R-10-02-25-10B1 - 2/25/2010RESOLUTION NO. R -10-02-25-10B 1
WHEREAS, the City desires to purchase a 43.05238 acre tract of
land known as Lot(s) 1 and 2, Block "A", Cypress Addition, a
subdivision in Williamson County, Texas, and
WHEREAS, Jimmy Nassour, 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 with Jimmy Nassour, for the
purchase of the above described property, a copy of said Contract
for Sale 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 February, 2010.
e/L.--
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Secretary
0:Awdox\SCC1ntsV0112\1005\MUNICIPAL\00183796.DOC/rc.c
CONTRACT FOR SALE
Subject to the terms and conditions of this Contract For Sale (this "Contract"), JIMMY
NASSOUR, or his assigns or nominee ("Seller"), and THE CITY OF ROUND ROCK, TEXAS, a
Texas Home Rule City ("Purchaser"), hereby agree as follows:
1. Agreement for Sale of Land. Subject to the encumbrances, restrictions and other
matters which become "Permitted Exceptions" pursuant to the provisions of this Contract, Seller
agrees to sell and convey to Purchaser, and Purchaser agrees to purchase and take from Seller,
approximately 43.0538 acres of land situated in the Williamson County, Texas, such land being
more particularly described in Exhibit A attached hereto (the "Land"), together with any and all
improvements located on the Land and all of the rights, privileges, easements and appurtenances
belonging or appertaining to the Land and such improvements (collectively, the "Property").
2. Total Purchase Price. The total purchase price for the Land (the "Purchase Price") is
Four Million Six Hundred Twenty Thousand Eight Hundred Sixty Four and 00/100 Dollars
($4,620,864.00). The Purchase Price shall be paid by Purchaser to Seller in the following manner:
a. Escrow Deposit; Title Company. Within three (3) days after the Effective
Date of this Contract, Purchaser shall deposit the sum of One Hundred and No/100 Dollars
($100.00) in cash (the "Escrow Deposit") with Independence Title Company, Attn: Gay Heavlin
(the "Title Company"). The Escrow Deposit shall be invested by the Title Company in a manner
reasonably acceptable to Purchaser, and all interest earned on such deposit shall be considered part
of the Escrow Deposit. The Escrow Deposit shall be paid to Seller at the Closing (defined below) as
a part of the Purchase Price; or, if the Closing does not occur, shall be otherwise disbursed in
accordance with this Contract.
1 EXHIBIT
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b. Cash Payment at Closing. Subject to the adjustments under Paragraph 7 of
this Contract, the balance of the Purchase Price shall be paid to Seller at the Closing by cashier's
check or in wire transferred funds, which, in either case, will allow the Title Company to disburse
those funds to Seller at the Closing.
3. Inspection by Purchaser.
a. Inspection Period. From the Effective Date of this Contract (defined below)
until the sixtieth (60th) day following the Effective Date (the "Inspection Period"), Purchaser and
Purchaser's representatives (or such other party as may be necessary pursuant to the provisions of
Paragraph 3.f below) shall be permitted to visit and inspect the Land and to conduct any feasibility,
environmental, engineering and such other studies and assessments as Purchaser may require within
its sole discretion. Purchaser shall have the right during the Inspection Period to go on the Land and
conduct all necessary inspections, soil tests, engineering tests, assessments and other studies desired
by Purchaser.
b. Termination During Inspection Period. If Purchaser is dissatisfied with the
condition of the Land, or with the results of the tests, studies or assessments, or for any other reason,
Contract for sale- clean -final- 2-23-10 (00184514).DOCO0184514.DOCOOIB 3110.DOC
then Purchaser shall have the option to terminate this Contract in Purchaser's sole discretion, which
option must be exercised by giving written notice to Seller by 5:00 p.m., Austin, Texas time, on the
last day of the Inspection Period, along with the sum of $100.00 which Purchaser shall pay to Seller
as consideration for this option. In the event of such a termination, but only after delivery to Seller
of the items required under Paragraph 3.c below and the repair of the Land as required under
Paragraph 3.d below, the Escrow Deposit made by Purchaser under Paragraph 2.a above shall be
returned to Purchaser and the parties shall have no other or further obligation or liability to each
other, except for Purchaser's confidentiality, restoration and indemnity obligations set forth
elsewhere in this Paragraph 3. In the event that no notice of termination is given within the
Inspection Period, then Purchaser shall be deemed to have satisfied itself as to all of the matters
described in Paragraph 3.a above, this Contract shall continue to be binding and in full force and
effect against Seller and Purchaser, and the Escrow Deposit shall be non-refundable except as
expressly provided otherwise herein.
c. Confidentiality. To the extent permitted by applicable law, Purchaser agrees,
that until the Closing, Purchaser and Purchaser's agents and representatives shall hold all
information obtained with respect to the Property in confidence and further agrees that until the
Closing they will not disclose its content to others. In this regard, Seller acknowledges that
Purchaser is subject to, and must strictly comply with the provisions of Chapter 552, Texas
Government Code, the Public Information Act. If this Contract is terminated for any reason, any
records and other information and copies of work sheets and other documents, reports and materials
obtained by Purchaser shall be delivered to Seller and continue to be held in confidence by
Purchaser, except to the extent the same is required to be disclosed by law or court order. The
provisions of this Paragraph 3.c shall survive any termination of this Contract.
d. Purchaser's Duties Regarding Inspection. All visits and inspections of the
Land shall be at the sole risk of Purchaser and, to the extent permitted by applicable law, Purchaser
shall indemnify and hold Seller harmless from and against any and all claims, demands, injuries,
damages, costs, expenses (including reasonable attorney's fees) or liability incurred by or asserted
against Seller as a result of, or in any way arising out of, any of those visits or inspections. If this
Contract is terminated for any reason, Purchaser shall repair any damage caused by any of those
visits or inspections so as to restore the Land to its same condition before the damage. The
provisions of this Paragraph 3.d shall survive any termination of this Contract.
e. "AS IS" ACCEPTANCE. AS A MATERIAL PART OF THE
CONSIDERATION FOR THE TRANSACTION CONTEMPLATED UNDER THIS
CONTRACT, PURCHASER AND SET .I.FR EXPRESSLY STIPULATE AND AGREE THAT
PURCHASER SHALL ACCEPT THE PROPERTY "AS IS" AND "WITH ALL FAULTS,"
WITH ANY AND ALL LATENT AND PATENT DEFECTS, AND PURCHASER HEREBY
ACKNOWLF,DGES AND AGREES THAT SELLER MAKES AND HAS MADE NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
CONDITION OF THE PROPERTY, THE 1-11 NESS OF THE PROPERTY FOR ANY
INTENDED USE OR PURPOSE, THE EXISTENCE OF ANY HAZARDOUS OR TOXIC
MA'1'LRIALS IN OR ON THE LAND OR ANY OTHER ENVIRONMENTAL CONDITION OF
THE LAND, THE AVAILABILITY OF UTILITIES OR OTHER SERVICES TO THE LAND,
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THE WORKMANSHIP OR MATERIALS USED IN THE IMPROVEMENTS ON THE
PROPERTY, OR THE PRESENT OR FUTURE INCOME THAT MAY BE GENERATED
FROM THE PROPERTY, OTHER THAN WITH RESPECT TO THE WARRANTY OF TITLE
SELLER AGREES TO DELIVER IN THE DEED REQUIRED UNDER THE PROVISIONS OF
THIS CONTRACT. EXCEPT FOR ANY EXPRESS REPRESENTATIONS SET FORTH IN
THIS CONTRACT, PURCHASER ACKNOWLEDGES THAT IT IS NOT RELYING UPON
ANY REPRESENTATIONS, STATEMENTS, ASSERTIONS OR NON -ASSERTIONS BY
SELLER WITH RESPECT TO THE CONDITION OF THE PROPERTY, BUT IS RELYING
SOLELY UPON ITS INVESTIGATION AND EXAMINATION OF THE PROPERTY. THE
PROVISIONS OF THIS PARAGRAPH 3.E SHALL SURVIVE THE CLOSING AND THE
DELIVERY OF SUCH DEED.
