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R-00-04-13-10B11 - 4/13/2000RESOLUTION NO. R- 00- 04- 13 -10B11 WHEREAS, the City desires to purchase a tract of land containing approximately 26.262 acres for right -of -way for SH -45, and WHEREAS, 35/45 Investors, L.P., the owner of the property, has agreed to sell said property to the City, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Real Estate Contract with 35/45 Investors, L.P., for the purchase of the above described property, a copy of said Real Estate Contract 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 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 13th day of April, 2000. ANNE LAND, City Secretary K \WPOOCS \RESOCUTI \ROO4130.11 /8C City of Round Rock, Texas State of Texas County of Williamson REAL ESTATE CONTRACT THIS CONTRACT OF SALE ( "Contract ") is made by and between 35/45 INVESTORS, L.P. a Texas limited partnership (referred to in this Contract as "Seller ") and the CITY OF ROUND ROCK, a Texas Home Rule City of 221 E. Main St. Round Rock, Williamson County, Texas (referred to in this Contract as "Purchaser "), upon the terms and conditions set forth in this Contract. ARTICLE I PURCHASE AND SALE By this Contract, Seller sells and agrees to convey, and Purchaser purchases and agrees to pay for, the tract of land containing approximately 26.262 acres of land (1,143,972.72 square feet) situated in Williamson County, Texas, being more particularly described as follows: C:\WP000S \Achy \SH 45 \LaPronteza \35_45 \%- 04_10.vpd /a1a (To be determined by TxDot survey.) together with all and singular the rights and appurtenances pertaining to the property, including any right, title and interest of Seller in and to adjacent streets, alleys or rights -of -way (all of such real property, rights, and appurtenances being referred to in this Contract as the "Property "), together with any improvements, fixtures, and personal property situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions set forth below. ARTICLE II PURCHASE PRICE Amount of Purchase Price 2.01. The purchase price for the Property shall be the sum of Eight Million Five Hundred Thousand and no /100 Dollars ($ 8,500,000.00.) Notwithstanding the foregoing, if the survey of the Property to be furnished by Purchaser reflects that the number of square feet comprising the Property is more or less than 1,143,972.72 square feet, the purchase 1 DL 94414 price is to be increased or reduced by the product of $7.43 times the number of square feet of the Property more or less than 1,143,972.72. Payment of Purchase Price 2.02. The Purchase Price shall be paid in cash at the closing. ARTICLE III PURCHASER'S OBLIGATIONS Conditions to Purchaser's Obligations 3.01. The obligations of Purchaser hereunder to consummate the transaction contemplated hereby are subject to the satisfaction of each of the following conditions (any of which may be waived in whole or in part by Purchaser at or prior to the closing). Preliminary Title Commitment 3.02. Within thirty (30) days after the date hereof, Seller, at Seller's sole cost and expense, shall have caused Heritage Title Company (the "Title Company ") of 98 San Jacinto, Austin, Texas 78701, to issue a preliminary title report (the "Title Commitment ") accompanied by copies of all recorded documents relating to easements, rights -of -way, etc., affecting the Property. Purchaser shall give Seller written notice on or before the expiration of twenty (20) days after Purchaser receives the Title Commitment that the condition of title as set forth in the title binder is or is not satisfactory, and in the event Purchaser states that the condition is not satisfactory, Seller shall promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser. In the event Seller is unable to do so within ten (10) days after receipt of written notice, this Contract shall thereupon be null and void for all purposes and the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. Purchaser's failure to give Seller this written notice shall be deemed to be Purchaser's acceptance of the Title Commitment. Survey 3.03. Within thirty (30) days from the date hereof, it is anticipated that the Texas Department of Transportation will complete a survey of the Property. The survey shall set forth the number of total acres comprising the Property, together with a metes and bounds description thereof. 2 The closing shall be held at the Title Company, on or before the 16th day of June, 2000, or at such time, date, and place as Seller and Purchaser may agree upon (which date is herein referred to as the "closing date "). (i) ARTICLE IV CLOSING Seller's Obligations 4.01. At the closing Seller shall: (a) Deliver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions, except for the following: General real estate taxes for the year of closing and subsequent years not yet due and payable; (ii) Any exceptions approved by Purchaser pursuant to Article III hereof; and (iii) Any exceptions approved by Purchaser in writing. The aforesaid General Warranty Deed will include provisions that (1) it is being delivered in lieu of condemnation and (2) Seller has made no representations or warranties concerning the Property and that Purchaser is purchasing the Property AS IS. (b) Deliver to Purchaser a Texas Owner's Title Policy at Purchaser's sole expense, issued by the Title Company, in Purchaser's favor in the full amount of the purchase price, insuring Purchaser's fee simple title to the Property subject only to those title exceptions listed above, such other exceptions as may be approved in writing by Purchaser, and the standard printed exceptions contained in the usual form of Texas Owner's Title Policy. (c) Deliver to Purchaser possession of the Property. 