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R-00-03-23-13B2 - 3/23/2000RESOLUTION NO. R- 00- 03- 23 -13B2 WHEREAS, State Highway 45 is currently being designed along the current route of Louis Henna Blvd. in the City of Round Rock ( "City ", and WHEREAS, additional right -of -way will be necessary for the expansion and improvement of SH 45, and WHEREAS, ERG Round Rock, Ltd., a Texas limited partnership ( "ERG ") owns certain real property along Louis Henna Blvd., a portion of which will be necessary for the SH 45 expansion and improvement, and WHEREAS, an Option Agreement ( "Agreement ") has been prepared whereby ERG grants the City an option to purchase approximately 1.325 acres for right -of -way purposes, and WHEREAS, the City Council wishes to approve such Option Agreement, 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 an Option Agreement with ERG Round Rock, Ltd. for right -of -way purposes, a copy of said agreement being attached hereto 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 K:\ wP DOcs \R,soLU'II \Roosasa3.WPO /s1s 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, and the Act. RESOLVED this 23rd day of March, 2000. ATTEST: 1 101 aLAEAL -L It E LAND, City Secretary 2 RT A. STLUKA, Mayor City of Round Rock, Texas THE STATE OF TEXAS COUNTY OF WILLIAMSON This Option Agreement ( "Agreement ") is entered into on the date last herein written (the "Effective Date ") between ERG Round Rock Ltd, a Texas limited partnership ( "Seller ") whose address is 100 Congress, Suite 1310, Austin, Texas 78701, and the City of Round Rock, Texas ("Purchaser ") whose address is 221 East Main Street, Round Rock, Texas 78664, and is as follows: 77007.4/031700 2.01 Purchase Price. (a) OPTION AGREEMENT ARTICLE I OPTION 1.01 The Property. Seller, for the consideration to be paid to Seller as provided hereinbelow and upon exercise of the option hereinafter granted, hereby grants and sells unto Purchaser the right and option to purchase on the terms and conditions hereinafter set forth, that certain tract of real property consisting of approximately 1.325 acres, more or less, which is shown as the cross - hatched area on Exhibit "A" attached hereto and incorporated herein by reference, together with all improvements thereon, if any (the "Property") for right -of -way purposes only. 1.02 Option Consideration and Option Period. Contemporaneously with the execution of this Agreement, Purchaser has paid to Seller the sum of Ten and No /100 Dollars ($10.00) as consideration for execution of this Agreement. For and in consideration of such payment, Seller agrees that Purchaser may exercise Purchaser's option hereunder at any time on or before the date which is three (3) years after the Effective Date of this Agreement (the "Option Period "). 1.03 Exercise of Option. The option hereunder may be exercised at any time on or before the last day of the Option Period by Purchaser forwarding to Seller at the address set forth hereinabove written notice of Purchaser's election to exercise such option. If Purchaser fails to exercise this option within the Option Period, this option will automatically terminate. In such event, upon request by Seller, Purchaser will execute a release of this option. ARTICLE II PURCHASE PRICE Subject to adjustment pursuant to Section 2.01(b) below, the base purchase price of the Property is $357,212.52 (the `Base Purchase Price "). (b) In the event Purchaser exercises its option on or after the date which is two (2) years from the date hereof, the purchase price of the Property shall be the Base Purchase Price plus the following components (referred to herein as the "Adjustment "): (i) The sum of all ad valorem taxes assessed against the Property for the period from the Effective Date of this Agreement to the Closing Date; and (ii) Interest determined by multiplying the Base Purchase Price by 9% per annum measured from the Effective Date of this Agreement until the Closing Date. Price ") The Base Purchase Price plus the Adjustment, if applicable, is referred to herein as the "Purchase 2.02 Payment of Purchase Price. The Purchase Price shall be payable in readily available funds at Closing. ARTICLE III CLOSING 3.01 Closing Date. In the event Purchaser properly exercises Purchasers option hereunder, the closing of the sale and purchase of the Property shall occur on or before sixty (60) days after the date on which the option is exercised. The closing of this transaction is herein called "Closing ", and the date for Closing is herein called the "Closing Date ". 