f. Inspection on Purchaser's Behalf. Purchaser acknowledges that Seller does
not currently own fee simple title to the Land. Seller shall use reasonable efforts to obtain the
current owner's approval to permit Purchaser's inspection of the Land during the Inspection Period.
In the alternative, Seller, at Seller's cost, agrees to use an inspector or inspectors approved by
Purchaser to conduct any investigations of the Land on Purchaser's behalf, the results of which shall
be provided to Purchaser without warranty by Seller, and the cost of which shall be reimbursed by
Purchaser to Seller within fifteen (15) days of receipt of written demand and invoices from Seller.
4. Survey. Within fifteen (15) days of the Effective Date, Seller shall provide
Purchaser with a current title survey (the "Survey") and field notes description of the Land prepared
and certified by a licensed surveyor acceptable to Purchaser, Seller and the Title Company Upon
the agreement of the parties, the legal description of the Land contained on the Survey shall be
substituted for any legal description or depiction contained herein, and the parties shall enter into an
amendment to this Contract replacing Exhibit A with such description.
If this transaction closes, the cost of the survey shall be shared equally between Seller and
Purchaser. If for any reason this transaction does not close, the cost of the Survey shall be borne
exclusively by the Seller.
Purchaser shall have until the expiration of five (5) days after receipt of the Survey to review
same and to deliver written objection to Seller which lists any matters that are objectionable to
Purchaser (collectively, "Survey Objections"). To the extent a written objection is not delivered to
Seller within such time frame, such Survey Objections shall be deemed to have been waived by
Purchaser. Seller shall have the right, but not the obligation, to cure or remove any Survey
Objections. To the extent, prior to the expiration of the Inspection Period, Seller has not cured any
Survey Objections, then, within the Inspection Period, Purchaser shall notify Seller in writing of
Purchaser's election either to waive such Survey Objections and accept the Land subject thereto or
to terminate this Contract, in which latter event the Escrow Deposit shall be returned to Purchaser
and neither party shall have any further liability hereunder. In the event Purchaser fails to notify
Seller of its election within the Inspection Period, then Purchaser shall be deemed to have waived
such Survey Objections.
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5. Title.
a. Owner Policy of Title Insurance. Seller, at Seller's expense, shall furnish to
Purchaser at Closing, or within a reasonable time thereafter, an Owner Policy of Title Insurance (the
"Title Policy") (on a form prescribed by the State Board of Insurance of the State of Texas) issued
through the Title Company, insuring title to the Land in Purchaser in the full amount of the
Purchase Price, and containing only the following exceptions (the "Permitted Exceptions"): (i) the
standard printed exception for taxes for the year of the Closing and subsequent years; (ii) the
standard printed boundary and encroachments exception and exception for shortages in area
(provided, however, that Seller will, at Purchaser's option and expense, cause the Title Company to
delete, to the extent permitted by applicable regulations, the survey exception from the Title Policy
without qualification or condition except as to "any shortages in area"); and (iii) any other matters
that become Permitted Exceptions under the provisions of Paragraph 5.b.
b. Title Commitment and Review of Title. Seller shall furnish to Purchaser,
within fifteen (15) days after the Effective Date of this Contract, a written title commitment to issue
the Owner Policy of Title Insurance (the "Title Commitment"), together with copies of all
instruments and documents referred to in such commitment. If the Title Commitment discloses any
exceptions to Seller's title other than the Permitted Exceptions ("Additional Exceptions"), then
Purchaser shall have until the expiration of five (5) days after receipt of the Title Commitment to
obtain and review any documents or other matters pertaining to the Additional Exceptions and to
deliver written objection to the Title Company and to Seller which lists the Additional Exceptions
that are objectionable to Purchaser (collectively, "Title Objections"). To the extent a written
objection is not delivered to the Title Company and to Seller within such time frame, such Title
Objections shall be deemed to have been waived by Purchaser, and all such Title Objections (other
than those constituting third party liens, security interests or other monetary encumbrances that
would be reflected on Schedule C of the Title Commitment) shall be deemed to be Permitted
Exceptions. Seller shall have the right (including, without limitation, the right to use all or any part
of the Purchase Price for the purpose of discharging and releasing at the Closing any Title
Objections), but not the obligation, to cure or remove any Title Objections in order that the Title
Policy will be issued to Purchaser at the Closing without making exception to the Title Objections.
To the extent, prior to the expiration of the Inspection Period, Seller has not cured any Title
Objections, then, within the Inspection Period, Purchaser shall notify Seller in writing of
Purchaser's election either to waive such Title Objections and accept the Land subject thereto or to
terminate this Contract, in which latter event the Escrow Deposit shall be returned to Purchaser and
neither party shall have any further liability hereunder. In the event Purchaser fails to notify Seller
of its election within the Inspection Period, then Purchaser shall be deemed to have waived such
Title Objections.
6. Closing; Closing Documents.
a. Possession and Closing. Possession of the Land shall be delivered
by Seller to Purchaser at the Closing. "Closing" shall take place at the offices of the Title
Company on or before the expiration of thirty (30) days after the expiration of the Inspection
Period, or at such other date as shall be agreed upon by Seller Purchaser.
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b. Seller's Closing Documents. At the Closing, Seller, at Seller's expense,
shall deliver or cause to be delivered to Purchaser each of the following:
(1) Deed of Conveyance. A duly executed and acknowledged special
warranty deed, in the proper form for recording, containing a description of the Land and
conveying title to the Land to Purchaser, free and clear of any and all liens, reservations,
restrictions, easements, security agreements, pledges and other encumbrances, except the
Permitted Exceptions.
(2) Tax Certificates. Tax certificates shall be available at the Title
Company from appropriate authorities showing that all taxes then due on the Land have
been paid, or amounts sufficient to pay those taxes shall be withheld by the Title Company
from the Purchase Price for that purpose.
