R-12-10-25-H15 - 10/25/2012 RESOLUTION NO. R-12-10-25-1115
WHEREAS, the City desires to purchase Lot 1, The Commons, located at 901 Round Rock
Avenue, for the RM 620/Round Rock Avenue Railroad Grade Separation Project, and
WHEREAS, Back in Texas, L.P., 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 Back in Texas, L.P., 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 k
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 October, 2012.
`s
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Clerk
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EXHIBIT
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"A"
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CONTRACT FOR SALE OF
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Lot 1, The Commons, 901 Round Rock Avenue
Round Rock, Texas
BACK IN TEXAS, L.P. ("Seller"), and the CITY OF ROUND ROCK, TEXAS
("Purchaser"), agree as follows:
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1. Agreement for Sale of the Property. Subject to the terms and conditions of this
Contract, Seller agrees to sell and convey to Purchaser and Purchaser agrees to purchase the
following described property located in Williamson County, Texas (collectively referred to as
the "Property"): `
a. Land. A tract of land more specifically described in Exhibit A, which is
attached hereto and incorporated herein by reference (the "Land");
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b. Buildings. All improvements and fixtures owned by Seller and located on the
Land, including those known as the The Commons Office/Retail Complex (the "Buildings");
C. Other Property.
(i) Subject to Purchaser's assumption and performance of the obligations
of Landlord, the interest of the lessor or landlord under all leases, tenancies, s
rental, use, occupancy, and concession agreements covering space on the
Land or in the Buildings (hereinafter called the "Leases"), together with all
prepaid rents, security deposits, utility deposits, and other deposits made by
the tenants under the Leases;
(ii) All of Seller's interest in the following to the extent they relate to the
ownership, use, leasing, maintenance, service, or operation of the Land or
Buildings: (i) contracts or agreements such as maintenance, service, or utility
contracts, (ii) warranties, guaranties, indemnities and claims, (iii)
development rights, utility capacity, governmental approvals, licenses and
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permits, and (iv) plans, drawings, specifications, surveys, engineering reports
and environmental reports; and
(iii) All and singular the rights and appurtenances pertaining to any of the
foregoing, including without limitation, the right of the Seller, if any, in and
to adjacent streets, alleys, easements, rights-of-way and rights of ingress and
egress thereto.
2. Purchase Price. The total purchase price for the Property is FOUR MILLION, ONE
HUNDRED FIFTY THOUSAND AND 00/100 Dollars ($4,150,000.00) (the "Purchase Price").
3. Payment of Purchase Price. The total purchase price for the Property shall be paid
by Purchaser to Seller in the following manner:
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a. Escrow Deposit. Within ten (10) business days after Purchaser's and Seller's
execution of this Contract (and as a condition precedent to the effectiveness
of this Contract), the cash amount of Five Thousand and No/100 Dollars
($5,000.00) (the " Escrow Deposit") shall be deposited by Purchaser with
Georgetown Title Company, at its office at 1717 North Mays, Round Rock, A
Texas 78664, Attn: Carol Eubanks (the "Title Company"). The Title
Company shall deposit the Escrow Deposit in one or more interest bearing
accounts with a bank or other financial institution reasonably acceptable to
Purchaser and Seller. Interest earned on the Escrow Deposit shall be deemed
a portion of the Escrow Deposit. The Escrow Deposit shall be paid to Seller
at the Closing (as defined herein) as a part of the payment of the Purchase
Price or, if the Closing does not occur, shall be otherwise disbursed in
accordance with this Contract.
Y Additional Escrow Deposit. Unless otherwise agreed to in writing Purchaser
acknowledges that Seller has no obligation to extend the Closing of this
Contract beyond October 31, 2012 for any reason whatsoever, unless
Purchaser increases the Escrow Deposit to a sum acceptable to Seller by
October 31, 2012
C. Remainder of Purchase Price Due at Closing Together with Reimbursement
of Certain Expenses. Subject to the adjustments under paragraph 11 of this Contract, the
balance of the Purchase Price and the expenses described in the next sentence shall be paid to
Seller in good funds at the Closing by cashier's check or wired funds, which, in either case, will
allow the Title Company to disburse those funds to Seller at the Closing. Purchaser further 1
agrees to reimburse to Seller the sum of$19,474.72 incurred by Seller to provide tenant finish
improvements, a new HVAC system and leasing commissions for Children's Therapy Group. ?
4. Agreement to Continue Operations. Seller agrees that until Closing and delivery
of possession of the Property to Purchaser as provided in this Agreement, Seller will:
a. Perform all obligations arising out of the Leases described herein;
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b. Maintain the Property in good repair and in the same condition, reasonable
wear and tear excepted; and
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C. Continue to operate and manage the Property in a reasonable, diligent and
prudent manner.
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However, Seller will not enter into any additional leases, lease extensions or similar agreements
pertaining to the Property before the Closing without Purchaser's prior consent in writing,
which consent will not be unreasonably withheld. s'
5. Survey. Purchaser may obtain a survey of the property at its cost and expense. f
6. Owner Policy of Title Insurance; Title Commitment; Title Review. 3
a. Seller, at Purchaser's expense, shall furnish to Purchaser at the Closing, or
within a reasonable time thereafter, an Owner Policy of Title Insurance (without endorsements)
(the "Owner Title Policy") (on a form prescribed by the Texas Department of Insurance) issued
through the Title Company, insuring title to the Land and Buildings in Purchaser in the full
amount of the Purchase Price, and containing only the Permitted Exceptions (as defined
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below). Purchaser may, at its expense, obtain any available endorsements to the Owner Title
Policy or may cause the Title Company to delete the "survey exception" from the Owner Title
Policy without qualification or condition, except as to "any shortages in area." Any exceptions
to title that are either accepted or waived by Purchaser as provided in this paragraph 6 are
referred to herein as the "Permitted Exceptions." k'
b. Purchaser shall cause to be prepared an updated written title report or
commitment (the "Title Commitment") to issue the Owner Title Policy, which specifies all t
exceptions to title, including, without limitation, easements, liens, encumbrances, restrictions,
conditions, or covenants affecting the Property, accompanied by complete and legible copies of
all recorded documents (collectively, the "Title Documents") affecting title to the Property and r
referred to in the Title Commitment. If any exceptions appear on the Title Commitment, other
than the standard printed exceptions, or if any encroachments, overlapping of improvements, or
other conditions are shown on the Survey that are not acceptable to Purchaser, Purchaser shall, ?
within ten (10) days following the Effective Date, notify Seller in writing of such fact. To the
extent Purchaser does not make any such objections to title by giving Seller written notice '
thereof within ten (10) days following the Effective Date, Purchaser shall be deemed to have
approved the condition of title as shown in the Title Commitment, Title Documents and Survey
and waived its right to object. In the event Purchaser does make such objections to title, Seller
shall have the right (including without limitation the right to use all or any part of the total
purchase price for the purpose of discharging and releasing at the Closing any objections to
title), but not the obligation, to cure or remove any such objections to title. Notwithstanding the
foregoing, Seller has the absolute obligation to payoff(or bond around in the event of a bona
fide dispute of a non-purchase money lien) and cause to be released of record all liens against
the Property at or prior to the Closing, whether or not Purchaser formally objects to such liens.
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C. In the event Seller fails to cure or remove all of Purchaser's objections to title
within five (5) days prior to the Closing Date (or by the Closing Date if any part of the total
purchase price shall be used by Seller to discharge or release any objections to title at the
Closing), then Purchaser may, as Purchaser's sole and exclusive remedy, either (i) terminate
this contract by written notice thereof to Seller prior to the Closing Date, in which event the
Escrow Deposit shall be returned to Purchaser and the parties shall have no further or other
obligations hereunder (except as provided in paragraph 4 above), or (ii) subject to the last t
sentence of paragraph 6(b) above, waive such objections to title, and in such event such
objections to title shall become Permitted Exceptions hereunder.
7. Leases. Seller warrants that Exhibit B, which is attached to this Agreement and
incorporated by reference, is a complete list of all leases, tenancies, rental agreements, and
concession agreements presently encumbering the Property. Seller further warrants that:
a. No person or other legal entity has title or right to possession of the Property
or any portion of the Property as a lessee, tenant, or concessionaire of Seller, except as shown
on Exhibit B.
b. All the Leases shown on Exhibit B are now in effect. Seller is not aware of
any default in the performance of any of these Leases, Further, no tenant, lessee, or
concessionaire is entitled to any rebate, concession, or other benefit except as set forth in the
Leases referred to in Exhibit B.
