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Contract - Beckway Investments - 3/26/2015 CONTRACT FOR SALE OF REAL PROPERTY THIS CONTRACT FOR SALE OF REAL PROPERTY (referred to herein as the "Contract") is made by and between the City of Round Rock, a Texas home-rule municipality, with offices located at 221 East Main Street, Round Rock, Texas (referred to herein as the "Seller") and Beckway Investments, LLC, with offices located at 9816 Ivalene's Hope Drive, Austin, Texas 78717, (referred to herein as the "Purchaser"), on the terms and conditions which are 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, that certain tract of land located in Williamson County, Texas,being more particularly described as follows: Lot 9A, and Lot 913, Replat of Lot 9 of the Heritage Center Subdivision, a subdivision in Williamson County,Texas; according to the map and/or plat thereof, recorded in Cabinet GG, Slides 27-28 of the Plat Records of Williamson County, Texas. The real property described above, and any rights or appurtenances thereto, are hereafter referred to in this Contract as the"Property." This sale and purchase includes all rights and appurtenances pertaining to the Property,but does not include any right, title and 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. All personal property or improvements must be removed by Seller within 14 days after the Closing Date or they will become the property of the Purchaser. ARTICLE II SALES PRICE 2.01 Amount and Payment of Sales Price. The sales price for the Property will be the sum of One Million One Hundred Sixty-nine Thousand Five Hundred and no/100 Dollars($1,169,500.00), which will be payable by Purchaser in cash at the closing. ARTICLE III PURCHASER'S OBLIGATIONS 3.01 Conditions to Purchaser's Obligations. Purchaser's obligations under this Contract are subject to 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). 3.02 Preliminay Title Report. Seller has previously obtained from Texas American Title Company, 1001 S. Mays, Round Rock, Texas 78664 (referred to herein as the "Title Company") a preliminary title report (referred to herein as the "Title Report"). A copy of said Title Report is attached hereto as Exhibit "A" and incorporated herein by reference for all appropriate purposes. 00331865 By execution of this Contract, Purchaser approves and accepts said Title Report and all conditions contained therein. 3.03 Survey. Seller has previously obtained a current survey of the Property prepared by Baker- Aicklen & Associates, Inc., registered professional land surveyors, dated December 11, 2013 (referred to herein as the "Survey"). A copy of said Survey is attached hereto as Exhibit `B" and incorporated herein by reference for all appropriate purposes. By execution of this Contract, Purchaser approves and accepts said Survey and all information shown thereon. 3.04 Environmental Assessment Report. Seller has previously obtained a current Environmental Assessment Report for the Property prepared by Professional Service Industries, Inc., dated November 26, 2013 (referred to herein as the "Environmental Assessment Report"). Pages 1, 2, and 3 of said Environmental Assessment Report containing the Findings and Conclusions are attached hereto as Exhibit "C". A copy of the complete Environmental Assessment Report will be provided to Purchaser. By execution of this Contract, Purchaser approves and accepts said Environmental Assessment Report. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER 4.01 Seller represents and warrants to Purchaser, as of the Closing Date (as hereinafter defined), as follows: (1) Parties in Possession. There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers. (2) Condemnation. 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 such proceeding or assessment contemplated by any governmental authority. (3) Applicable Laws. Seller has complied with all applicable laws, ordinances, regulations, and restrictions relating to the Property, or any part of it. (4) Environmental Condition. In this subsection, "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 are in effect on the date of this Contract together with their implementing regulations and guidelines as of the date of this Contract, 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 Contract. In this subsection, "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 Contract, (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. 2 To the best of Seller's knowledge, there has not been any violation of Environmental Laws related to the Property or the presence or release (other than as permitted by law) of Hazardous Materials on or from the Property except as disclosed in the Environmental Assessment Report, or other studies and information relating to the environmental condition of the Property delivered by Seller to Purchaser or made available for Purchaser's review. (5) Effect of Purchaser's Knowledge. Despite anything contained in this Contract to the contrary, Seller shall have no liability for breaches of any representations, warranties, or certifications (referred to herein individually as a"Representation" and collectively as the "Representations") that Seller makes in this Contract 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 Contract. 