(3) Evidence of Authority. Evidence of authority reasonably acceptable
to Purchaser and the Title Company, reflecting that the person who has signed this Contract
on behalf of Seller has been duly authorized to execute this Contract and identifying the
person or persons who are authorized to execute all of Seller's closing documents on
Seller's behalf and showing approval of the sale of the Land to Purchaser under the terms
and provisions of this Contract.
(4) Non -Foreign Certificate. A certificate stating that Seller is not a
"foreign person" as defined in the federal Foreign Investment in Real Property Tax Act of
1980 and the 1984 Tax Reform Act, as amended.
(5) Other Documents. Any other documents required by this Contract to
be delivered by Seller at the Closing or otherwise reasonably necessary to carry out the
terms and conditions hereof, including the Development Agreement described in Paragraph
10 below.
c. Purchaser's Closing Documents. At the Closing, Purchaser, at Purchaser's
expense, shall deliver to Seller the following:
(1) Cash Payment. The cash payment of the Purchase Price and any
additional sums provided for in this Contract, subject to adjustment as set forth below.
(2) Evidence of Authority. Evidence of authority reasonably acceptable
to Seller and the Title Company, reflecting that the person who has signed this Contract on
behalf of Purchaser has been duly authorized to execute this Contract and identifying the
person or persons who are authorized to execute all of Purchaser's closing documents on
Purchaser's behalf and showing approval of the purchase of the Property from Seller under
the terms and provisions of this Contract.
(3) Other Documents. Any other documents or instruments required by
this Contract to be delivered by Purchaser at the Closing or otherwise reasonably necessary
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to carry out the terms and conditions hereof, including the Development Agreement
described in Paragraph 10 below.
7. Adjustments at Closing. The following prorations and adjustments shall be made at
the Closing and, as the case may be, deducted from or added to the amount Purchaser is required to
pay at the Closing under Paragraph 2.b of this Contract:
a. Taxes. Ad valorem taxes for the year of Closing shall be prorated at the date
of Closing. If the tax rate has not been fixed for that year, the apportionment of taxes shall be upon
the basis of the tax rate for the preceding year applied to the latest assessed valuation. Taxes for the
year of the Closing, and subsequent assessments for prior years due to change in use or ownership,
shall be assumed by Purchaser. If the Land does not constitute a separate tax lot for the year of
Closing, Purchaser shall escrow with the Title Company the amount of any prorated taxes for which
Purchaser receives a credit at Closing plus the estimated taxes on the Land for the balance of the tax
year.
b. Title Insurance and Other Closing Expenses. Except as is otherwise
provided herein, each party shall pay its own customary closing expenses and its own attorney's
fees. Seller shall pay the premium for the Title Policy (excluding endorsements), one-half of the
escrow fee charged by the Title Company and all recording fees (other than for liens created by
Purchaser at Closing). Purchaser shall pay the premium for any Title Policy endorsements, one-half
of the escrow fee charged by the Title Company, and the recording fees for any liens created by
Purchaser at Closing.
8. Remedies Upon Default.
a. Seller's Default. If Seller fails to complete this sale in accordance with the
terms and provisions of this Contract for any reason except Purchaser's default hereunder or the
failure of an express condition to Seller's obligations to be satisfied, Purchaser shall have, as
Purchaser's sole and exclusive remedies against Seller under this Contract, at law or in equity, the
option of either (i) terminating this Contract by giving written notice to Seller at or prior to the
Closing, whereupon the Escrow Deposit shall be returned to Purchaser by the Title Company and
Purchaser and Seller shall have no other or further liability or obligation to each other, except those
obligations that expressly survive the termination of this Contract, or (ii) enforcing specific
performance of this Contract.
b. Purchaser's Default. If Purchaser fails to complete this sale in accordance
with the terms and provisions of this Contract for any reason except Seller's default, Seller shall
have the right, as Seller's sole and exclusive remedy, to terminate this Contract by giving written
notice of such termination to Purchaser and to the Title Company, whereupon the Escrow
Deposit shall be paid to and/or retained by Seller as liquidated damages (it being agreed that it
would be extremely difficult, if not impossible, to calculate the actual damages to Seller), after
which Purchaser and Seller shall have no other or further liability or obligation to each other
hereunder, except those obligations that expressly survive the termination of this Contract.
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c. Waiver; Attorneys' Fees. The requirements imposed upon Seller in this
Contract are for the Purchaser's benefit, and those requirements or other provisions for the
Purchaser's benefit may be waived in writing by Purchaser. Likewise, the requirements imposed
upon Purchaser in this Contract are for the Seller's benefit, and those requirements or other
provisions for the Seller's benefit may be waived in writing by Seller. If it shall be necessary for
either Purchaser or Seller to employ an attorney to enforce its rights pursuant to this Contract (or
defend any such enforcement action), the non -prevailing party shall reimburse the prevailing party
for such party's costs of court and reasonable attorneys' fees.
9. Title Contingency. Purchaser and Seller acknowledge that Seller does not
currently own fee simple title to the Land, and is currently negotiating with a third party for the
purchase of a larger parcel of real property of which the Land is a part. Purchaser's and Seller's
obligations under this Contract are expressly conditioned and contingent upon Seller obtaining title
to the Land. In the event Seller is unable to obtain title to the Land on or before the Closing Date,
either Seller or Purchaser may terminate this Contract by written notice to the other, in which
event the Escrow Deposit shall be returned to Purchaser and neither party shall have any further
obligation to the other, except for any obligations which survive the termination of this Contract.
10. Development Agreement. During the Inspection Period, Seller and Purchaser shall
negotiate in good faith the final form of a development agreement (the "Development Agreement")
covering the Land and any adjacent property owned by Seller or its affiliates (the "Adjacent Land").
The Development Agreement shall contain reference, in part, to the following matters:
(a) Roadway alignment for the extension of public roadways through the Land
and the Adjacent Land;
(b) Dedication of right-of-way for such new roadways by Purchaser, as
contemplated below;
(c) Access alternatives to IH -35;
(d) Modification of any floodplain on the Adjacent Land; and
(e) Any other matters related to the intended development of the Land and the
Adjacent Land, including easements for such development.
The parties acknowledge and agree that it is the intent of the parties (i) to mutually agree
on the roadway alignment referred to above, as well as the dam structure supporting such
roadway in flood plain areas, and (ii) for Seller to dedicate a 120 foot right-of-way for such
roadways on the Adjacent Land, such dedication to occur upon execution of the Development
Agreement.
In the event, after using due diligence and negotiating in good faith, the parties are unable
to agree on the form of the Development Agreement prior to the expiration of the Inspection
Period, either Seller or Purchaser may terminate this Agreement upon written notice to the other
prior to the expiration of the Inspection Period, in which event the Escrow Deposit shall be
returned to Purchaser, and neither party shall have any further obligation to the other, except for
those obligations which survive the termination of this Contract.