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C. The rentals and other sums due or to become due under the Leases referred to
in Exhibit B have not been assigned or encumbered by Seller to anyone other than Viewpoint
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Bank, 1390 West 15th Street, Suite 210, Plano, TX 75075 (Seller's lender) and will not be
further assigned or encumbered by Seller before Closing.
8. Seller's Information. Within ten (10) days after the Effective Date of this Contract,
and following Purchaser's execution of a Confidentiality Agreement in the form attached to
this Contract as Exhibit"C", Seller shall deliver to Purchaser (or make available to Purchaser at
Seller's offices) the following (collectively, "Seller's Information"), or shall certify in writing
that such information does not otherwise exist:
a. Update of any fully executed copies of all Leases, including guaranties, other
than hose leases previously submitted;
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b. All architectural, structural, mechanical, and electrical "as-built" plans and
specifications for the Buildings (including the Survey), if any, in Seller's possession, together
with any copies of the Buildings' permit and Certificate of Occupancy relating to the Property
in Seller's possession;
C. All soil reports, environmental reports, and engineering reports in Seller's
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possession;
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d. A current rent roll including: tenant name, a list of security deposits for each
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tenant under the Leases, expiration date of each lease, whether the rents are current or
delinquent, and the amounts, if any, of prepaid rents for any period subsequent to the Closing
(the "Rent Roll");
e. Copies of all contracts affecting the Property (including, without limitation,
contracts relating to security, maintenance, material repairs, cleaning, etc.);
f. Reports of any capital improvements made to the Property within the last 3
years, and currently proposed;
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g. All tenant files and credit information in Seller's possession;
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h. Report of current and/or pending litigation in Seller's possession;
i. Inventory of personal property in Seller's possession (excluding all office
furniture which is being retained by Seller);
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j. Copies of utility bills for the Property for the last 12 months in Seller's
possession;
k. Notices from governmental authorities regarding non-compliance of the
Property in Seller's possession; and
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1. Copies of ADA, roof, mechanical/electrical or HVAC reports/studies in
Seller's possession.
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m. Copies of all insurance policies covering the Land and Property.
With respect to the foregoing Seller's Information, if any terms, provisions, other matters
shown on the Seller's Information are not acceptable to Purchaser, Purchaser shall, within ten
(10) days following receipt of such Seller's Information, notify Seller in writing of such fact.
To the extent Purchaser does not make any such objections by giving Seller written notice
thereof within ten (10) days following the receipt of such Seller's Information, Purchaser shall
be deemed to have approved same and waived its right to object. In the event Purchaser does
make any such objections, Seller shall have the right (including without limitation the right to
use all or any part of the total purchase price for the purpose of discharging and releasing at the
Closing any objections), but not the obligation,to cure or remove any such objections.
9. Covenants of Seller. Seller covenants and agrees with Purchaser as follows:
a. After the Effective Date and until the Closing Date, Seller will cause the
Property to be maintained and operated in a manner comparable to its existing operation.
b. After the Effective Date, Seller will not extend, renew or amend any Leases
without the prior written approval of Purchaser, which approval will not be unreasonably
withheld.
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C. After the Effective Date, Seller will not, without the prior written consent of
Purchaser, enter into any service, maintenance, or management agreement with respect to the
Property which is not terminable upon thirty (30) days' prior notice after Closing. Any such
agreements which are entered into by Seller that are not approved or deemed to be approved by
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Purchaser shall not be a liability of Purchaser or the Property after the Closing.
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d. From and after the Effective Date, Seller will continue to cause the Property
to be covered by fire and extended coverage casualty insurance in an amount not less than the
full replacement cost thereof.
e. After the Effective Date, Seller will not, without the prior written consent of
Purchaser (which consent will not be unreasonably withheld), consent to any assignment,
sublease, mortgage, or other encumbrance by any tenant of its interest in its Tenant Lease,
except if the terms of the Tenant Lease require Seller to give such consent.
f. From and after the Effective Date, Seller shall not, without the prior written
consent of Purchaser, further assign, transfer, make subject to any lien or encumbrance, or
hypothecate any rents or the right of Seller to any rents due or to become due under the Leases,
or any other rights of Seller under the Leases.
10. Seller's Representations and Warranties. Seller hereby represents and warrants to
Purchaser the following, except as disclosed to the contrary to Purchaser in writing (including
as part of the Seller Information):
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a. The Leases delivered to Purchaser are true, correct, and complete copies
thereof.
b. Seller has received no written notice that the location, construction,
occupancy, operation and use of the Property (including any improvements and equipment
forming any part thereof) violate any applicable law, statute, ordinance, rule, regulation, order,
or determination of any governmental authority.
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C. The Property and Seller are not, to Seller's current actual knowledge,
currently subject to any existing, pending, or threatened investigation or inquiry by any
governmental authority or to any remedial obligations under any law pertaining to the
environment.Seller discloses that in pursuit of a former tenant (Gumbo's) the IRS has made
inquiries about that Tenant's property which includes fixtures foreclosed upon by Landlord.
Seller maintains that it properly foreclosed on the furniture fixtures and equipment of that
tenant and has received no formal communication from the IRS disputing that position.
d. Except for the tenants under Leases, there are no parties in possession of any
portion of the Property as lessees,tenants at sufferance, or trespassers.
e. There are no attachments, executions, assignments for the benefit of
creditors, receiverships, conservatorships or voluntary or involuntary proceedings in
bankruptcy or pursuant to any other debtor relief laws contemplated or pending against Seller
or the Property.
f. At the Closing, Seller agrees to execute an affidavit that there are no known
unpaid bills for labor or materials furnished to Seller in connection with the Property that
would cause a mechanic's or materialmen's lien to be filed on the Property.
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g. There is no right of first refusal, option to purchase, purchase contract or t
other prior right of any party to purchase any portion of the Property.
h. To the actual knowledge of Seller's principal Dana Pearce, with no duty of
further inquiry (i) no portion of the Property contains any Buildings materials containing or
manufactured from asbestos; (ii) the Property and the use and operation of the Property are not
in violation of any Environmental Laws (as defined below); (iii) the Property has never been
used as a sanitary landfill or dump or for the disposal, use, storage or generation of Hazardous
Materials; (iv) and no underground storage tank or tanks are located on or under the Property.
In addition, Seller has not knowingly allowed or permitted the improper use, treatment, storage
or disposal of, Hazardous Materials (as hereinafter defined) in, under or upon the Property
(above or below ground), or any portion thereof. For purposes of this Agreement, "Hazardous
Material" means and includes waste, pollutants or hazardous or toxic substances, including,
without limitation, asbestos, polychlorinated biphenyl compounds, petroleum products and by-
products, and all materials or substances of any kind which are defined as "hazardous
substances" or "toxic substances" in (or for purposes of) the Comprehensive Environmental
Response, Compensation, and Liability Act, The Resources Conservation and Recovery Act,
the Toxic Substances Control ct of 1976, Clean Water Act, Clean Air Act, any so-called
"Superfund" or "Superlien" law, or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards
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of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now
or at any time hereafter in effect(collectively called the "Environmental Laws").
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i. To Seller's knowledge, with no duty of further inquiry, all Buildings
systems, including, without limitation, HVAC system, roofing system, other mechanical
systems, security/Buildings' access system, electrical system, and plumbing system are in good
working order and Seller has no knowledge of any other defects in the Property. f
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j. To the actual knowledge of Seller's principal Dana Pearce, with no duty of
further inquiry, Seller has received no written notice, including, without limitation, complaints
from tenants of the Property, of any failure of the Property to drain properly during periods of
normal rainfall, and Seller has no knowledge of any such condition.
In the event Purchaser has current actual knowledge as of the Closing Date of any
breach of the foregoing representations and warranties or any of Seller's covenants under
Paragraph 8 above and Purchaser proceeds to close the transaction contemplated hereunder,
then Purchaser shall be deemed to have waived and forever released Seller from any and all
claims arising out of such breach. The foregoing representations and warranties shall be
deemed repeated by Seller at the Closing Date, and such representations and warranties and
Seller's covenants under Paragraph 8 above shall survive the Closing for a period of six (6)
months. To the extent Purchaser shall fail to assert a claim under the foregoing representations
and warranties and Seller's covenants under Paragraph 8 above within six months following the
Closing Date, then such claim shall be deemed to be waived and forever released by Purchaser.
