating the estate or interest Insured by this Policy being deemed a fraudulent conveyance or fraudulent transfer or €' a voidable distribution or voidable dividend, (ii) the subordination or recharacterization of the estate or interest insured by this Policy as a result of the application of the doctrine of equitable subordination or(iii)the transaction creating the estate or interest insured by this Policy being deemed a preferential transfer except where the preferential transfer results from the failure of the Company or its issuing agent to timely file for record the instrument of transfer to the insured after delivery or the failure of such recordation to impart notice to a purchaser H for value or a judgment or lien creditor. �l � z.:.......--..�.,...--�.•--.�.._:-rr:.s_.�.....—mac �...,,. ._ .. .., -_. _ Texas Owner Policy T-1 (Rev. 4/4/02) TEXAS OWNER POLICY OF TITLE INSURANCE SCHEDULE A Policy No. 175-1013969 File No. 00052057 Amount of Insurance $6,530,000.00 Premium $34,133.15 DATE OF POLICY December 2, 2005 at 1:27 p.m. 1. Name of Insured: City of Round Rock, Texas 2. The estate or interest in the land that is covered by this policy is: Fee Simple 3. Title to the estate or interest in the land is insured as vested in: City of Round Rock, Texas 4. The land referred to in this policy is described as follows: Lot 1, FINAL PLAT OF TELLABS SUBDIVISION (A REPLAT), a subdivision in Williamson County, Texas, according to the map or plat thereof, recorded in Cabinet T, Slide(s) 141-143 of the Plat Records of Williamson County, Texas. Heritage Title Company of Austin,Inc. Commonwealth Land Title Insurance Company Texas Owner T-1 (Rev.1-1-93) Printed Date: February 9,2006 SCHEDULE B File No. . 00052057 Policy No. 175-1013969 This policy does not insure against loss or damage(and the Company will not pay costs,attorney's fees or expenses)that arise by reason of the terms and conditions of the leases or easements insured, if any, shown in Schedule A and the following matters: 1. The following restrictive covenants of record itemized below(the Company must either insert specific recording data or delete this exception): Cabinet K, Slide(s) 15-17 and Cabinet T, Slide(s) 141-143 of the Plat Records of Williamson County, Texas. (But omitting any covenant or restriction based on race, color, religion, sex, handicap, familial status or national origin unless and only to the extent that said covenant (a) is exempt under Chapter 42, Section 3607 of the United States Code or (b) relates to handicap but does not discriminate against handicapped persons) 2. Shortages in area. 3. Homestead or community property or survivorship rights, if any, of any spouse of any insured. 4. Any titles or rights asserted by anyone, including but not limited to, persons, the public, corporations, governments or other entities, a. to tidelands, or lands comprising the shores or beds of navigable or perennial rivers and streams,lakes, bays,gulfs or oceans, or b. to lands beyond the line of the harbor or bulkhead lines as established or changed by any government,or c. to filled-in lands,or artificial islands,or d. to statutory water rights, including riparian rights,or e. to the area extending from the line of mean low tide to the line of vegetation or the right of access to that area or easement along and across that area. 5. Standby fees, taxes and assessments by any taxing authority for the year 2006, and subsequent years, and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership, but not those taxes or assessments for prior years because of an exemption granted to a previous owner of the property under Section 1 1.13, Texas Tax Code,or because of improvements not assessed for a previous tax year. 6. The following matters and all terms of the documents creating or offering evidence of the matters (the Company must insert matters or delete this exception): a. All easements, building lines and other matters as shown and/or stated on the Plat(s) recorded in Cabinet D, Slide(s) 398, limited to that 1,377 square foot portion of the property conveyed by Special Warranty Deed recorded in Volume 2057, Page 279 of the official public records of Williamson County, Texas Cabinet D, Slide(s) 399, Cabinet K, Heritage Title Company of Austin,Inc. Commonwealth Land Title Insurance Company Texas Owner T-1(Rev.1-1-93) Printed Date: February 9,2006 SCHEDULE B- continued File No. . 