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11. Condemnation. If, prior to the Closing, all or any part of the Land is condemned or
is the subject of a threat of condemnation, Purchaser shall have the option of either (i) proceeding to
close this transaction and accepting an assignment of any condemnation award or (ii) terminating
this Contract. Purchaser shall exercise either election by the delivery of written notice to Seller
within ten (10) days of the date Seller notifies Purchaser in writing of such condemnation, and, if
Purchaser shall fail to timely make such election, Purchaser shall be deemed to have elected the
option specified at clause (i) hereof. In the event of the termination of this Contract under the
provisions of this paragraph, the Escrow Deposit shall be returned to Purchaser and the parties shall
have no further obligation or liability to one another hereunder (except for those obligations
expressly surviving the termination of this Contract).
12. Real Estate Commissions; Disclosures.
a. Seller and Purchaser represent and warrant to each other that they have dealt
with no broker, finder or similar agent in connection with the transaction provided for in this
Contract. Seller agrees to hold Purchaser harmless from and against any claim made by any person
claiming to have dealt with Seller in connection with this transaction, including reasonable
attorney's fees incurred in the defense of such a claim. Purchaser agrees to hold Seller harmless
from and against any claim made by any person claiming to have dealt with Purchaser in connection
with this transaction, including reasonable attorneys' fees incurred in the defense of such a claim.
b. PURCHASER ACKNOWLEDGES THAT IT HAS BEEN ADVISED
THAT IT SHOULD HAVE AN ABSTRACT COVERING THE PROPERTY EXAMINED BY
AN ATTORNEY OF ITS SET.FCTION, OR SHOULD BE FURNISHED WITH OR OBTAIN A
POLICY OF TITLE INSURANCE COVERING THE PROPERTY.
13. Notices. Any notices required or permitted to be given under this Contract shall be
in writing and shall be deemed to be given (i) on the first (1st) business day after timely delivery to
a nationally or regionally recognized overnight courier service guaranteeing next business day
delivery, (ii) on the third (3rd) business day after being deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, or (iii) on the day transmitted by
facsimile, provided that the sender retains the written confirmation of the delivery thereof and
delivers a "hard copy" of such notice to the recipient no later than one (1) business day thereafter by
means of delivery in accordance with either clause (i) or (ii) hereof, which in any event shall be
addressed to Seller or Purchaser, as the case may be, at the address or telecopy number indicated on
the signature page hereto, or to a different address or telecopy number as previously given in a
notice to the other party. A copy of any notice given to Seller shall be given at the same time and in
the same manner as the notice to Seller to:
Stephen O. Drenner
Drenner & Golden Stuart Wolff, LI.P
301 Congress Avenue, Suite 1200
Austin, Texas 78701
Phone: (512) 404-2207
Fax: (512) 404-2244
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A copy of any notice given to Purchaser shall be given at the same time and in the same manner as
the notice to Purchaser to:
Stephan Sheets
Sheets & Crossfield, P.C.
309 E. Main Street
Round Rock, Texas 78664
Phone: (512) 255-8877
Fax: (512) 255-8986
14. Miscellaneous.
a. Assignment; Binding Effect; Authority. Purchaser may not assign this
Contract to any other person or entity without the prior written consent of Seller, and no assignment
permitted hereunder shall operate to release Purchaser of its liabilities or obligations under this
Contract without the express written consent of Seller. Subject to this restriction on assignment, this
Contract and all of its terms and provisions shall be binding upon and inure to the benefit of Seller,
and the successors and assigns of Seller, and Purchaser, and the successors and assigns of
Purchaser. Seller and Purchaser represent that they are duly organized, validly existing and in good
standing under the laws of the state of their organization, that they have the legal power to enter into
this Contract and to perform all the terms of this Contract, and that the persons signing this Contract
on their behalf are fully authorized to sign for and to bind them.
b. Complete Agreement; Headings; Waiver. This Contract contains the
complete agreement of the parties and cannot be amended or modified except by written agreement
signed by Seller and Purchaser. The paragraph headings herein are for reference purposes only and
are not intended in any way to describe, interpret, define or limit the scope, content or extent of this
Contract or any part of it. If any portion of this Contract is held by a court of proper jurisdiction to
be invalid or inoperative, then so far as is reasonable and possible, the remainder of the Contract
shall be deemed valid and operative, and effect shall be given to the intent manifested by the portion
held invalid or inoperative. The failure by either party to enforce against the other any term or
provisions of this Contract shall not be deemed to be a waiver of that party's right to enforce against
the other party the same or any other term or provision. The terms and provisions of this Contract
shall not merge with, or be extinguished or otherwise affected by, any subsequent conveyance or
instrument between the parties, unless the instrument specifically so states and is signed by both
parties.
c. Governing Law. This Contract and the obligations under this Contract shall
be construed in accordance with, governed by, and shall be subject to, the laws of the State of
Texas. Venue shall be in Williamson County, Texas.
d. Time Periods. Unless otherwise expressly provided herein, all periods for
performance, delivery, review or approval and the like shall be determined on a "calendar" day
basis. If any day for performance, delivery, review or approval shall fall on a Saturday, Sunday or
legal holiday (state or federal) in Round Rock, Williamson County, Texas, the time therefore shall
be extended to the next business day.
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e. Execution in Counterparts. The Contract can be executed in counterparts,
each of which shall be an original and, upon the delivery to the Title Company of one or more of the
Contracts signed by all parties, together will constitute a fully executed and binding Contract. As
soon as possible, the parties agree to exchange Contracts so that each party will have a fully
executed Contract.
f. Effective Date of Contract. For purposes of this Contract it is agreed that the
Effective Date of this Contract shall be the date on which a fully executed copy of this Contract,
signed by both Seller and Purchaser, is deposited with the Title Company. The receipt of this
Contract issued by the Title Company shall be conclusive evidence of the Effective Date of this
Contract.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Contract as of the dates set forth
opposite their respective signatures, but to he effective as of the Effective Date described above.
Date executed by Seiler:
i2E.6k , 2010
Address: 3839 Bee Caves Road
Suite 200
Austin. Texas 78746
Phone: (512) 474-2900
Fax : (512) 474-4547
SELLER:
/
assouror assigns
PURCHASER:
CI -FY OF ROUND ROCK, TEXAS
Date executed by Purchaser: By:
Name: Alan McGraw, Mayor
, 2010
Address: City of Round Rock
Attn: Jim Nuse, City Manager
221 E. Main Street
Round Rock, Texas
Phone: (512) 218-5410
Fax: (512) 218-7097
TITT E COMPANY RECEIPT
The undersigned, ., hereby acknowledges receipt of a
fully executed copy of this Contract, and agrees to perform the duties of Title Company, including
disbursement of the Escrow Deposit, strictly in accordance with the terms of the Contract.
TITT E COMPANY:
Independence Title Company
By:
Name:
Title:
Date: , 2010
EXHIBIT A
Description of Land
43.0538 acres out of the following:
Lot(s) 1 and 2, Block "A", CYPRESS ADDITION, a subdivision in Williamson County, Texas,
according to the map or plat thereof, recorded in Cabinet N, Slide(s) 266-268 of the Plat records
of Williamson County, Texas,
And being more particularly shown on Exhibit A-1 attached hereto.