11. Closing; Closing Documents.
a. Possession and Closing. Possession of the Property shall be delivered by
Seller to Purchaser at the Closing, subject to the Leases and Permitted Exceptions. The Closing
shall take place at the offices of the Title Company on or before October 31, 2012, unless
Purchaser and Seller agree, in writing to a different date.. Time is of the essence with respect
to the Closing Date and the delivery at the Closing of the Purchase Price. Notwithstanding any
other provision of this Contract Seller shall have no obligation whatsoever to extend the {
Closing date beyond October 31, 2012 and if Seller elects to do so the Escrow Deposit shall be
increased as set forth in Paragraph 3(b) above.
b. Seller's Closing Documents. At the Closing Seller shall deliver or cause to be
delivered to Purchaser each of the following:
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(i) 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 and Buildings to Purchaser, free and clear of any and all liens,
reservations, restrictions, easements, security agreements, pledges and other encumbrances,
except the Permitted Exceptions, to which this sale and the conveyance of the Property shall be
made and accepted subject.
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(ii) Bill of Sale. A bill of sale and assignment of the personal property
(but expressly excluding any office furniture located in the Buildings and owned by Seller),
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Leases, and other property of Seller which Seller agrees herein to assign to Purchaser.
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Purchaser agrees, and the bill of sale and assignment shall provide, that Purchaser shall assume
all of Seller's obligations under the Leases and under contracts pertaining to services provided
to the Property after the date of the Closing, subject to the provisions of Section 9(c), above.
(iii) Letter to Tenants. A letter from Seller to all tenants advising them of
the sale of the Property and that all future rents are to be paid to Purchaser, and that all security
deposits and lease obligations have been assumed by the Purchaser and that the Purchaser is
responsible for their refund. Purchaser covenants and agrees to countersign and deliver copies
of the letters to each tenant, or Seller may, at its option, elect to do so.
(iv) Owner Policy of Title Insurance. The Owner Policy of Title Insurance
(as described in paragraph 6.a above) containing only the Permitted Exceptions.
(v) Other Documents and Items. Any other documents and items
required by this Contract to be delivered by Seller at the Closing, including, without limitation, E
all plans, drawings, specifications, architectural documents, Buildings' permits, certificates of
occupancy, governmental licenses for improvements, properly identified keys, codes, operating
manuals and other such items pertaining to the Property in the actual possession of Seller or
Seller's property manager.
(vi) Leases and Assignments. The original (to the extent available) of all
Leases, and service contracts (which are assumed by Purchaser) which Seller or its agents have {
entered into in connection with the occupancy or operation of the Property which are being
conveyed to Purchaser. In addition, Seller shall deliver to Purchaser a written assignment, in a
form to be approved by Purchaser's attorney, executed and acknowledged by Seller, assigning
to Purchaser all of Seller's rights and title in the Leases.
C. Purchaser's Closing Documents. At the Closing Purchaser, at Purchaser's
expense, shall deliver to Seller the following:
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(i) Payment of Purchase Price. The Purchase Price, less the Escrow
Deposit, in the form required in paragraph 3.b. above.
(ii) Other Documents. Any other documents or instruments required by
this Contract to be delivered by Purchaser at the Closing.
(iii) Assumption and Indemnity Agrement. A written agreement of
assumption of the Leases by Purchaser in a form approved by Seller's attorney,executed and a
acknowledged by Purchaser which provides for the express assumption and promise to perform
the obligations of Landlord under each Lease together with an indemnity and hold harmless
provision in favor of Seller against all claims of any tenant arising from any act or omission of
Landlord after the Closing.
d. Estoppel Certificates. Seller shall obtain and deliver to Purchaser, on or
before five (5) business days prior to Closing, estoppel certificates from all tenants occupying i
the rentable square footage of the Buildings in the form attached hereto as Exhibit D (subject to
reasonably requested revisions by any tenant), (collectively the "Tenant Estoppel Certificates"). t
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Seller shall deliver any Tenant Estoppel Certificates received from Tenants to Purchaser
promptly upon Seller's receipt.
12. 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 r
required to pay at the Closing under paragraph 3.b. above: z
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a. Rents. Purchaser shall receive credit for the pro rata amount of any rents
paid to the Seller by tenants of the Property for periods subsequent to the first day of the month
following the Closing Date. The Seller shall not receive credit for the amount of any
uncollected rents which are owing to the Seller by tenants of the Property for periods prior to
the Closing Date, but the Purchaser shall use reasonable efforts (but Purchaser shall not be
obligated to institute litigation against any tenants) to collect those rents from tenants, for the
account of the Seller, and promptly remit any amounts collected to Seller. Seller waives the
right to sue any tenants for past due amounts owed to Seller after the Closing. Rents collected
by the Purchaser after the Closing shall be applied first to the payment of rents owed by the
tenant making the payment for periods after the Closing.
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b. Taxes Ad valorem taxes for the year of Closing shall be prorated at the
Closing Date and shall be adjusted in cash at the 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 next
preceding year applied to the latest assessed valuation.
C. Security Deposits. Seller, at Seller's option, shall either deliver to Purchaser
at the Closing all refundable security and similar tenant deposits that are then held by Seller, or
an amount equal to those deposits shall be credited against the purchase price for the Property.
d. Utilities and Deposits. Water, gas, electricity, and other bills for the
Property which are not the direct responsibility of tenants shall be prorated as of the Closing
Date, and Purchaser assumes the obligation to pay all utility bills that are prorated at the €
Closing, or that are for services provided after the Closing. Seller and Purchaser agree that in
any instance where the exact amount of a proratable utility bill is not known or cannot be
reasonably ascertained at Closing, the proration will be made on the basis of the best
information then available, and when exact figures are available appropriate adjustments in the
proration will be made. All deposits for utilities or for their purposes that belong to Seller shall
either be purchased by Purchaser and paid for at the Closing or be refunded to Seller, in which
latter event Purchaser shall be solely responsible for any deposits required by utility companies
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e. Title Insurance and Other Closing Expenses. Except as is otherwise
provided herein, Purchaser shall pay all customary closing expenses and the title policy {
premium, and each party shall be responsible for the payment of its own attorney's fees.
13. Remedies Upon Default. Subject to the additional remedial provisions set forth
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elsewhere in this Agreement, if Seller fails to complete this sale in accordance with the terms
and provisions of this Contract for any reason except Purchaser's default, Purchaser shall have,
as Purchaser's only remedies against Seller, the option of (a) terminating this Contract by
giving written notice to Seller at or prior to the Closing, whereupon the Escrow Deposit shall
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be returned to Purchaser by the Title Company, and Purchaser and Seller shall have no other or
further liability or obligation to each other, or (b) enforcing specific performance of the
Contract. 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, as Seller's only
remedies against Purchaser, shall be (a) the option of terminating this Contract by giving
notice to Purchaser and to the Title Company, whereupon the Escrow Deposit shall
immediately be paid to Seller as consideration for the right given to Purchaser in this Contract
to purchase the Property (it being agreed that it would be extremely difficult, if not impossible,
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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, and this Contract shall be deemed to
have been terminated on the date Seller notifies Purchaser of Seller's election of this right to
terminate this Contract, or(b) enforcing specific performance of the Contract.
14. Casual . In the event that any portion of the Buildings (exceeding in the aggregate
20% of the Buildings) are damaged by fire or other casualty prior to the Closing, and cannot be
repaired within 180 days from the date of casualty,Seller shall notify Purchaser and Purchaser
shall have the option either (a) to terminate this Contract by notice given to Seller within ten c
(10) days after Seller gives the notice of the casualty to Purchaser (but only if the right to
terminate exists hereunder), or (b) to close the transaction contemplated by this Contract by
paying Seller the entire Purchase Price for the Property, without compromise thereof, and
receiving all of Seller's rights with respect to recovery for the damage caused by the fire or
casualty under Seller's existing insurance policies, together with an amount equal to any
applicable deductible directly from Seller, as applicable.