00052057 Policy No. 175-1013969 Slide(s) 15-17 and Cabinet T, Slide(s) 141-143 of the Plat Records of Williamson County, Texas. b. Easement granted to Brushy Creek Water Control and Improvement District No. 1 as described and located by instrument recorded in Volume 463, Page 207 of the Plat Records of Williamson County, Texas. c. Easement granted to BJ Hughes, Inc. as described and located by instrument recorded in Volume 706, Page 846 of the Deed Records of Williamson County, Texas. d. Easement granted to Texas Power& Light Company as described and located by instrument recorded in Volume 829, Page 804 of the Deed Records of Williamson County, Texas. e. Easement granted to Texas Power& Light Company as described and located by instrument recorded in Volume 858, Page 369 of the Deed Records of Williamson County, Texas. f. Public utility easement granted to the City of Round Rock as described and located by instrument recorded in Volume 1232, Page 583 of the Official Records of Williamson County, Texas. g. Public utility easement granted to the City of Round Rock as described and located by instrument recorded in Volume 1264, Page 478 of the Official Records of Williamson County, Texas. h. Public utility easement granted to the City of Round Rock as described and located by instrument recorded in Volume 1273,Page 309 of the Official Records of Williamson County, Texas. i. Easement granted to Enserch Corporation as described and located by instrument recorded in Volume 1731, Page 742 of the Official Records of Williamson County, Texas. j. Easement and right of way granted to Texas Utilities Electric Company as described and located by instrument recorded in Volume 2003, Page 680 of the Official Records of Williamson County, Texas. k. Easement and right of way granted to Texas Utilities Electric Company as described and located by instrument recorded in Volume 2003, Page 684 of the Official Records of Williamson County, Texas. 1. Affidavit (Pollution Abatement Plan) recorded under Document No. 9538957 of the Official Records of Williamson County, Texas. m. Subject property lies within the boundaries of Upper Brushy Creek Water Control & Improvement District. n. Rights of parties in possession. Printed Date: February 9,2006 SCHEDULE B- continued File No. . 00052057 Policy No. 175-1013969 o. Chain link fence(s) not on line along the westerly and northerly property lines as shown on survey updated on November 29, 2005, prepared by Herman Crichton, Registered Professional Land Surveyor No. 4046 ("the Survey"). p. Any conflict as a result of the lack of monumentation at the easterly corners of the subject property as shown on the Survey. Heritage Title Company of Austin,Inc. 1 13� J� AulKorized Countersignature Jennifer Jacoby Ramberg Printed Date: February 9,2006 T 11.E DEED 2005096016 13 RETURN TO: HERITAGE13 pcs / 401 CONGRESS, SUITE 1500 G AUSTIN, TEXAS 78701 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED Date: November 30, 2005 Grantors: Penta Partners Investments LLC, a Texas limited liability company, as to an undivided 0.4547% interest Diller Corporation, a Texas corporation, as to an undivided 0.4545% interest Butler Broadcasting Management Co., Inc., a Texas corporation, as to an undivided 0.4547% interest 4901 Burnet Road, Ltd., a Texas limited partnership, as to an undivided 44.5350% interest BERR Properties, Ltd., a Texas limited partnership, as to an undivided 34.5503% interest Charles S. Teeple, IV, as to an undivided 9.5484% interest William M. Harriss, as to an undivided 5.0012% interest H. Dell Boothe, as to an undivided 5.0012% interest Grantee: City of Round Rock, Texas, a home-rule municipal corporation situated in the County of Williamson, State of Texas Grantee's Mailing Address: 221 E. Main Street, Round Rock, Williamson County, Texas Consideration: Ten and No/100 Dollars($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged Property (including all buildings, structures, improvements and fixtures situated thereon): Lot 1, Final Plat of Tellabs Subdivision (a replat), a subdivision in Williamson County, Texas, according to the map or plat thereof, recorded in Cabinet T, Slide(s) 141-143 of the Plat Records of Williamson County, Texas. 1 Reservations from and Exceptions to Conveyance and Warranty: All matters set forth on Exhibit "A"attached hereto and made a part hereof for all purposes. Grantors, for the Consideration and subject to the Reservations from and Exceptions to Conveyance and Warranty, grant, sell, and convey to Grantee the Property, together with all and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to Grantee and Grantee's successors and assigns forever. Grantors bind themselves and their heirs and successors to warrant and forever defend all and singular the Property to Grantee and Grantee's successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof by, through, or under Grantors but not otherwise, except as to the Reservations