3.02 Seller's Closing Obligations. Seller will, at Seller's sole cost and expense: (i) execute and deliver a special warranty deed in the form of Exhibit "B" attached hereto and incorporated herein by reference (the "Deed "); (ii) deliver to Purchaser physical possession of the Property; (iii) deliver evidence of Seller's authority to act hereunder m form reasonably satisfactory to Purchaser and the Title Company; (iv) execute and deliver to Purchaser a "non- foreign" certificate sufficient to establish that withholding of tax is not required in connection with this transaction; and (v) such other documents as the Title Company may reasonably request to consummate Closing. The Property will be conveyed to Purchaser, and Purchaser agrees to accept the Property, in its "AS IS" and "WITH ALL FAULTS" condition. 3.03 Purchaser's Closing Obligations. At the Closing, Purchaser shall (i) deliver the Purchase Price to the Title Company in cash or other readily available funds for disbursement in accordance with the terms and provisions of this Agreement; (ii) execute and deliver a counterpart original of the Deed; (iii) deliver such evidence of authority to act hereunder as Seller and the Title Company may reasonably require for Closing; and (iv) such other documents as the Title Company may reasonably request to consummate Closing. 3.04 Closing Costs. Seller shall pay: (i) the fee for the recording of the Deed; and (ii) one -half (A) of any escrow fee charged by the Title Company. Purchaser shall pay: (i) one half (i4) of any escrow fee charged by the Title Company; and (ii) the base premium for the Title Policy. Each party shall be responsible for the payment of its own attorney's fees, copying expenses, and other costs incurred in connection with this transaction. 3.05 Prorations. All normally and customarily proratable items, including, without limitation, real estate and personal property taxes, utility expenses and rents shall be prorated as of the Closing Date, Seller being charged and credited for all of the same up to such date and Purchaser being charged and credited for all of the same on and after such date. Any additional ad valorem taxes relating to the year of Closing and/or prior years arising out of a change in usage or ownership of the Property (including without limitation any "rollback" or other additional taxes payable under the terms of Section 23.46 or Section 23.55 of the Texas Tax Code, as amended, or any similar laws) shall be borne and paid in full by the Purchaser and Purchaser will indemnify Seller from such expense, if any. The provisions of this Section 3.05 shall survive the Closing. ARTICLE IV MISCELLANEOUS PROVISIONS 4.01 Notice. Any notice provided or permitted to be given under this Agreement must be in writing and may be served by depositing the same in the United States Mail, certified, with return receipt requested, addressed to 77007.4/031700 the party to be notified and with all charges prepaid; or by delivering the same to such party, or an agent of such party by telecopy or by hand delivery. Notice deposited in the United States mail in the manner hereinabove described shall be deemed effective from and after the earlier of the date of actual receipt or three (3) days after the date of such deposit. Notice given in any other manner shall be effective only if and when received by the party to be notified. For the purposes of notice, the addresses of the parties shall be as set forth in the first paragraph of this Agreement. 