15. Notices. Any notices required or permitted to be given under this Contract shall be
in writing and shall be deemed to be given (a) when actually received by that person, or (b)
three (3) days after being deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, addressed to Seller or Purchaser, as the case may be, at
the address indicated herein, or to a different address 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:
Barron& Adler, L.L.P.
Attn: Steve Adler
808 Nueces Street
4
Austin, Texas 78701
512/478-4995
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:
Sheets& Crossfield, P.C.
Attn: Steve Sheets
309 East Main Street
4
Round Rock, Texas 78664
512/255-8877
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16. Title Company as Escrow Agent. The parties hereto by their execution hereof
hereby appoint the Title Company to act as escrow agent in retaining any closing documents
and deposits of funds in accordance with the terms of this Contract. In handling any escrowed
funds, the Title Company shall be governed by the terms contained herein and shall not be
responsible for the validity, sufficiency or enforceability of any of the terms of this Contract.
The Title Company shall not be charged with any notice, fact or information not specifically set
forth herein. The Title Company shall be entitled to rely on any written notice, demand or
document which in good faith is believed to be genuine, and it shall not be required to inquire
as to identity, authority or rights of the undersigned. The Title Company shall not be liable for
any act or omission by or on behalf of the Title Company with respect to this Contract, except
in cases of gross negligence or willful misconduct, provided, however, the Title Company shall
be liable for the funds actually deposited in its possession. The Title Company shall not be
authorized to apply any escrowed funds to any indebtedness of any party hereto or withhold the
disbursement of such funds for reasons except as provided in this Contract.
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17. Miscellaneous.
a. 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.
b. 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, and venue for any disputes hereunder shall be Williamson County, Texas.
C. 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
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have a fully executed contract.
d. 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, s
signed by both Seller and Purchaser, is deposited with the Title Company along with the Initial
Escrow Deposit provided for herein (the "Effective Date'). The Initial Escrow Deposit receipt
issued by the Title Company shall be conclusive evidence of the Effective Date. E
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11.
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e. Construction of Agreement. Seller and Purchaser acknowledge each to the
other that both they and their counsel have reviewed and revised this Contract and that the
normal rule of construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Contract or any amendments or
exhibits to it. a
f. Business Days. If any deadline, date or time for performance of any
obligation hereunder falls on a Saturday, Sunday, legal holiday or day in which banks in
Williamson County, Texas are closed for the normal conduct of business, then such deadline,
date or time for performance shall be automatically extended to the first day which is not a
Saturday, Sunday, legal holiday or day when banks in Williamson County, Texas are closed for
the normal conduct of business.
g. Involuntary Conversion In Lieu of Condemnation. Seller and Purchaser agree
that this transaction constitiutes an involuntary conversion of the Property by sale in lieu of
condemnation by Purchaser. Purchaser agrees to cooperate with Seller's qualifying and closing
this transaction as part of a Section 1033 Exchange under the Internal Revenue Code.
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12.
SELLER:
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BACK IN TEXAS, L.P.
By:B In Texas GP LLC ' general partner
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By: Dana Pearce, President
Date si ned by Seller: 4
12012
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PURCHASER:
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City of Round Rock, Texas q
By:
Alan McGraw
Mayor
Date signed by Purchaser:
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92012
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Receipt for Contract and Earnest Money
I hereby acknowledge that I have received this Contract and Earnest Money in the amount of
$5,000 this day of , 2012, (the "Effective Date").
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Georgetown Title Company
by:
Escrow Agent
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Exhibits:
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Exhibit A-Description of the Land
Exhibit B—List of Leases
Exhibit C- Confidentiality Agreement
Exhibit D—Form of Tenant Estoppel Certificate
13.
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EXHIBIT A
Legal Description of Land
Lot 1, THE COMMONS, a subdivision in Williamson County, Texas, according to
the map or plat thereof, recorded in Cabinet G, Slide 81, of the Plat Records of
Williamson County, Texas. r
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EXHIBIT B
List of Leases
A Fuego Fitness LLC
B300 Laboratory Corporation of America, DBA LabCorp
B302 Zelinda R.Yanez, dba The Yoga Room
B304/306 Wilmot Health Services PLLC, dba Texas Weight Loss Center
C100 Words N Numbers LLC
C101 Jon Chicoine dba Central Texas Health Center
C102 Dr. William Joseph Montreuil, DDS
D French Quarter Round Rock LLC, dba French Quarter
E Round Rock Children's Therapy Center f
F Public Employees Credit Union
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EXHIBIT C
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Confidentiality Protection Covenant
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Confidential Information means any records and other information and copies of work sheets and other
documents, reports and materials obtained by Purchaser from Seller in any format whatsoever including
paper and electronic data.
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Purchaser agrees, that until the Closing under the Contract, Purchaser and Purchaser's agents and
representatives shall:
1. only disclose the Confidential .Information as required by law.
2. assert any and all defenses it has to prevent having to disclose Confidential Information,
(including the ]cases) and including requests under FOIA or the Public Information Act or
otherwise.
3. not make copies of the]eases and they will be returned to Seller if the closing does not occur.
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EXHIBIT D
Form of Tenant Estoppel Certificate
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Re: Lease at Round Rock,Texas
Gentlemen:
The purpose of this certificate is to confirm the current status of matters relating to the Lease described
below. It is for the benefit of the owner or prospective purchaser or mortgagee of the Building in which the Leased
Premises are located.
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1. The undersigned is the Lessee or Tenant under a lease agreement between ,as Lessor
(together with the successors in interest of said Lessor in and to the Building,"Landlord"),and ,as
Tenant,dated ,covering the premises consisting of approximately square feet of space(the
"Leased Premises")in the building located at 901 Round Rock Avenue,in Round Rock,Texas(the"Building").A
copy of the fully executed lease agreement and all amendments or modifications thereto,if any(collectively,the
"Lease"),are attached hereto. There are no other modifications or amendments to the Lease.
2. There are no unfulfilled written or oral promises,representations or warranties by the Landlord. '
3. There are no subleases of the Leased Premises or any portion thereof.
4. The Lease is in good standing and in full force and effect. Landlord is not in default under the
Lease. Tenant agrees to give notice of any Landlord default to any purchaser or lender making written request to
Tenant for the same.
5. Except for rents(if any)which may be due under the Lease for the current month,there are no
rents or other charges which have been prepaid to Landlord under the Lease other than the following:
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6. The amount of security deposit currently posted by Tenant with Landlord is$ in the
form of U cash,or( )an irrevocable,unconditional letter of credit issued by in favor of
as Landlord,which is still valid.
7. Tenant acknowledges that the space being leased consists of rentable square feet,that the
improvements to be constructed by Landlord,if any, in the Leased Premises have been satisfactorily completed,
that the Leased Premises have been accepted by Tenant,that Tenant now occupies the Leased Premises,and that
the commencement date for the term of the Lease was i
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8. There are no rentals or other charges under the Lease which are due and unpaid. Rentals are fully s
paid(if required by the Lease)through the last day of the month in which this Estoppel Certificate has been g
executed.
9. Tenant has no known offsets or credits against rentals or other charges under the Lease except as
expressly provided by the terms of the Lease. Tenant has no known right of recession of the Lease or any defense
to Tenant's future obligations to pay the specified rentals and other charges under the Lease at the times and in
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accordance with the Lease terms.Tenant has not received any concession(rental or otherwise)or similar
compensation not expressed in the Lease. '
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10. Tenant has no options or rights of refusal regarding(i)the purchase of the Building or(ii)the
leasing of the Leased Premises or additional space in the Building,or a right of early termination other than as set
out in the Lease.
11. Tenant acknowledges that this Estoppel Certificate and the statements therein may be i
conclusively relied upon by Landlord and by any prospective purchaser or lien holder of the Leased Premises.
12. This agreement shall be binding upon and shall inure to the benefit of the Landlord,any present
or future mortgagee,any prospective purchaser or master Lessee of the Building,and their successors and assigns.
EXECUTED this day of 1200_
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"TENANT"
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By:
Name:
Title:
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ROCK,TEXAS City Council Agenda Summary Sheet
PURPOSE.PASSION.PROSPERITY.
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Agenda Item No. H15.
Consider a resolution authorizing the Mayor to execute a Contract for Sale of Lot 1, The
Agenda Caption: Commons,901 Round Rock Avenue with Back in Texas, L.P.