EXHIBIT A-1
DATE: February 18, 2010
SUBJECT: City Council Meeting — February 25, 2010
ITEM: 1081. Consider a resolution authorizing the Mayor to execute a Contract for Sale with
Jimmy Nassour for the purchase of 43.0538 acres (Cypress Semi -Conductor tract).
Department:
Staff Person:
Justification:
Administration
Jim Nuse, City Manager
The purchase of this property will provide a site for the future special events center.
Strategic Plan Relevance:
Spaces and Places; Economic Development
Funding:
Cost:
Source:
$4.7M
Hotel Occupancy Tax Fund
Outside Resources:
Jimmy Nassour
Public Comment:
N/A
EXECUTED
DOCUMENT
FOLLOWS
CONTRACT FOR SALE
Subject to the terms and conditions of this Contract For Sale (this "Contract"), JIMMY
NASSOUR, or his assigns or nominee ("Seller"), and THE CITY OF ROUND ROCK, TEXAS, a
Texas Home Rule City ("Purchaser"), hereby agree as follows:
1. Agreement for Sale of Land. Subject to the encumbrances, restrictions and other
matters which become "Permitted Exceptions" pursuant to the provisions of this Contract, Seller
agrees to sell and convey to Purchaser, and Purchaser agrees to purchase and take from Seller,
approximately 43.0538 acres of land situated in the Williamson County, Texas, such land being
more particularly described in Exhibit A attached hereto (the "Land"), together with any and all
improvements located on the Land and all of the rights, privileges, easements and appurtenances
belonging or appertaining to the Land and such improvements (collectively, the "Property").
2. Total Purchase Price. The total purchase price for the Land (the "Purchase Price") is
Four Million Six Hundred Twenty Thousand Eight Hundred Sixty Four and 00/100 Dollars
($4,620,864.00). The Purchase Price shall be paid by Purchaser to Seller in the following manner:
a. Escrow Deposit; Title Company. Within three (3) days after the Effective
Date of this Contract, Purchaser shall deposit the sum of One Hundred and No/100 Dollars
($100.00) in cash (the "Escrow Deposit") with Independence Title Company, Attn: Gay Heavlin
(the "Title Company"). The Escrow Deposit shall be invested by the Title Company in a manner
reasonably acceptable to Purchaser, and all interest earned on such deposit shall be considered part
of the Escrow Deposit. The Escrow Deposit shall be paid to Seller at the Closing (defined below) as
a part of the Purchase Price; or, if the Closing does not occur, shall be otherwise disbursed in
accordance with this Contract.
b. Cash Payment at Closing. Subject to the adjustments under Paragraph 7 of
this Contract, the balance of the Purchase Price shall be paid to Seller at the Closing by cashier's
check or in wire transferred funds, which, in either case, will allow the Title Company to disburse
those funds to Seller at the Closing.
3. Inspection by Purchaser.
a. Inspection Period. From the Effective Date of this Contract (defined below)
until the sixtieth (60th) day following the Effective Date (the "Inspection Period"), Purchaser and
Purchaser's representatives (or such other party as may be necessary pursuant to the provisions of
Paragraph 3.f below) shall be permitted to visit and inspect the Land and to conduct any feasibility,
environmental, engineering and such other studies and assessments as Purchaser may require within
its sole discretion. Purchaser shall have the right during the Inspection Period to go on the Land and
conduct all necessary inspections, soil tests, engineering tests, assessments and other studies desired
by Purchaser.
b. Termination During Inspection Period. If Purchaser is dissatisfied with the
condition of the Land, or with the results of the tests, studies or assessments, or for any other reason,
1 Contract for sale- clean -final- 2-23-10 (00184514).DOC
2- to --U2- 2f -t0 �1
then Purchaser shall have the option to terminate this Contract in Purchaser's sole discretion, which
option must be exercised by giving written notice to Seller by 5:00 p.m., Austin, Texas time, on the
last day of the Inspection Period, along with the sum of $100.00 which Purchaser shall pay to Seller
as consideration for this option. In the event of such a termination, but only after delivery to Seller
of the items required under Paragraph 3.c below and the repair of the Land as required under
Paragraph 3.d below, the Escrow Deposit made by Purchaser under Paragraph 2.a above shall be
returned to Purchaser and the parties shall have no other or further obligation or liability to each
other, except for Purchaser's confidentiality, restoration and indemnity obligations set forth
elsewhere in this Paragraph 3. In the event that no notice of termination is given within the
Inspection Period, then Purchaser shall be deemed to have satisfied itself as to all of the matters
described in Paragraph 3.a above, this Contract shall continue to be binding and in full force and
effect against Seller and Purchaser, and the Escrow Deposit shall be non-refundable except as
expressly provided otherwise herein.
c. Confidentiality. To the extent permitted by applicable law, Purchaser agrees,
that until the Closing, Purchaser and Purchaser's agents and representatives shall hold all
information obtained with respect to the Property in confidence and further agrees that until the
Closing they will not disclose its content to others. In this regard, Seller acknowledges that
Purchaser is subject to, and must strictly comply with the provisions of Chapter 552, Texas
Government Code, the Public Information Act. If this Contract is terminated for any reason, any
records and other information and copies of work sheets and other documents, reports and materials
obtained by Purchaser shall be delivered to Seller and continue to be held in confidence by
Purchaser, except to the extent the same is required to be disclosed by law or court order. The
provisions of this Paragraph 3.c shall survive any termination of this Contract.
d. Purchaser's Duties Regarding Inspection. All visits and inspections of the
Land shall be at the sole risk of Purchaser and, to the extent permitted by applicable law, Purchaser
shall indemnify and hold Seller harmless from and against any and all claims, demands, injuries,
damages, costs, expenses (including reasonable attorney's fees) or liability incurred by or asserted
against Seller as a result of, or in any way arising out of, any of those visits or inspections. If this
Contract is terminated for any reason, Purchaser shall repair any damage caused by any of those
visits or inspections so as to restore the Land to its same condition before the damage. The
provisions of this Paragraph 3.d shall survive any termination of this Contract.
e. "AS IS" ACCEPTANCE. AS A MATERIAL PART OF THE
CONSIDERATION FOR THE TRANSACTION CONTEMPLATED UNDER THIS
CONTRACT, PURCHASER AND SET .1FR EXPRESSLY STIPULATE AND AGREE THAT
PURCHASER SHALL ACCEPT THE PROPERTY "AS IS" AND "WITH ALL FAULTS,"
WITH ANY AND ALL LATENT AND PATENT DEFECTS, AND PURCHASER HEREBY
ACKNOWLEDGES AND AGREES THAT SFT LFR MAKES AND HAS MADE NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPI ,IFD, WITH RESPECT TO THE
CONDITION OF THE PROPERTY, THE F1'I'NESS OF THE PROPERTY FOR ANY
INTENDED USE OR PURPOSE, THE EXIS PENCE OF ANY HAZARDOUS OR TOXIC
MATERIALS IN OR ON THE LAND OR ANY OTHER ENVIRONMENTAL CONDITION OF
THE LAND, THE AVAILABILITY OF UTILITIES OR OTHER SERVICES TO THE LAND,
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THE WORKMANSHIP OR MATERIALS USED IN THE IMPROVEMENTS ON THE
PROPERTY, OR THE PRESENT OR FUTURE INCOME THAT MAY BE GENERATED
FROM THE PROPERTY, OTHER THAN WITH RESPECT TO THE WARRANTY OF TITLE
SFT.IFR AGREES TO DELIVER IN THE DEED REQUIRED UNDER THE PROVISIONS OF
THIS CONTRACT. EXCEPT FOR ANY EXPRESS REPRESENTATIONS SET FORTH IN
THIS CONTRACT, PURCHASER ACKNOWTFDGES THAT IT IS NOT RELYING UPON
ANY REPRESENTATIONS, STATEMENTS, ASSERTIONS OR NON -ASSERTIONS BY
SET I ER WITH RESPECT TO THE CONDITION OF THE PROPERTY, BUT IS RELYING
SOLFLY UPON ITS INVESTIGATION AND EXAMINATION OF THE PROPERTY. THE
PROVISIONS OF THIS PARAGRAPH 3.E SHALL SURVIVE THE CLOSING AND THE
DELIVERY OF SUCH DEED.