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 Contract, Seller shall not be in default under this Contract (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 Contract by giving written 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 Contract, with the exception of the Surviving Covenants. (6) Access to Public Highways. The Property has free access to and from public highways, streets or roads and, to Seller's best knowledge, there is no pending or threatened governmental preceding that would impair or result in the termination of such access. ARTICLE V FEASIBILITY PERIOD 5.01. FEASIBILITY PERIOD. Purchaser shall have until ninety (90) days after the Effective Date (the "Feasibility Period"), for the right of investigation and inspection of the Property to determine whether or not Purchaser desires to proceed with the purchase of the Property. (1) Access and Indemnity. Purchaser and Purchaser's agents shall have the right of access to the Property during the Feasibility Period for the purpose of conducting such investigation and inspection. Purchaser agrees to provide Seller with copies of all written tests, studies, investigations, and other reports conducted by Purchaser, Purchaser's engineers, and other representatives of Purchaser pertaining to the Property. Purchaser shall not cause or permit damage or injury to be done to the Property and Purchaser shall repair any damage or injury to the Property resulting from Purchaser's investigation and 3 inspection of the Property. Purchaser shall indemnify and hold harmless Seller on account of any claims, causes of action, damages, costs and expenses (including attorney's fees) arising out of or relating to the acts of Purchaser, its agents and employees under the provisions of this section. This indemnity shall survive the termination of this Contract. (2) Termination of Contract. If during the Feasibility Period Purchaser determines not to go forward and close this transaction, then Purchaser shall, no later than the date of expiration of the Feasibility Period, give Seller written notification of such. However, if Purchaser does not timely provide written notice to Seller of Purchaser's acceptance or non-acceptance of the Property by the expiration of the Feasibility Period by such date then it shall be conclusively deemed that the Property is suitable for Purchaser's intended Seller use. If Purchaser gives timely written notice of its non-acceptance of the PropertyM retain the Independent Consideration, but the Earnest Money shall be refunded to the ' l Purchaser, and both parties shall be released from all further obligations under this _,,✓ Contract. It is agreed by the parties that in the event that this Contract is terminated after the expiration of the Feasibility Period, for any reason other than a default by Seller, the Earnest Money (which will include the Additional Earnest Money, if any) shall be retained by Seller as liquidated damages. ARTICLE VI CLOSING 6.01 The closing will be held at the offices of the Title Company, Texas on or before thirty(30) days following the expiration of the Feasibility Period.(herein referred to as the "Closing Date"), but the parties may mutually agree in writing for closing at a different date, time and/or place. 6.02 At the closing Seller will: (1) Deliver to Purchaser a properly executed and acknowledged Special Warranty Deed, substantially in the form attached hereto as Exhibit "D" which is incorporated herein by reference for all appropriate purposes, and such Special Warranty Deed shall convey title in fee simple to all of the Property, free of 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 writing; and (c) The easement rights specifically reserved in the Special Warranty Deed. (2) Deliver to Purchaser a Texas Owner's Title Policy, issued by the 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; 4 (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, subject to the easement rights reserved in the Special Warranty Deed. 6.03 At the closing, Purchaser will pay the sales price by cash,wire transfer or certified funds. 6.04 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. 