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Meeting Date: October 25, 2012
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Department: Transportation
Staff Person making presentation: Gary Hudder t
Transportation Director
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Item Summary:
The RM 620/Round Rock Avenue railroad grade separation project will construct a bridge over the Union Pacific '
Railroad, thus eliminating the conflicts and delays caused by the train on Round Rock Avenue. This real estate s.
contract is for the acquisition of The Commons retail property, which will provide a portion of the right-of-way
necessary for the construction of this project. 1
The total amount of this contract is $4,169,474.72; this sum includes the $4,150,000 purchase price and $19,474.72
for new heating and ventilation equipment which was recently purchased by the seller for the property. ¢'
Cost: $4,169,474.72 r
Source of Funds: Type B Corporation
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Recommended Action: Approval
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CONTRACT FOR SALE OF
Lot 1, The Commons, 901 Round Rock Avenue
Round Rock, Texas
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BACK IN TEXAS, L.P. ("Seller"), and the CITY OF ROUND ROCK, TEXAS
("Purchaser"), agree as follows:
1. Agreement for Sale of the Property. Subject to the terms and conditions of this
Contract, Seller agrees to sell and convey to Purchaser and Purchaser agrees to purchase the
following described property located in Williamson County, Texas (collectively referred to as
the "Pro e "):
a. Land. A tract of land more specifically described in Exhibit A, which is a
attached hereto and incorporated herein by reference (the "Land"); #'
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b. Buildings. All improvements and fixtures owned by Seller and located on the
Land, including those known as the The Commons Office/Retail Complex(the "Buildings");
C. Other Property.
(i) Subject to Purchaser's assumption and performance of the obligations
of Landlord, the interest of the lessor or landlord under all leases, tenancies,
rental, use, occupancy, and concession agreements covering space on the
Land or in the Buildings (hereinafter called the "Leases"), together with all
prepaid rents, security deposits, utility deposits, and other deposits made by
the tenants under the Leases;
(ii) All of Seller's interest in the following to the extent they relate to the
ownership, use, leasing, maintenance, service, or operation of the Land or
Buildings: (i) contracts or agreements such as maintenance, service, or utility
contracts, (ii) warranties, guaranties, indemnities and claims, (iii)
development rights, utility capacity, governmental approvals, licenses and
permits, and (iv) plans, drawings, specifications, surveys, engineering reports
and environmental reports; and
(iii) All and singular the rights and appurtenances pertaining to any of the
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foregoing, including without limitation, the right of the Seller, if any, in and
to adjacent streets, alleys, easements, rights-of-way and rights of ingress and
egress thereto.
2. Purchase Price. The total purchase price for the Property is FOUR MILLION, ONE
HUNDRED FIFTY THOUSAND AND 00/100 Dollars ($4,150,000.00) (the "Purchase Price").
3. Payment of Purchase Price. The total purchase price for the Property shall be paid {
by Purchaser to Seller in the following manner:
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a. Escrow Deposit. Within ten (10) business days after Purchaser's and Seller's
execution of this Contract (and as a condition precedent to the effectiveness
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of this Contract), the cash amount of Five Thousand and No/100 Dollars
($5,000.00) (the " Escrow Deposit") shall be deposited by Purchaser with
Georgetown Title Company, at its office at 1717 North Mays, Round Rock,
Texas 78664, Attn: Carol Eubanks (the "Title Company"). The Title
Company shall deposit the Escrow Deposit in one or more interest bearing
accounts with a bank or other financial institution reasonably acceptable to
Purchaser and Seller. Interest earned on the Escrow Deposit shall be deemed
a portion of the Escrow Deposit. The Escrow Deposit shall be paid to Seller
at the Closing (as defined herein) as a part of the payment of the Purchase
Price or, if the Closing does not occur, shall be otherwise disbursed in
accordance with this Contract.
b. Additional Escrow Deposit. Unless otherwise agreed to in writing Purchaser
acknowledges that Seller has no obligation to extend the Closing of this
Contract beyond October 31, 2012 for M reason whatsoever, unless
Purchaser increases the Escrow Deposit to a sum acceptable to Seller by
October 31, 2012
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C. Remainder of Purchase Price Due at Closing Together with Reimbursement
of Certain Expenses. Subject to the adjustments under paragraph 11 of this Contract, the
balance of the Purchase Price and the expenses described in the next sentence shall be paid to ?
Seller in good funds at the Closing by cashier's check or wired funds, which, in either case, will a
allow the Title Company to disburse those funds to Seller at the Closing. Purchaser further
agrees to reimburse to Seller the sum of$19,474.72 incurred by Seller to provide tenant finish
improvements, a new HVAC system and leasing commissions for Children's Therapy Group.
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4. Agreement to Continue Operations. Seller agrees that until Closing and delivery
of possession of the Property to Purchaser as provided in this Agreement, Seller will:
a. Perform all obligations arising out of the Leases described herein;
b. Maintain the Property in good repair and in the same condition, reasonable
wear and tear excepted; and
C. Continue to operate and manage the Property in a reasonable, diligent and
prudent manner.
However, Seller will not enter into any additional leases, lease extensions or similar agreements
pertaining to the Property before the Closing without Purchaser's prior consent in writing,
which consent will not be unreasonably withheld.
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5. Survey. Purchaser may obtain a survey of the property at its cost and expense.
6. Owner Policy of Title Insurance; Title Commitment; Title Review.
a. Seller, at Purchaser's expense, shall furnish to Purchaser at the Closing, or
within a reasonable time thereafter, an Owner Policy of Title Insurance (without endorsements) }
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(the "Owner Title Policy") (on a form prescribed by the Texas Department of Insurance) issued
through the Title Company, insuring title to the Land and Buildings in Purchaser in the full d
amount of the Purchase Price, and containing only the Permitted Exceptions (as defined
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below). Purchaser may, at its expense, obtain any available endorsements to the Owner Title f.
Policy or may cause the Title Company to delete the "survey exception" from the Owner Title 4
Policy without qualification or condition, except as to "any shortages in area." Any exceptions
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to title that are either accepted or waived by Purchaser as provided in this paragraph 6 are
referred to herein as the "Permitted Exceptions."
b. Purchaser shall cause to be prepared an updated written title report or
commitment (the "Title Commitment") to issue the Owner Title Policy, which specifies all ;
exceptions to title, including, without limitation, easements, liens, encumbrances, restrictions,
conditions, or covenants affecting the Property, accompanied by complete and legible copies of
all recorded documents (collectively, the "Title Documents") affecting title to the Property and
referred to in the Title Commitment. If any exceptions appear on the Title Commitment, other
than the standard printed exceptions, or if any encroachments, overlapping of improvements, or
other conditions are shown on the Survey that are not acceptable to Purchaser, Purchaser shall,
within ten (10) days following the Effective Date, notify Seller in writing of such fact. To the
extent Purchaser does not make any such objections to title by giving Seller written notice
thereof within ten (10) days following the Effective Date, Purchaser shall be deemed to have
approved the condition of title as shown in the Title Commitment, Title Documents and Survey
and waived its right to object. In the event Purchaser does make such objections to title, Seller
shall have the right (including without limitation the right to use all or any part of the total
purchase price for the purpose of discharging and releasing at the Closing any objections to
title), but not the obligation, to cure or remove any such objections to title. Notwithstanding the
foregoing, Seller has the absolute obligation to payoff(or bond around in the event of a bona
fide dispute of a non-purchase money lien) and cause to be released of record all liens against
the Property at or prior to the Closing, whether or not Purchaser formally objects to such liens.
C. In the event Seller fails to cure or remove all of Purchaser's objections to title
within five (5) days prior to the Closing Date (or by the Closing Date if any part of the total
purchase price shall be used by Seller to discharge or release any objections to title at the
Closing), then Purchaser may, as Purchaser's sole and exclusive remedy, either (i) terminate
this contract by written notice thereof to Seller prior to the Closing Date, in which event the
Escrow Deposit shall be returned to Purchaser and the parties shall have no further or other
obligations hereunder (except as provided in paragraph 4 above), or (ii) subject to the last
sentence of paragraph 6(b) above, waive such objections to title, and in such event such
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objections to title shall become Permitted Exceptions hereunder.