from and Exceptions to Conveyance and Warranty. GRANTEE ACKNOWLEDGES THAT GRANTEE HAS BEEN PROVIDED SUFFICIENT OPPORTUNITY TO INSPECT, EXAMINE, AND INVESTIGATE THE PROPERTY AND TO REVIEW TITLE AND SURVEY MATTERS RELATED TO THE PROPERTY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF GRANTORS EXPRESSLY SET FORTH IN ARTICLE IV OF THE CONTRACT FOR SALE OF REAL PROPERTY ("CONTRACT") BETWEEN PENTA JEFFREY WAY, LP, AS SELLER, AND GRANTEE, AS PURCHASER, GRANTEE WARRANTS, ACKNOWLEDGES AND AGREES WITH GRANTORS THAT GRANTEE IS RELYING SOLELY ON ITS OWN INSPECTIONS, EXAMINATIONS, AND INVESTIGATIONS OF THE PROPERTY IN MAKING THE DECISION TO PURCHASE THE PROPERTY AND IS ACCEPTING THE PROPERTY IN ITS "AS IS, WHERE IS" CONDITION "WITH ALL FAULTS" AND DEFECTS AS OF THE CLOSING DATE AND SPECIFICALLY AND EXPRESSLY WITHOUT ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, AS TO ITS CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, OR ANY OTHER WARRANTY OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM OR ON BEHALF OF GRANTORS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF GRANTORS EXPRESSLY SET FORTH IN THE ARTICLE IV OF THE CONTRACT, GRANTORS SPECIFICALLY DISCLAIM ANY WARRANTY, GUARANTY, OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING (A) THE VALUE, NATURE, QUALITY, OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, STRUCTURAL INTEGRITY, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT ON THE PROPERTY, INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE REAL PROPERTY; (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY; (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (H) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, 2 UNDER, OR ADJACENT TO THE PROPERTY OR ANY OTHER ENVIRONMENTAL MATTER OR CONDITION OF THE PROPERTY; OR (J) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. GRANTEE ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF GRANTORS CONTAINED IN ARTICLE IV OF THE CONTRACT, ANY INFORMATION PROVIDED BY OR ON BEHALF OF GRANTORS WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT GRANTORS HAVE NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKE NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF THAT INFORMATION, GRANTORS ARE NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION OF THE PROPERTY, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT, OR OTHER PERSON EXCEPT FOR THE EXPRESS REPRESENTATIONS SET FORTH IN ARTICLE IV OF THE CONTRACT. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT GRANTEE IS A SOPHISTICATED AND EXPERIENCED PURCHASER OF PROPERTIES SUCH AS THE PROPERTY AND HAS BEEN DULY REPRESENTED BY COUNSEL IN CONNECTION WITH THE PURCHASE OF THE PROPERTY. GRANTORS MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF THE PROPERTY. GRANTORS herein agree to pay all taxes on the Property for all years up to and including the year 2005, the same having been prorated as of the date of this Deed, and GRANTEE agrees to assume the payment of all taxes for the year 2006 and subsequent years. (remainder of page intentionally left blank) 3 Penta Partners Investments LLC, a Texas limited liability company By. Charles S. Teeple, IV, Manager THE STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on the day of November, 2005, by Charles S. Teeple, IV, Manager of Penta Partners Investments, LLC, a Texas limited liability company, on behalf of said limited liability company. (Notary Seal) ANotaVbAlicof the State of Texas TERRY LYNN BOHANNAN ' MY cOMMISSION EXPIRES �it• June 22,2009 4 Diller Corporation, a Texas corporation By: *stre , Jr.,President THE STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on the 3C? day of November, 2005, by Silvestre Garza, Jr., President of Diller Corporation, a Texas corporation, on behalf of said corporation. PRY p� , DONNA CODRINGTON _°' NOTARY PUBLIC , � State of Texas OyLQ.- LUG�ht ctvL ' FOFjti+yUx . 05-09-2008 Notary Public of the State of Texas 5 Butler Broadcasting Management Co., Inc., a Texas corporation By: 1p R A. Butler, President THE STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on the a9 day of November, 2005, by Roy A. Butler, President of Butler Broadcasting Management Co., Inc., a Texas corporation, on behalf of said corporation. (Notary Seal) _ Notary Public of the State of Texas DELL 6, 2 1V( STATE OF � r r'F.QF,,:" F)7 a MEMORAND PMCORDERS U 1�, page Was not All or part of the text on this clearly legible for satisfactory recordation. 6 4901 BURNET ROAD, LTD., a Texas limited partnership By: DILLER CORPORATION, a Texas corporation, General P er By: - Silve re Garza,Jr.,President THE STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on the 3y day of November, 2005, by Silvestre Garza, Jr., President of Diller Corporation, a Texas corporation, general partner of 4901 Burnet Road, Ltd., a Texas limited partnership,on behalf of said limited partnership. 