6.05 All costs and expenses of closing in consummating the sale and purchase of the Property will paid as follows: (1) Owner's Title Policy paid by Seller; (2) Title Company fees paid by each party equally; (3) Survey paid by Seller; (4) Filing fees for Special Warranty Deed paid by Purchaser; (5) Title curative matters, if any,paid by Seller; and (6) Attorney's fees paid by each party respectively. ARTICLE VII REAL ESTATE COMMISSIONS 7.01 If and only if the Closing occurs in accordance with the terms of this Contract, Seller shall pay a 3.0% commission to Keller Williams Realty, Seller's Broker and a 3.0% commission to Ross McCuistion, Purchaser's Broker . If the Closing does not occur, then no commission payment is earned or due. Seller's Neither Broker is a party to this Contract and their consent or signature is not required to amend or terminate this Contract. Purchaser and Seller agree to indemnify, defend and hold harmless the other party from and against any and all brokerage and finder's fee claims, losses, damages, costs or expenses arising out of or resulting from any agreement, arrangement or understanding made or alleged to have been made by the indemnifying party. The representations and indemnifications in this paragraph survive each Closing and the termination of this Contract. 7.02 As required by the Texas Real Estate License Act, Purchaser has been advised that it should have the abstract covering the Property examined by an attorney of Purchaser's own selection, or that Purchaser should be furnished with or obtain a policy of title insurance. By signing this Contract, Purchaser acknowledges receipt of this notice. 5 !1� ARTICLE VIII ESCROW DEPOSIT AND INDEPENDENT CONTRACT CONSIDERATION Win 8.01 For the purpose of securing the performance of Purchaser �deerms of this Contract, Purchaser has delivered to the Title Company the sum ofd and No/100 Dollars ($9,000.00), the Escrow Deposit, which will be paid by the Title Company to Seller in the event Purchaser breaches this Contract as provided in Article X of this Contract. At the closing, the Escrow Deposit will be paid over to Seller and applied to the sales price. 8.02 On or before the Effective Date, Purchaser shall deliver to Seller in cash the sum of$1000.00 (the "Independent Contract Consideration"), which amount has been bargained for and agreed to as consideration for Purchaser's exclusive option to purchase the Property and the right of investigation and inspection granted herein, and for Seller's execution and delivery of this Contract. The Independent Contract Consideration is in addition to and independent of all other consideration provided in this Contract, and is nonrefundable in all events. However, at Closing, the Independent Contract Consideration shall be credited towards the Purchase Price. ARTICLE IX BREACH BY SELLER 9.01 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 be returned by the Title Company to Purchaser. ARTICLE X BREACH BY PURCHASER 10.01 In the event Purchaser fails to consummate the purchase of the Property, if Seller is not in default under this Contract Seller may (1) enforce specific performance of this Contract; or(2) exercise its right to receive the Escrow Deposit from the Title Company, as liquidated damages for the failure of Purchaser to perform the duties imposed on Purchaser by the terms of this Contract. In the event Seller exercises its right to receive the Escrow Deposit, 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 XI MISCELLANEOUS 11.01 Assignment of Contract. This Contract may not be assigned without the express written consent of Seller. 6 11.02 Survival of Covenants. Any of the representations, warranties, covenants, and agreements of the parties, including specifically paragraph 11.90 below, 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. 11.03 Notice. 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 below the signature of that party. 11.04 Texas Law to Apply. 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. Exclusive jurisdiction and venue shall lie in Williamson County, Texas. 11.05 Parties Bound. 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. 11.06 Legal Construction. 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. 11.07 Prior Contracts Superseded. 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. 11.08 Time of Essence. Time is of the essence in this Contract. 11.09 Purchase As Is. PURCHASER ACKNOWLEDGES THAT PURCHASER 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 SELLER EXPRESSLY SET FORTH IN ARTICLE V; PURCHASER WARRANTS AND ACKNOWLEDGES TO AND AGREES WITH SELLER THAT PURCHASER IS RELYING SOLELY ON PURCHASER'S 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 V; SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY, OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, 7 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 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, 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 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 CONTRACT. 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. 8 SELLER City of Round Rock,Texas By: Signature: Alan'-fVcGraw, Mayor 221 East Main Street Round Rock, TX 78664 Date Signed: c3 ! 2 b PURCHASER Beckway Investments, LLC By: Signature: Ross McCuistion, Member 9816 Ivalene's Hope Drive Austin, Texas ZV17 Date Signed: `O�{6"a�d�5� RECEIPT Receipt of[ ] copy of Contract and [ ] $9,000 Earnest Money,and$1,000 Independent Contract Consideration is acknowledged. Texas American Title Company, Inc. By: Escrow Agent Date: 9