7. Leases. Seller warrants that Exhibit B, which is attached to this Agreement and
incorporated by reference, is a complete list of all leases, tenancies, rental agreements, and
concession agreements presently encumbering the Property. Seller further warrants that:
a. No person or other legal entity has title or right to possession of the Property
or any portion of the Property as a lessee, tenant, or concessionaire of Seller, except as shown
on Exhibit B.
b. All the Leases shown on Exhibit B are now in effect. Seller is not aware of
any default in the performance of any of these Leases, Further, no tenant, lessee, or
concessionaire is entitled to any rebate, concession, or other benefit except as set forth in the
Leases referred to in Exhibit B.
3.
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C. The rentals and other sums due or to become due under the Leases referred to x
in Exhibit B have not been assigned or encumbered by Seller to anyone other than Viewpoint '
Bank, 1390 West 151h Street, Suite 210, Plano, TX 75075 (Seller's lender) and will not be
further assigned or encumbered by Seller before Closing.
8. Seller's Information. Within ten (10) days after the Effective Date of this Contract,
and following Purchaser's execution of a Confidentiality Agreement in the form attached to
this Contract as Exhibit"C", Seller shall deliver to Purchaser(or make available to Purchaser at
Seller's offices) the following (collectively, "Seller's Information"), or shall certify in writing
that such information does not otherwise exist:
a. Update of any fully executed copies of all Leases, including guaranties, other
than hose leases previously submitted;
b. All architectural, structural, mechanical, and electrical "as-built" plans and
specifications for the Buildings (including the Survey), if any, in Seller's possession, together
with any copies of the Buildings' permit and Certificate of Occupancy relating to the Property
in Seller's possession;
C. All soil reports, environmental reports, and engineering reports in Seller's
possession;
d. A current rent roll including: tenant name, a list of security deposits for each
tenant under the Leases, expiration date of each lease, whether the rents are current or
delinquent, and the amounts, if any, of prepaid rents for any period subsequent to the Closing
(the "Rent Roll");
e. Copies of all contracts affecting the Property (including, without limitation,
contracts relating to security, maintenance, material repairs, cleaning, etc.); '
f. Reports of any capital improvements made to the Property within the last 3
years, and currently proposed;
g. All tenant files and credit information in Seller's possession;
h. Report of current and/or pending litigation in Seller's possession; f
i. Inventory of personal property in Seller's possession (excluding all office
furniture which is being retained by Seller);
j. Copies of utility bills for the Property for the last 12 months in Seller's
possession;
k. Notices from governmental authorities regarding non-compliance of the
Property in Seller's possession; and
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1. Copies of ADA, roof, mechanical/electrical or HVAC reports/studies in
Seller's possession. i
m. Copies of all insurance policies covering the Land and Property.
With respect to the foregoing Seller's Information, if any terms, provisions, other matters
shown on the Seller's Information are not acceptable to Purchaser, Purchaser shall, within ten
(10) days following receipt of such Seller's Information, notify Seller in writing of such fact.
To the extent Purchaser does not make any such objections by giving Seller written notice
thereof within ten (10) days following the receipt of such Seller's Information, Purchaser shall
be deemed to have approved same and waived its right to object. In the event Purchaser does
make any such objections, Seller shall have the right (including without limitation the right to
use all or anart of the total purchase rice for the purpose of discharging and releasin at the
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Closing any objections), but not the obligation, to cure or remove any such objections.
9. Covenants of Seller. Seller covenants and agrees with Purchaser as follows:
a. After the Effective Date and until the Closing Date, Seller will cause the
Property to be maintained and operated in a manner comparable to its existing operation. X
b. After the Effective Date, Seller will not extend, renew or amend any Leases
without the prior written approval of Purchaser, which approval will not be unreasonably
withheld.
C. After the Effective Date, Seller will not, without the prior written consent of
Purchaser, enter into any service, maintenance, or management agreement with respect to the
Property which is not terminable upon thirty (30) days' prior notice after Closing. Any such t
agreements which are entered into by Seller that are not approved or deemed to be approved by
Purchaser shall not be a liability of Purchaser or the Property after the Closing.
d. From and after the Effective Date, Seller will continue to cause the Property
to be covered by fire and extended coverage casualty insurance in an amount not less than the
full replacement cost thereof.
e. After the Effective Date, Seller will not, without the prior written consent of
Purchaser (which consent will not be unreasonably withheld), consent to any assignment,
sublease, mortgage, or other encumbrance by any tenant of its interest in its Tenant Lease,
except if the terms of the Tenant Lease require Seller to give such consent.
f. From and after the Effective Date, Seller shall not, without the prior written
consent of Purchaser, further assign, transfer, make subject to any lien or encumbrance, or
hypothecate any rents or the right of Seller to any rents due or to become due under the Leases,
or any other rights of Seller under the Leases.
10. Seller's Representations and Warranties. Seller hereby represents and warrants to
Purchaser the following, except as disclosed to the contrary to Purchaser in writing (including
as part of the Seller Information):
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a. The Leases delivered to Purchaser are true, correct, and complete copies
thereof
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b. Seller has received no written notice that the location, construction,
occupancy, operation and use of the Property (including any improvements and equipment
forming any part thereof) violate any applicable law, statute, ordinance, rule, regulation, order,
or determination of any governmental authority.
C. The Property and Seller are not, to Seller's current actual knowledge,
currently subject to any existing, pending, or threatened investigation or inquiry by any
governmental authority or to any remedial obligations under any law pertaining to the
environment.Seller discloses that in pursuit of a former tenant (Gumbo's) the IRS has made
inquiries about that Tenant's property which includes fixtures foreclosed upon by Landlord. x
Seller maintains that it properly foreclosed on the furniture fixtures and equipment of that
tenant and has received no formal communication from the IRS disputing that position.
d. Except for the tenants under Leases, there are no parties in possession of any
portion of the Property as lessees,tenants at sufferance, or trespassers.
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e. There are no attachments, executions, assignments for the benefit of
creditors, receiverships, conservatorships or voluntary or involuntary proceedings in
bankruptcy or pursuant to any other debtor relief laws contemplated or pending against Seller
or the Property.
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f. At the Closing, Seller agrees to execute an affidavit that there are no known
unpaid bills for labor or materials furnished to Seller in connection with the Property that
would cause a mechanic's or materialmen's lien to be filed on the Property.
g. There is no right of first refusal, option to purchase, purchase contract or
other prior right of any party to purchase any portion of the Property.
h. To the actual knowledge of Seller's principal Dana Pearce, with no duty of
further inquiry (i) no portion of the Property contains any Buildings materials containing or
manufactured from asbestos; (ii) the Property and the use and operation of the Property are not
in violation of any Environmental Laws (as defined below); (iii) the Property has never been
used as a sanitary landfill or dump or for the disposal, use, storage or generation of Hazardous
Materials; (iv) and no underground storage tank or tanks are located on or under the Property.
In addition, Seller has not knowingly allowed or permitted the improper use, treatment, storage
or disposal of, Hazardous Materials (as hereinafter defined) in, under or upon the Property
(above or below ground), or any portion thereof. For purposes of this Agreement, "Hazardous
Material" means and includes waste, pollutants or hazardous or toxic substances, including,
without limitation, asbestos, polychlorinated biphenyl compounds, petroleum products and by-
products, and all materials or substances of any kind which are defined as "hazardous
substances" or "toxic substances" in (or for purposes o� the Comprehensive Environmental
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Response, Compensation, and Liability Act, The Resources Conservation and Recovery Act, g
the Toxic Substances Control ct of 1976, Clean Water Act, Clean Air Act, any so-called
"Superfund" or "Superlien" law, or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards
6.
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of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now {
or at any time hereafter in effect(collectively called the "Environmental Laws").
i. To Seller's knowledge, with no duty of further inquiry, all Buildings
systems, including, without limitation, HVAC system, roofing system, other mechanical
systems, security/Buildings' access system, electrical system, and plumbing system are in good
working order and Seller has no knowledge of any other defects in the Property.
j. To the actual knowledge of Seller's principal Dana Pearce, with no duty of
further inquiry, Seller has received no written notice, including, without limitation, complaints
from tenants of the Property, of any failure of the Property to drain properly during periods of
normal rainfall, and Seller has no knowledge of any such condition.