3 Purchaser's Obligations 4.02 At the Closing, Purchaser shall pay the cash portion of the purchase price. Prorations 4.03 General real estate taxes for the then current year relating to the Property, shall be prorated as of the closing date and shall be adjusted in cash at the closing. If the closing shall occur before the tax rate is fixed for the then current 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. All special taxes or assessments to the closing date shall be paid by Seller. Purchaser will bear the burden of paying any rollback taxes, if any, resulting from a change of use of the Property. Closing Costs 4.04 All costs and expenses of closing in consummating the sale and purchase of the Property shall be borne and paid as follows: Owner's Title Policy paid by Seller; Survey paid by Purchaser; Filing fees for deed paid by Purchaser; Filing fees for release(s) paid by Seller; Title curative matters, if any, paid by Seller; Attorney's fees paid by each respectively. ARTICLE V REAL ESTATE COMMISSIONS It is understood and agreed that there are no brokers involved in the negotiation and consummation of this Contract. ARTICLE VI ESCROW DEPOSIT For the purpose of securing the performance of Purchaser under the terms and provisions of this Contract, Purchaser has delivered to the Title Company, the sum of One Thousand Dollars ($1,000.00), the Escrow Deposit, which shall be paid by the Title Company to Seller in the event Purchaser breaches this Contract as provided in Article VIII hereof. At the closing, the Escrow Deposit shall be paid over to Seller and applied to the cash portion of the purchase price, provided, however, that in the 4 ARTICLE VII BREACH BY SELLER ARTICLE VIII BREACH BY PURCHASER ARTICLE IX MISCELLANEOUS Assignment of Contract Survival of Covenants 5 PWANIP event the Purchaser shall have given written notice to the Title Company that one or more of the conditions to its obligations set forth in Article III have not been met, or, in the opinion of Purchaser, cannot be satisfied, in the manner and as provided for in Article III, then the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. In the event Seller shall fail to fully and timely perform any of its obligations hereunder or shall fail to consummate the sale of the Property for any reason, except Purchaser's default, Purchaser may, as its sole and exclusive remedy, either: (1) enforce specific performance of this Contract; or (2) request that the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. In the event Purchaser should fail to consummate the purchase of the Property, the conditions to Purchaser's obligations set forth in Article III having been satisfied and Purchaser being in default and Seller not being in default hereunder, Seller shall have the right to (1) bring suit for damages against Purchaser; or (2) receive the Escrow Deposit from the Title Company, the sum being agreed on as liquidated damages for the failure of Purchaser to perform the duties, liabilities, and obligations imposed upon it by the terms and provisions of this Contract, and Seller agrees to accept and take this cash payment as its total damages and relief and as Seller's sole remedy hereunder in such event. 9.01. (a) This Contract may not be assigned without the express written consent of Seller. (b) Any of the representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein. Notice (c) Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage prepaid, certified mail, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth opposite the signature of the party. Texas Law to Apply (d) This Contract shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Williamson County, Texas. Parties Bound (e) This Contract shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Contract. Legal Construction (f) In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, this invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein. Prior Agreements Superseded (g) This Contract constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. Time of Essence (h) Time is of the essence in this Contract. 6 Gender (i) Words of any gender used in this Contract shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. Memorandum of Contract (j) Upon request of either party, both parties shall promptly execute a memorandum of this Contract suitable for filing of record. Effective Date (k) This Contract shall be effective as of the date it is approved by the City Council, which date is indicated beneath the Mayor's signature below. SELLER: 35/45 INVESTORS, L.P. By: 35/45 Genpar, L.L.C., General Partner By: William S. Smalling, Manager Date: PURCHASER: CITY OF ROUND ROCK, TEXAS By: Robert A. Stluka, Jr., Mayor 221 E. Main Street Round Rock, Texas 78664 Date: 7 Acquisition of Property from 35!45/Joint Venture for SH.45 Right-of-Way DATE: April 7, 2000 SUBJECT: City Council Meeting — April 13, 2000 ITEM: 10.B.11. Consider a resolution authorizing the Mayor to execute a Real Estate Contract with 35/45 Investors L.P. for the acquisition of approximately 26.262 acres of property from 35/45 /Joint Venture for SH -45 right -of -way. Staff Resource Person: Jim Nuse, Public Works Director.