4.02 Assignment. This Agreement may not be assigned by the Purchaser without the prior written consent of Seller. Notwithstanding the foregoing, Purchaser shall have the right to assign this Agreement to the Texas Department of Transportation without the prior written consent of Seller; provided, however, that the Texas Department of Transportation shall expressly assume all of Purchaser's obligations and duties hereunder, including, but not limited to the restriction that the Property be used for right -of -way purposes only. 4.04 Real Estate Commissions. Seller and Purchaser each represent and warrant to the other that no real estate brokerage commission is payable to any person or entity in connection with this transaction, and each agrees to and does hereby indemnify and hold the other harmless against the payment of any commission to any person or entity claiming by, through or under Seller or Purchaser, as applicable. 4.05 Access. As part of the consideration for the option, the Purchaser interposes no objection to any applicable entities approving the curb cut for the Property, which is cross- hatched and labeled "Access Area" on Exhibit "C" attached hereto and incorporated herein by reference. Purchaser will ratify the approval of the Access Area in connection with approval of Purchaser's site development permit for the Property. In the event the Purchaser does not approve the Access Area in the location reflected on Exhibit "C ", this option will terminate and be of no further force or effect. SELLER: ERG ROUND ROCK, LTD., a Texas limited partnership PURCHASER: ATTEST: 4.03 Time. Time is of the essence in all things pertaining to the performance of this Agreement. EXECUTED by the undersigned on the dates set forth hereinbelow 111 ad JAL" nne Land, City Secretary 77007.4/031700 By: EGP Management, L.L.C., a Texas limited liability company, its general .arm By: Printed Nee: Title: Date: /7 /012 T(4E CITY ROUN OCK, TEXAS Robert Stluka, Mayor Date: 3 - - 2 — OQ TOTAL AREA `' 4.094 ACRES (178,351 SQ. Ft) 11.06 AC. W.D.L. 1NVESTMENTS, 1NC. 1618/273 BOUNDARY LINE AGREEMENT PER DOCUMENT # 4850638 IMLUAMSON COUNTY ORIGINAL DEED LINE VOL 353,, PC 553—\ V FENCE ON UNE 7F REM /NGTON 5.$ PAGE 55 -U --0.. A '� qq $ F C � •a /y,' 9 � / F + P.O.B. APPARENT uosr EASTERLY CORNER OF 43 ACRE LEPPIN TRACT �F.'s F \ S '6 ti No. C1 Delta 00'43'07" Radius 23118.31 Arc Length 290.00 Chord Length 290.00 Chord Bearing 573'40'24 "W THE STATE OF TEXAS COUNTY OF WILLIAMSON EXHIBIT "B" SPECIAL WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS: THAT ERG ROUND ROCK, LTD., a Texas limited partnership ( "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00) and other good and valuable consideration to Grantor in hand paid by the CITY OF ROUND ROCK, TEXAS ( "Grantee "), whose mailing address is 221 East Main Street, Round Rock, Texas 78664, the receipt and sufficiency of which consideration is hereby acknowledged and confessed, has GRANTED, SOLD AND CONVEYED, and by these presents does GRANT, SELL AND CONVEY, unto Grantee, subject to all of the reservations, exceptions and other matters set forth or referred to herein, the following described real property, together with all improvements thereon, if any (the "Property "), to -wit: TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee, and Grantee's successors or assigns, forever; and, subject to all of the matters set forth or referred to herein, Grantor does hereby bind itself and its successors to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee, Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof, by, through, or under Grantor, but not otherwise; provided, however that this conveyance is made by Grantor and accepted by Grantee subject to: (a) all of the title exceptions revealed in or by the recorded documents and other matters listed on Exhibit "B" attached hereto and incorporated herein by reference, and Grantee by acceptance of delivery of this deed does hereby assume and agree to perform all of the obligations of Grantor under said title exceptions which are applicable to the Property, (b) any discrepancies, conflicts, or shortages in area or boundary lines, (c) any encroachments or overlapping of improvements, and (d) all standby fees, taxes and assessments by any taxing authority for the current and all subsequent years, and all taxes and assessments for prior years due to change in land usage or ownership, and all liens securing the payment of any of the foregoing. By acceptance of this deed, Grantee assumes and agrees to pay and indemnifies and agrees to hold Grantor harmless from and against all ad valorem taxes relating to the Property, for the