f. Inspection on Purchaser's Behalf. Purchaser acknowledges that Seller does
not currently own fee simple title to the Land. Seller shall use reasonable efforts to obtain the
current owner's approval to permit Purchaser's inspection of the Land during the Inspection Period.
In the alternative, Seller, at Seller's cost, agrees to use an inspector or inspectors approved by
Purchaser to conduct any investigations of the Land on Purchaser's behalf, the results of which shall
be provided to Purchaser without warranty by Seller, and the cost of which shall be reimbursed by
Purchaser to Seller within fifteen (15) days of receipt of written demand and invoices from Seller.
4. Survey. Within fifteen (15) days of the Effective Date, Seller shall provide
Purchaser with a current title survey (the "Survey") and field notes description of the Land prepared
and certified by a licensed surveyor acceptable to Purchaser, Seller and the Title Company Upon
the agreement of the parties, the legal description of the Land contained on the Survey shall be
substituted for any legal description or depiction contained herein, and the parties shall enter into an
amendment to this Contract replacing Exhibit A with such description.
If this transaction closes, the cost of the survey shall be shared equally between Seller and
Purchaser. If for any reason this transaction does not close, the cost of the Survey shall be borne
exclusively by the Seller.
Purchaser shall have until the expiration of five (5) days after receipt of the Survey to review
same and to deliver written objection to Seller which lists any matters that are objectionable to
Purchaser (collectively, "Survey Objections"). To the extent a written objection is not delivered to
Seller within such time frame, such Survey Objections shall be deemed to have been waived by
Purchaser. Seller shall have the right, but not the obligation, to cure or remove any Survey
Objections. To the extent, prior to the expiration of the Inspection Period, Seller has not cured any
Survey Objections, then, within the Inspection Period, Purchaser shall notify Seller in writing of
Purchaser's election either to waive such Survey Objections and accept the Land subject thereto or
to terminate this Contract, in which latter event the Escrow Deposit shall be returned to Purchaser
and neither party shall have any further liability hereunder. In the event Purchaser fails to notify
Seller of its election within the Inspection Period, then Purchaser shall be deemed to have waived
such Survey Objections.
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5. Title.
a. Owner Policy of Title Insurance. Seller, at Seller's expense, shall furnish to
Purchaser at Closing, or within a reasonable time thereafter, an Owner Policy of Title Insurance (the
"Title Policy") (on a form prescribed by the State Board of Insurance of the State of Texas) issued
through the Title Company, insuring title to the Land in Purchaser in the full amount of the
Purchase Price, and containing only the following exceptions (the "Permitted Exceptions"): (i) the
standard printed exception for taxes for the year of the Closing and subsequent years; (ii) the
standard printed boundary and encroachments exception and exception for shortages in area
(provided, however, that Seller will, at Purchaser's option and expense, cause the Title Company to
delete, to the extent permitted by applicable regulations, the survey exception from the Title Policy
without qualification or condition except as to "any shortages in area"); and (iii) any other matters
that become Permitted Exceptions under the provisions of Paragraph 5.b.
b. Title Commitment and Review of Title. Seller shall furnish to Purchaser,
within fifteen (15) days after the Effective Date of this Contract, a written title commitment to issue
the Owner Policy of Title Insurance (the "Title Commitment"), together with copies of all
instruments and documents referred to in such commitment. If the Title Commitment discloses any
exceptions to Seller's title other than the Permitted Exceptions ("Additional Exceptions"), then
Purchaser shall have until the expiration of five (5) days after receipt of the Title Commitment to
obtain and review any documents or other matters pertaining to the Additional Exceptions and to
deliver written objection to the Title Company and to Seller which lists the Additional Exceptions
that are objectionable to Purchaser (collectively, "Title Objections"). To the extent a written
objection is not delivered to the Title Company and to Seller within such time frame, such Title
Objections shall be deemed to have been waived by Purchaser, and all such Title Objections (other
than those constituting third party liens, security interests or other monetary encumbrances that
would be reflected on Schedule C of the Title Commitment) shall be deemed to be Permitted
Exceptions. Seller shall have the right (including, without limitation, the right to use all or any part
of the Purchase Price for the purpose of discharging and releasing at the Closing any Title
Objections), but not the obligation, to cure or remove any Title Objections in order that the Title
Policy will be issued to Purchaser at the Closing without making exception to the Title Objections.
To the extent, prior to the expiration of the Inspection Period, Seller has not cured any Title
Objections, then, within the Inspection Period, Purchaser shall notify Seller in writing of
Purchaser's election either to waive such Title Objections and accept the Land subject thereto or to
terminate this Contract, in which latter event the Escrow Deposit shall be returned to Purchaser and
neither party shall have any further liability hereunder. In the event Purchaser fails to notify Seller
of its election within the Inspection Period, then Purchaser shall be deemed to have waived such
Title Objections.
6. Closing; Closing Documents.
a. Possession and Closing. Possession of the Land shall be delivered
by Seller to Purchaser at the Closing. "Closing" shall take place at the offices of the Title
Company on or before the expiration of thirty (30) days after the expiration of the Inspection
Period, or at such other date as shall be agreed upon by Seller Purchaser.
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b. Seller's Closing Documents. At the Closing, Seller, at Seller's expense,
shall deliver or cause to be delivered to Purchaser each of the following:
(1) Deed of Conveyance. A duly executed and acknowledged special
warranty deed, in the proper form for recording, containing a description of the Land and
conveying title to the Land to Purchaser, free and clear of any and all liens, reservations,
restrictions, easements, security agreements, pledges and other encumbrances, except the
Permitted Exceptions.
(2) Tax Certificates. Tax certificates shall be available at the Title
Company from appropriate authorities showing that all taxes then due on the Land have
been paid, or amounts sufficient to pay those taxes shall be withheld by the Title Company
from the Purchase Price for that purpose.