In the event Purchaser has current actual knowledge as of the Closing Date of any s
breach of the foregoing representations and warranties or any of Seller's covenants under
Paragraph 8 above and Purchaser proceeds to close the transaction contemplated hereunder,
then Purchaser shall be deemed to have waived and forever released Seller from any and all
claims arising out of such breach. The foregoing representations and warranties shall be
deemed repeated by Seller at the Closing Date, and such representations and warranties and
Seller's covenants under Paragraph 8 above shall survive the Closing for a period of six (6)
months. To the extent Purchaser shall fail to assert a claim under the foregoing representations
and warranties and Seller's covenants under Paragraph 8 above within six months following the
Closing Date, then such claim shall be deemed to be waived and forever released by Purchaser.
11. Closing; Closing Documents.
a. Possession and Closing. Possession of the Property shall be delivered by
Seller to Purchaser at the Closing, subject to the Leases and Permitted Exceptions. The Closing
shall take place at the offices of the Title Company on or before October 31, 2012, unless
Purchaser and Seller agree, in writing to a different date.. Time is of the essence with respect
to the Closing Date and the delivery at the Closing of the Purchase Price. Notwithstanding any
other provision of this Contract Seller shall have no obligation whatsoever to extend the
Closing date beyond October 31, 2012 and if Seller elects to do so the Escrow Deposit shall be
increased as set forth in Paragraph 3(b) above.
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b. Seller's Closing Documents. At the Closing Seller shall deliver or cause to be
delivered to Purchaser each of the following:
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(i) 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 and Buildings to Purchaser, free and clear of any and all liens,
reservations, restrictions, easements, security agreements, pledges and other encumbrances,
except the Permitted Exceptions, to which this sale and the conveyance of the Property shall be
made and accepted subject.
(ii) Bill of Sale. A bill of sale and assignment of the personal property
(but expressly excluding any office furniture located in the Buildings and owned by Seller),
Leases, and other property of Seller which Seller agrees herein to assign to Purchaser.
7.
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Purchaser agrees, and the bill of sale and assignment shall provide, that Purchaser shall assume
all of Seller's obligations under the Leases and under contracts pertaining to services provided
to the Property after the date of the Closing, subject to the provisions of Section 9(c), above.
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(iii) Letter to Tenants. A letter from Seller to all tenants advising them of
the sale of the Property and that all future rents are to be paid to Purchaser, and that all security
deposits and lease obligations have been assumed by the Purchaser and that the Purchaser is
responsible for their refund. Purchaser covenants and agrees to countersign and deliver copies
of the letters to each tenant, or Seller may, at its option, elect to do so.
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(iv) Owner Policy of Title Insurance. The Owner Policy of Title Insurance
(as described in paragraph 6.a above) containing only the Permitted Exceptions.
(v) Other Documents and Items. Any other documents and items
required by this Contract to be delivered by Seller at the Closing, including, without limitation,
all plans, drawings, specifications, architectural documents, Buildings' permits, certificates of
occupancy, governmental licenses for improvements, properly identified keys, codes, operating
manuals and other such items pertaining to the Property in the actual possession of Seller or i
Seller's property manager.
vi Leases and Assignments. The original to the extent available of all
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Leases, and service contracts (which are assumed by Purchaser) which Seller or its agents have
entered into in connection with the occupancy or operation of the Property which are being
conveyed to Purchaser. In addition, Seller shall deliver to Purchaser a written assignment, in a
form to be approved by Purchaser's attorney, executed and acknowledged by Seller, assigning
to Purchaser all of Seller's rights and title in the Leases.
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C. Purchaser's Closing Documents. At the Closing Purchaser, at Purchaser's
expense, shall deliver to Seller the following:
(i) Payment of Purchase Price. The Purchase Price, less the Escrow
Deposit, in the form required in paragraph 3.b. above.
(ii) Other Documents. Any other documents or instruments required by
this Contract to be delivered by Purchaser at the Closing.
(iii) Assumption and Indemnity Agrement. A written agreement of
ed and
assumption of the Leases by Purchaser in a form approved by Seller's attorney,execut
acknowledged by Purchaser which provides for the express assumption and promise to perform
the obligations of Landlord under each Lease together with an indemnity and hold harmless
provision in favor of Seller against all claims of any tenant arising from any act or omission of
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Landlord after the Closing.
d. Estoppel Certificates. Seller shall obtain and deliver to Purchaser, on or
before five (5) business days prior to Closing, estoppel certificates from all tenants occupying k
the rentable square footage of the Buildings in the form attached hereto as Exhibit D (subject to
reasonably requested revisions by any tenant), (collectively the "Tenant Estoppel Certificates").
8.
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Seller shall deliver any Tenant Estoppel Certificates received from Tenants to Purchaser {
promptly upon Seller's receipt.
12. 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 3.b. above:
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a. Rents. Purchaser shall receive credit for the pro rata amount of any rents
paid to the Seller by tenants of the Property for periods subsequent to the first day of the month
following the Closing Date. The Seller shall not receive credit for the amount of any
uncollected rents which are owing to the Seller by tenants of the Property for periods prior to
the Closing Date, but the Purchaser shall use reasonable efforts (but Purchaser shall not be
obligated to institute litigation against any tenants) to collect those rents from tenants, for the
account of the Seller, and promptly remit any amounts collected to Seller. Seller waives the
right to sue any tenants for past due amounts owed to Seller after the Closing. Rents collected
by the Purchaser after the Closing shall be applied first to the payment of rents owed by the
tenant making the payment for periods after the Closing.
b. Taxes Ad valorem taxes for the year of Closing shall be prorated at the
Closing Date and shall be adjusted in cash at the 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 next
preceding year applied to the latest assessed valuation.
C. Security Deposits. Seller, at Seller's option, shall either deliver to Purchaser
at the Closing all refundable security and similar tenant deposits that are then held by Seller, or
an amount equal to those deposits shall be credited against the purchase price for the Property.
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d. Utilities and Deposits. Water, gas, electricity, and other bills for the
Property which are not the direct responsibility of tenants shall be prorated as of the Closing
Date, and Purchaser assumes the obligation to pay all utility bills that are prorated at the
Closing, or that are for services provided after the Closing. Seller and Purchaser agree that in
any instance where the exact amount of a proratable utility bill is not known or cannot be
reasonably ascertained at Closing, the proration will be made on the basis of the best
information then available, and when exact figures are available appropriate adjustments in the
proration will be made. All deposits for utilities or for their purposes that belong to Seller shall
either be purchased by Purchaser and paid for at the Closing or be refunded to Seller, in which
latter event Purchaser shall be solely responsible for any deposits required by utility companies
for the Property.
e. Title Insurance and Other Closing Expenses. Except as is otherwise
provided herein, Purchaser shall pay all customary closing expenses and the title policy
premium, and each party shall be responsible for the payment of its own attorney's fees.
13. Remedies Upon Default. Subject to the additional remedial provisions set forth
elsewhere in this Agreement, if Seller fails to complete this sale in accordance with the terms
and provisions of this Contract for any reason except Purchaser's default, Purchaser shall have, 3`
as Purchaser's only remedies against Seller, the option of (a) terminating this Contract by
giving written notice to Seller at or prior to the Closing, whereupon the Escrow Deposit shall
9.
be returned to Purchaser by the Title Company, and Purchaser and Seller shall have no other or
further liability or obligation to each other, or (b) enforcing specific performance of the
Contract. 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, as Seller's only
remedies against Purchaser, shall be (a) the option of terminating this Contract by giving
notice to Purchaser and to the Title Company, whereupon the Escrow Deposit shall
immediately be paid to Seller as consideration for the right given to Purchaser in this Contract
to purchase the Property (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, and this Contract shall be deemed to
have been terminated on the date Seller notifies Purchaser of Seller's election of this right to
terminate this Contract, or(b) enforcing specific performance of the Contract.
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14. Casual . In the event that any portion of the Buildings (exceeding in the aggregate
20% of the Buildings) are damaged by fire or other casualty prior to the Closing, and cannot be
repaired within 180 days from the date of casualty,Seller shall notify Purchaser and Purchaser
shall have the option either (a) to terminate this Contract by notice given to Seller within ten
(10) days after Seller gives the notice of the casualty to Purchaser (but only if the right to
terminate exists hereunder), or (b) to close the transaction contemplated by this Contract by
paying Seller the entire Purchase Price for the Property, without compromise thereof, and
receiving all of Seller's rights with respect to recovery for the damage caused by the fire or
casualty under Seller's existing insurance policies, together with an amount equal to any ;
applicable deductible directly from Seller, as applicable.