4% PGs` DONNA CODRINGTON NOTARY PUBLIC (N� °45 Texas �r Lr 9-2008 Notary Public of the State of Texas 7 BERR PROPERTIES, LTD., a Texas limited partnership By: Roy A. B,tier, General Partner THE STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on the day of November, 2005, by Roy A. Butler, General Partner of BERR Properties, Ltd., a Texas limited partnership, on behalf of said limited partnership. _ -17 1 (Notary Seal) Notary Public of the State of Texas Y f A t_L BOOTHE n R`✓PUBLIC S;A E OF TEXAS ' COMM EXP 04-14-2007 8 Charles S. Teeple, IV THE STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on the day of November, 2005, by Charles S. Teeple, IV. (Notary Seal) p� otary lic the State of Texas TERRY LYNN BOHANNAN MY COMMISSION EXPIRES June 22,2009 9 H. Dell Boothe THE STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on the q�' day of November, 2005, by H. Dell Boothe. (Notary Seal) 11 Notary Public of the State of Texas =. NA RES 10 William M. Harriss THE STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on the9 7 day of November, 2005, by William M. Harriss. (Notary Seal) 4elv Notary Public of the State of Texas DELL. ROOT#-I en NOTARY PUBLIC STATE OF 1.. XAS COkfi,4 EXP 0,1- 14..P007 P.'A60.'YS'JL'.SSR`CCJd366F'!�cYS+'m-'.Ef'.�3vd:`* ,••:F:r ...-. 11 EXHIBIT A PERMITTED EXCEPTIONS 1. The restrictive covenants of record set forth in Cabinet K, Slide(s) 15-17 and Cabinet T, Slide(s) 141-143 of the Plat Records of Williamson County, Texas. 2. All easements, building lines and other matters as shown and/or stated on the Plat(s) recorded in Cabinet D, Slide(s) 398, limited to that 1,377 square foot portion of the property conveyed by Special Warranty Deed recorded in Volume 2057, Page 279 of the Official Public Records of Williamson County, Texas, Cabinet D, Slide(s) 399, Cabinet K, Slide(s) 15-17 and Cabinet T. Slide(s) 141-143 of the Plat Records of Williamson County, Texas. 3. Easement granted by Brushy Creek Water Control and Improvement District No. 1 as described and located by instrument recorded in Volume 463, Page 207 of the Plat Records of Williamson County, Texas. 4. Easement granted to BJ Hughes, Inc. as described and located by instrument recorded in Volume 706, Page 846 of the Deed Records of Williamson County, Texas. 5. Easement granted to Texas Power & Light Company as described and located by instrument recorded in Volume 829, Page 804 of the Deed Records of Williamson County, Texas. 6. Easement granted by Texas Power & Light Company as described and located by instrument recorded in Volume 858, Page 369 of the Deed Records of Williamson County, Texas. 7. Public utility easement granted to the City of Round Rock as described and located by instrument recorded in Volume 1232, Page 583 of the Official Records of Williamson County, Texas. 8. Public utility easement granted to the City of Round Rock as described and located by instrument recorded in Volume 1264, Page 478 of the Official Records of Williamson County, Texas. 9. Public utility easement granted to the City of Round Rock as described and located by instrument recorded in Volume 1273, Page 309 of the Official Records of Williamson County, Texas. 10. Easement granted to Enserch Corporation as described and located by instrument recorded in Volume 1731, Page 742 of the Official Records of Williamson County, Texas. 11. Easement and right of way granted to Texas Utilities Electric Company as described and located by instrument recorded in Volume 2003, Page 680 of the Official Records of Williamson County, Texas. 12. Easement and right of way granted to Texas Utilities Electric Company as described and located by instrument recorded in Volume 2003, Page 684 of the Official Records of Williamson County, Texas. 13. Affidavit(Pollution Abatement Plan) recorded under Document No. 9538957 of the Official Records of Williamson County, Texas. 14. Subject property lies within the boundaries of Upper Brushy Creek Water Control & Improvement District. 15. Chain link fence not on line along the westerly and northerly property lines as shown on survey updated on November 29, 2005, prepared by Herman Crichton, Registered Professional Land Surveyor No. 4046 (the "Survey"). 16. Any conflict as a result of the lack of monumentation at the easterly corners of the subject property as shown on the Survey. FILED AND RECORDED OFFICIAL PUBLIC RECORDS 2005096016 12/02/2005 01:27 PM CARRILLO $64.00 NANCY E. RISTER, COUNTY CLERK WILLIAMSON COUNTY, TEXAS