(3) Evidence of Authority. Evidence of authority reasonably acceptable
to Purchaser and the Title Company, reflecting that the person who has signed this Contract
on behalf of Seller has been duly authorized to execute this Contract and identifying the
person or persons who are authorized to execute all of Seller's closing documents on
Seller's behalf and showing approval of the sale of the Land to Purchaser under the terms
and provisions of this Contract.
(4) Non -Foreign Certificate. A certificate stating that Seller is not a
"foreign person" as defined in the federal Foreign Investment in Real Property Tax Act of
1980 and the 1984 Tax Reform Act, as amended.
(5) Other Documents. Any other documents required by this Contract to
be delivered by Seller at the Closing or otherwise reasonably necessary to carry out the
terms and conditions hereof, including the Development Agreement described in Paragraph
10 below.
c. Purchaser's Closing Documents. At the Closing, Purchaser, at Purchaser's
expense, shall deliver to Seller the following:
(1) Cash Payment. The cash payment of the Purchase Price and any
additional sums provided for in this Contract, subject to adjustment as set forth below.
(2) Evidence of Authority. Evidence of authority reasonably acceptable
to Seller and the Title Company, reflecting that the person who has signed this Contract on
behalf of Purchaser has been duly authorized to execute this Contract and identifying the
person or persons who are authorized to execute all of Purchaser's closing documents on
Purchaser's behalf and showing approval of the purchase of the Property from Seller under
the terms and provisions of this Contract.
(3) Other Documents. Any other documents or instruments required by
this Contract to be delivered by Purchaser at the Closing or otherwise reasonably necessary
5
to carry out the terms and conditions hereof, including the Development Agreement
described in Paragraph 10 below.
7. Adjustments at Closing. The following prorations and adjustments shall be made at
the Closing and, as the case may be, deducted from or added to the amount Purchaser is required to
pay at the Closing under Paragraph 2.b of this Contract:
a. Taxes. Ad valorem taxes for the year of Closing shall be prorated at the date
of Closing. If the tax rate has not been fixed for that year, the apportionment of taxes shall be upon
the basis of the tax rate for the preceding year applied to the latest assessed valuation. Taxes for the
year of the Closing, and subsequent assessments for prior years due to change in use or ownership,
shall be assumed by Purchaser. If the Land does not constitute a separate tax lot for the year of
Closing, Purchaser shall escrow with the Title Company the amount of any prorated taxes for which
Purchaser receives a credit at Closing plus the estimated taxes on the Land for the balance of the tax
year.
b. Title Insurance and Other Closing Expenses. Except as is otherwise
provided herein, each party shall pay its own customary closing expenses and its own attorney's
fees. Seller shall pay the premium for the Title Policy (excluding endorsements), one-half of the
escrow fee charged by the Title Company and all recording fees (other than for liens created by
Purchaser at Closing). Purchaser shall pay the premium for any Title Policy endorsements, one-half
of the escrow fee charged by the Title Company, and the recording fees for any liens created by
Purchaser at Closing.
8. Remedies Upon Default.
a. Seller's Default. If Seller fails to complete this sale in accordance with the
terms and provisions of this Contract for any reason except Purchaser's default hereunder or the
failure of an express condition to Seller's obligations to be satisfied, Purchaser shall have, as
Purchaser's sole and exclusive remedies against Seller under this Contract, at law or in equity, the
option of either (i) terminating this Contract by giving written notice to Seller at or prior to the
Closing, whereupon the Escrow Deposit shall be returned to Purchaser by the Title Company and
Purchaser and Seller shall have no other or further liability or obligation to each other, except those
obligations that expressly survive the termination of this Contract, or (ii) enforcing specific
performance of this Contract.
b. Purchaser's Default. If Purchaser fails to complete this sale in accordance
with the terms and provisions of this Contract for any reason except Seller's default, Seller shall
have the right, as Seller's sole and exclusive remedy, to terminate this Contract by giving written
notice of such termination to Purchaser and to the Title Company, whereupon the Escrow
Deposit shall be paid to and/or retained by Seller as liquidated damages (it being agreed that it
would be extremely difficult, if not impossible, to calculate the actual damages to Seller), after
which Purchaser and Seller shall have no other or further liability or obligation to each other
hereunder, except those obligations that expressly survive the termination of this Contract.
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c. Waiver; Attorneys' Fees. The requirements imposed upon Seller in this
Contract are for the Purchaser's benefit, and those requirements or other provisions for the
Purchaser's benefit may be waived in writing by Purchaser. Likewise, the requirements imposed
upon Purchaser in this Contract are for the Seller's benefit, and those requirements or other
provisions for the Seller's benefit may be waived in writing by Seller. If it shall be necessary for
either Purchaser or Seller to employ an attorney to enforce its rights pursuant to this Contract (or
defend any such enforcement action), the non -prevailing party shall reimburse the prevailing party
for such party's costs of court and reasonable attorneys' fees.
9. Title Contingency. Purchaser and Seller acknowledge that Seller does not
currently own fee simple title to the Land, and is currently negotiating with a third party for the
purchase of a larger parcel of real property of which the Land is a part. Purchaser's and Seller's
obligations under this Contract are expressly conditioned and contingent upon Seller obtaining title
to the Land. In the event Seller is unable to obtain title to the Land on or before the Closing Date,
either Seller or Purchaser may terminate this Contract by written notice to the other, in which
event the Escrow Deposit shall be returned to Purchaser and neither party shall have any further
obligation to the other, except for any obligations which survive the termination of this Contract.
10. Development Agreement. During the Inspection Period, Seller and Purchaser shall
negotiate in good faith the final form of a development agreement (the "Development Agreement")
covering the Land and any adjacent property owned by Seller or its affiliates (the "Adjacent Land").
The Development Agreement shall contain reference, in part, to the following matters:
(a) Roadway alignment for the extension of public roadways through the Land
and the Adjacent Land;
(b) Dedication of right-of-way for such new roadways by Purchaser, as
contemplated below;
(c) Access alternatives to M-35;
(d) Modification of any floodplain on the Adjacent Land; and
(e) Any other matters related to the intended development of the Land and the
Adjacent Land, including easements for such development.
The parties acknowledge and agree that it is the intent of the parties (i) to mutually agree
on the roadway alignment referred to above, as well as the dam structure supporting such
roadway in flood plain areas, and (ii) for Seller to dedicate a 120 foot right-of-way for such
roadways on the Adjacent Land, such dedication to occur upon execution of the Development
Agreement.
In the event, after using due diligence and negotiating in good faith, the parties are unable
to agree on the form of the Development Agreement prior to the expiration of the Inspection
Period, either Seller or Purchaser may terminate this Agreement upon written notice to the other
prior to the expiration of the Inspection Period, in which event the Escrow Deposit shall be
returned to Purchaser, and neither party shall have any further obligation to the other, except for
those obligations which survive the termination of this Contract.