15. Notices. Any notices required or permitted to be given under this Contract shall be
in writing and shall be deemed to be given (a) when actually received by that person, or (b)
three (3) days after being deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, addressed to Seller or Purchaser, as the case may be, at i
the address indicated herein, or to a different address 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:
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Barron& Adler, L.L.P.
A:
Attn: Steve Adler
808 Nueces Street
Austin, Texas 78701
512/478-4995
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:
Sheets & Crossfield, P.C.
Attn: Steve Sheets
309 East Main Street
Round Rock, Texas 78664
512/255-8877
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16. Title Company as Escrow Agent. The parties hereto by their execution hereof
hereby appoint the Title Company to act as escrow agent in retaining any closing documents
and deposits of funds in accordance with the terms of this Contract. In handling any escrowed t
funds, the Title Company shall be governed by the terms contained herein and shall not be
responsible for the validity, sufficiency or enforceability of any of the terms of this Contract.
The Title Company shall not be charged with any notice, fact or information not specifically set
forth herein. The Title Company shall be entitled to rely on any written notice, demand or
document which in good faith is believed to be genuine, and it shall not be required to inquire
as to identity, authority or rights of the undersigned. The Title Company shall not be liable for
any act or omission by or on behalf of the Title Company with respect to this Contract, except
in cases of gross negligence or willful misconduct, provided, however, the Title Company shall
be liable for the funds actually deposited in its possession. The Title Company shall not be
authorized to apply any escrowed funds to any indebtedness of any party hereto or withhold the
disbursement of such funds for reasons except as provided in this Contract. '
17. Miscellaneous.
a. 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
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provision. The terms and provisions of this Contract shall not merge with, or be extinguished or i
otherwise affected by, any subsequent conveyance or instrument between the parties, unless the
instrument specifically so states and is signed by both parties.
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b. 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, and venue for any disputes hereunder shall be Williamson County, Texas.
C. 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 parry will i
have a fully executed contract.
d. 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 along with the Initial
Escrow Deposit provided for herein (the `Effective Date'). The Initial Escrow Deposit receipt
issued by the Title Company shall be conclusive evidence of the Effective Date. g
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e. Construction of Agreement. Seller and Purchaser acknowledge each to the F
other that both they and their counsel have reviewed and revised this Contract and that the
normal rule of construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Contract or any amendments or
exhibits to it.
f. Business Days. If andeadline date or time for
y performance of any
obligation hereunder falls on a Saturday, Sunday, legal holiday or day in which banks in
Williamson County, Texas are closed for the normal conduct of business, then such deadline, 3
date or time for performance shall be automatically extended to the first day which is not a
Saturday, Sunday, legal holiday or day when banks in Williamson County, Texas are closed for
the normal conduct of business.
g. Involuntary Conversion In Lieu of Condemnation. Seller and Purchaser agree
that this transaction constitiutes an involuntary conversion of the Property by sale in lieu of
condemnation by Purchaser. Purchaser agrees to cooperate with Seller's qualifying and closing
this transaction as part of a Section 1033 Exchange under the Internal Revenue Code.
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SELLER:
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BACK IN TEXAS, L.P.
By:Back In ZesP LLC its eral partner
By: Dana Pearce, President
Date signed b Seller: E
, 2012
PURCHASER:
City of d/Rock, Te as
By:_
Alan McGraw
Mayor
Date signed by Purchaser:
�IvGCL , 2012
Receipt for Contract and Earnest Money
I hereby acknowledge that I have received this Contract and Earnest Money in the amount of
$5,000 this day of , 2012, (the "Effective Date").
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Georgetown Title Company
by:
Escrow Agent
Exhibits:
Exhibit A - Description of the Land
Exhibit B—List of Leases
Exhibit C- Confidentiality Agreement
Exhibit D—Form of Tenant Estoppel Certificate
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EXHIBIT A
Legal Description of Land
Lot 1, THE COMMONS, a subdivision in Williamson County, Texas, according to
the map or plat thereof, recorded in Cabinet G, Slide 81, of the Plat Records of
Williamson County, Texas.
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EXHIBIT B f
List of Leases
A Fuego Fitness LLC
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B300 Laboratory Corporation of America, DBA LabCorp
B302 Zelinda R.Yanez, dba The Yoga Room
B304/306 Wilmot Health Services PLLC, dba Texas Weight Loss Center
C100 Words N Numbers LLC 4
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C101 Jon Chicoine dba Central Texas Health Center
C102 Dr. William Joseph Montreuil, DDS
D French Quarter Round Rock LLC, dba French Quarter
E Round Rock Children's Therapy Center
F Public Employees Credit Union
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15.
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EXHIBIT C
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Confidentiality Protection Covenant
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Confidential Information means any records and other information and copies of work sheets and other
documents, reports and materials obtained by Purchaser from Seller in any format whatsoever including
paper and electronic data. fr
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Purchaser agrees, that until the Closing under the Contract, Purchaser and Purchaser's agents and
representatives shall:
1. only disclose the Confidential Information as required by law.
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2. assert any and all defenses it has to prevent having to disclose Confidential Information,
(including the leases) and including requests under FOIA or the Public Information Act or
otherwise. 4
3. not make copies of the leases and they will be returned to Seller if the closing does not occur.
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EXHIBIT D
Form of Tenant Estoppel Certificate t
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Re: Lease at Round Rock,Texas
Gentlemen:
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The purpose of this certificate is to confirm the current status of matters relating to the Lease described
below.It is for the benefit of the owner or prospective purchaser or mortgagee of the Building in which the Leased
Premises are located.
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1. The undersigned is the Lessee or Tenant under a lease agreement between ,as Lessor
(together with the successors in interest of said Lessor in and to the Building,"Landlord"),and as
Tenant,dated ,covering the premises consisting of approximately square feet of space(the
"Leased Premises")in the building located at 901 Round Rock Avenue,in Round Rock,Texas(the"Building").A
copy of the fully executed lease agreement and all amendments or modifications thereto,if any(collectively,the
"Lease"),are attached hereto. There are no other modifications or amendments to the Lease.
2. There are no unfulfilled written or oral promises,representations or warranties by the Landlord.
3. There are no subleases of the Leased Premises or any portion thereof. .
4. The Lease is in good standing and in full force and effect.Landlord is not in default under the x
Lease.Tenant agrees to give notice of any Landlord default to any purchaser or lender making written request to
Tenant for the same. ,
5. Except for rents(if any)which may be due under the Lease for the current month,there are no
rents or other charges which have been prepaid to Landlord under the Lease other than the following:
6. The amount of security deposit currently posted by Tenant with Landlord is$ in the f,
form of( _)cash,or(_)an irrevocable,unconditional letter of credit issued by in favor of
as Landlord,which is still valid.
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7. Tenant acknowledges that the space being leased consists of rentable square feet,that the
improvements to be constructed by Landlord,if any,in the Leased Premises have been satisfactorily completed,
that the Leased Premises have been accepted by Tenant,that Tenant now occupies the Leased Premises,and that i
the commencement date for the term of the Lease was
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8. There are no rentals or other charges under the Lease which are due and unpaid. Rentals are fully
paid(if required by the Lease)through the last day of the month in which this Estoppel Certificate has been
executed.
9. Tenant has no known offsets or credits against rentals or other charges under the Lease except as
expressly provided by the terms of the Lease.Tenant has no known right of recession of the Lease or any defense
to Tenant's future obligations to pay the specified rentals and other charges under the Lease at the times and in
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accordance with the Lease terms.Tenant has not received any concession(rental or otherwise)or similar
compensation not expressed in the Lease. `.
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10. Tenant has no options or rights of refusal regarding(i)the purchase of the Building or(ii)the
leasing of the Leased Premises or additional space in the Building,or a right of early termination other than as set z,
out in the Lease.
11. Tenant acknowledges that this Estoppel Certificate and the statements therein may be
conclusively relied upon by Landlord and by any prospective purchaser or lien holder of the Leased Premises.
12. This agreement shall be binding upon and shall inure to the benefit of the Landlord,any present
or future mortgagee,any prospective purchaser or master Lessee of the Building,and their successors and assigns.
EXECUTED this day of ,200
"TENANT"
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By:
Name:
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