current and all subsequent years, and for any assessments for the current and any prior years which arise on or after the date of this deed due to change in usage or ownership of the Property or otherwise. The Property herein conveyed is hereby restricted to right -of -way uses only and Grantee, by acceptance of this Deed, takes the Property subject to the restriction. This restriction runs with the land in perpetuity. GRANTOR HAS EXECUTED AND DELIVERED THIS SPECIAL WARRANTY DEED AND HAS CONVEYED THE PROPERTY AND GRANTEE HAS RECEIVED AND ACCEPTED THIS SPECIAL WARRANTY DEED AND HAS PURCHASED THE PROPERTY "AS IS ", "WHERE IS ", AND "WITH ALL FAULTS" AND WITHOUT REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED (OTHER THAN THE WARRANTY OF TITLE EXPRESSLY SET FORTH HEREIN). 77007.4/031700 That certain real property in Williamson County, Texas, which is more particularly described on Exhibit "A" attached hereto and incorporated herein by reference.. EXECUTED AND DELIVERED to be effective the day of , 2000. ERG ROUND ROCK, LTD., a Texas limited partnership By: EGP Management, L.L.C., a Texas limited liability company, its general partner THE STATE OF TEXAS (SEAL) Notary Public Signature COUNTY OF WILLIAMSON § 77007.6/071700 By: Printed Name: Title: Date: This instrument was acknowledged before me this day of , 2000 by of EGP Management, L.L.C., a Texas limited liability company, general partner of ERG Round Rock, Ltd., a Texas limited partnership, on behalf of said partnership and company. FUR sTAnOM SCG SCCIME0 mxG PxnvC SIVICYRO M. Pum■ tar L.K.X111. 1.041. REMAINDER Cr 11.05 AC. W.O.L. INVESTMENTS. INC. /5/8/273 0 60 120 180 240 DATE: March 18, 2000 SUBJECT: City Council Meeting — March 23, 2000 ITEM: 13.B2. Consider a resolution authorizing the Mayor to execute an option agreement with ERG Round Rock, Ltd for the purchase of right -of- way for SH 45. Staff Resource Person: Joe Vining, Planning Director. The Endeavor Group has offered to sell the area needed for SH 45 right -of -way at their cost. This agreement applies to the 4.108 -acre tract being considered for annexation. It does not apply to the 13.111 -acre tract at Greenlawn Boulevard and Louis Henna Boulevard. Mayor Robert A. Stluka, Jr. Mayor Pro-tem Earl M. Hairston Coundl Members Tom Nielson Carrie Pitt Earl Palmer Isabel Gailahat Jimmy Joseph City Manager Robert L Bennett, Jr. (Sty Attorney Stephan L Sheets CITY OF ROUND ROCK October 3, 2000 Mr. Andy Pastor ERG Round Rock, Ltd. 100 Congress, Suite 1310 Austin, Texas 78701 Dear Mr. Pastor: The Round Rock City Council approved Resolution No. R- 00- 03- 23 -13B2 at their regularly scheduled meeting on March 23, 2000. This resolution approves the Option Agreement for the purchase of 1.325 acres for right -of -way purposes. I did not find any indication that you received an original agreement for your files. Enclosed are two original copies of the agreement and a copy of the resolution for your files. If you have any questions, please do not hesitate to contact Joe Vining, Planning Director at 218 -5420. Sincerely, l,IL�h �� itNr/ Christine Martinez Assistant City Secretary Enclosures Fax: 512- 218 -7097 1- 800 - 735 -2989 TDD 1- 800 - 735 -2988 Voice www.ci.round- rock.tx.us 221 East Main Street Round Rock, Texas 78664 512 -218 -5400 KIMBERLY S. BECKHAM (512) 435-2382 kbeckham@abdlaw.com HAND DELIVERY Steven Sheets Brown McCarroll Sheets & Crossfield 309 East Main Street Round Rock, Texas 78664 -5246 Dear Steve: Enclosures cc: Andy Pastor (w /o enclosures) 77581.1/031700 ARMBRUST BROWN & DAVIS, L.L.P. ATTORNEYS AND COUNSELORS 100 CONGRESS AVENUE, SUITE 1300 AUSTIN, TEXAS 25201.4042 (512) 435.2300 TELEOOPIER (512) 435-2380 March 17, 2000 RE: Option Agreement between the City of Round Rock and ERG Round Rock, Ltd. Enclosed please find three (3) original counterparts of the final revised version of the above - referenced Agreement which have been executed by ERG Round Rock, Ltd. I would appreciate it if you would have the documents reviewed, approved and ready for City Council action at the March 23, 2000 council meeting. Please call me if you have questions or comments. Thank you for your help in this matter. Sincerely, ARMBRUST BROWN & DAVIS, L.L.P. Kimb - ly S. B 2 ckham