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11. Condemnation. If, prior to the Closing, all or any part of the Land is condemned or
is the subject of a threat of condemnation, Purchaser shall have the option of either (i) proceeding to
close this transaction and accepting an assignment of any condemnation award or (ii) terminating
this Contract. Purchaser shall exercise either election by the delivery of written notice to Seller
within ten (10) days of the date Seller notifies Purchaser in writing of such condemnation, and, if
Purchaser shall fail to timely make such election, Purchaser shall be deemed to have elected the
option specified at clause (i) hereof. In the event of the termination of this Contract under the
provisions of this paragraph, the Escrow Deposit shall be returned to Purchaser and the parties shall
have no further obligation or liability to one another hereunder (except for those obligations
expressly surviving the termination of this Contract).
12. Real Estate Commissions; Disclosures.
a. Seller and Purchaser represent and warrant to each other that they have dealt
with no broker, finder or similar agent in connection with the transaction provided for in this
Contract. Seller agrees to hold Purchaser harmless from and against any claim made by any person
claiming to have dealt with Seller in connection with this transaction, including reasonable
attorney's fees incurred in the defense of such a claim. Purchaser agrees to hold Seller harmless
from and against any claim made by any person claiming to have dealt with Purchaser in connection
with this transaction, including reasonable attorneys' fees incurred in the defense of such a claim.
b. PURCHASER ACKNOWLEDGES THAT IT HAS BEEN ADVISED
THAT IT SHOULD HAVE AN ABSTRACT COVERING THE PROPERTY EXAMINED BY
AN ATTORNEY OF ITS SELECTION, OR SHOULD BE FURNISHED WITH OR OBTAIN A
POLICY OF TITLE INSURANCE COVERING THE PROPERTY.
13. Notices. Any notices required or permitted to be given under this Contract shall be
in writing and shall be deemed to be given (i) on the first (1st) business day after timely delivery to
a nationally or regionally recognized overnight courier service guaranteeing next business day
delivery, (ii) on the third (3rd) business day after being deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, or (iii) on the day transmitted by
facsimile, provided that the sender retains the written confirmation of the delivery thereof and
delivers a "hard copy" of such notice to the recipient no later than one (1) business day thereafter by
means of delivery in accordance with either clause (i) or (ii) hereof, which in any event shall be
addressed to Seller or Purchaser, as the case may be, at the address or telecopy number indicated on
the signature page hereto, or to a different address or telecopy number as previously given in a
notice to the other party. A copy of any notice given to Seller shall be given at the same time and in
the same manner as the notice to Seller to:
Stephen O. Drenner
Drenner & Golden Stuart Wolff, LT P
301 Congress Avenue, Suite 1200
Austin, Texas 78701
Phone: (512) 404-2207
Fax: (512) 404-2244
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A copy of any notice given to Purchaser shall be given at the same time and in the same manner as
the notice to Purchaser to:
Stephan Sheets
Sheets & Crossfield, P.C.
309 E. Main Street
Round Rock, Texas 78664
Phone: (512) 255-8877
Fax: (512) 255-8986
14. Miscellaneous.
a. Assignment; Binding Effect; Authority. Purchaser may not assign this
Contract to any other person or entity without the prior written consent of Seller, and no assignment
permitted hereunder shall operate to release Purchaser of its liabilities or obligations under this
Contract without the express written consent of Seller. Subject to this restriction on assignment, this
Contract and all of its terms and provisions shall be binding upon and inure to the benefit of Seller,
and the successors and assigns of Seller, and Purchaser, and the successors and assigns of
Purchaser. Seller and Purchaser represent that they are duly organized, validly existing and in good
standing under the laws of the state of their organization, that they have the legal power to enter into
this Contract and to perform all the terms of this Contract, and that the persons signing this Contract
on their behalf are fully authorized to sign for and to bind them.
b. Complete Agreement; Headings; Waiver. This Contract contains the
complete agreement of the parties and cannot be amended or modified except by written agreement
signed by Seller and Purchaser. The paragraph headings herein are for reference purposes only and
are not intended in any way to describe, interpret, define or limit the scope, content or extent of this
Contract or any part of it. If any portion of this Contract is held by a court of proper jurisdiction to
be invalid or inoperative, then so far as is reasonable and possible, the remainder of the Contract
shall be deemed valid and operative, and effect shall be given to the intent manifested by the portion
held invalid or inoperative. The failure by either party to enforce against the other any term or
provisions of this Contract shall not be deemed to be a waiver of that party's right to enforce against
the other party the same or any other term or provision. The terms and provisions of this Contract
shall not merge with, or be extinguished or otherwise affected by, any subsequent conveyance or
instrument between the parties, unless the instrument specifically so states and is signed by both
parties.
c. Governing Law. This Contract and the obligations under this Contract shall
be construed in accordance with, governed by, and shall be subject to, the laws of the State of
Texas. Venue shall be in Williamson County, Texas.
d. Time Periods. Unless otherwise expressly provided herein, all periods for
performance, delivery, review or approval and the like shall be determined on a "calendar" day
basis. If any day for performance, delivery, review or approval shall fall on a Saturday, Sunday or
legal holiday (state or federal) in Round Rock, Williamson County, Texas, the time therefore shall
be extended to the next business day.
9
e. Execution in Counterparts. The Contract can be executed in counterparts,
each of which shall be an original and, upon the delivery to the Title Company of one or more of the
Contracts signed by all parties, together will constitute a fully executed and binding Contract. As
soon as possible, the parties agree to exchange Contracts so that each party will have a fully
executed Contract.
f. Effective Date of Contract. For purposes of this Contract it is agreed that the
Effective Date of this Contract shall be the date on which a fully executed copy of this Contract,
signed by both Seller and Purchaser, is deposited with the Title Company. The receipt of this
Contract issued by the Title Company shall be conclusive evidence of the Effective Date of this
Contract.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
10
IN ;WITNESS WHEREOF, the parties have executed this Contract as of the dates set forth
opposite their respective signatures, but to he effective as of the Effective Date described above.
Date executed by Seller:
ri kL)M j Z- ,2010
SELLER:
Address: 3839 Bee Caves Road
Suite 200
Austin, Texas 78746
Phone: (512) 474-2900
Fax : (512) 474-4547
Date executed by Purchaser:
,2010
Address: City of Round Rock
Attn: Jim Nuse, City Manager
221 E. Main Street
Round Rock, Texas
Phone: (512) 218-5410
Fax: (512) 218-7097
lassour, or assigns
PURCHASER:
CITY OF ROUND ROCK, TEXAS
By:
Name: Alan McGraw, Mayor
TITLE COMPANY RECEIPT
The undersigned, ., hereby acknowledges receipt of a
fully executed copy of this Contract, and agrees to perform the duties of Title Company, including
disbursement of the Escrow Deposit, strictly in accordance with the terms of the Contract.
TITLE COMPANY:
Independence Title Company
By:
Name:
Title:
Date: , 2010
EXHIBIT A
Description of Land
43.0538 acres out of the following:
Lot(s) 1 and 2, Block "A", CYPRESS ADDITION, a subdivision in Williamson County, Texas,
according to the map or plat thereof, recorded in Cabinet N, Slide(s) 266-268 of the Plat records
of Williamson County, Texas,
And being more particularly shown on Exhibit A-1 attached hereto.
EXHIBIT A-1