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R-00-08-10-10B5 - 8/10/2000RESOLUTION NO. R- 00- 08- 10 -10B5 WHEREAS, in order to prepare for the construction of the westbound SH 45 frontage road project, it is necessary to obtain the right to possession and use of certain property belonging to 35/45 Investors, L.P., and WHEREAS, a Possession and Use Agreement for Transportation Purposes ( "Agreement ") has been prepared which will grant to the City the necessary rights, and WHEREAS, the City Council wishes to approve said 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 a Possession and Use Agreement for Transportation Purposes with 35/45 Investors, L.P., to grant to the City the necessary rights for the construction of the westbound SH 45 frontage road project, 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 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 K,\ WPDOCS \RESOLUTI \R00810B5.RPD/ec and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended, and the Act. RESOLVED this 10th day of August, 2000. ATTEST: LAND, City Secretary 2 RT A. STLUKA, JR., Mayor City of Round Rock, Texas EXHIBIT "A" Property Descriptions 4 Acquisition of Property from 35/45/Joint Venture for SH-45 Rlght•of•Way POSSESSION AND USE AGREEMENT FOR TRANSPORTATION PURPOSES STATE OF TEXAS COUNTY OF WILLIAMSON This Possession and Use Agreement ( "Agreement, ") effective the ID day of August, 2000 between the City of Round Rock, Texas, a home rule municipal corporation (the "City "), and 35/45 INVESTORS, L.P. a Texas limited partnership (the "Grantor "), grants an irrevocable right to possession and use to the City, its contractors, agents, assigns and all others deemed necessary by the City for the purpose of constructing a portion of State Highway No. 45. The property involved is described more fully in field notes and plat map (attached as Exhibit "A ") and made a part of this Agreement by.reference (the "Property "). - ___ - 1. For the consideration paid by the City which is set forth in Paragraph 2. below, the receipt and sufficiency of which is acknowledged, Grantor grants, bargains, sells and conveys to the City exclusive possession and use of the Property for the purpose of constructing a highway or turnpike project and appurtenances thereto and the right to remove any improvements. This Agreement will extend to the City, its contractors, assigns and/or owners of any existing utilities on the Property and those which may be lawfully permitted on the Property by the City in the future. This grant will allow the construction, relocation, replacement, repair, improvement, operation and maintenance of these utilities on the Property. The City agrees that such work must be performed in a good, workmanlike and safe manner and in accordance with all laws, codes, statutes, rules, regulations and ordinances. The City will not allow any mechanics or materialmen liens (or any other liens arising out of the City's possession of the Property) to attach to the Property. Finally, the City will (i) maintain the Property in good order and repair and will not allow waste on the Property and (ii) will not allow hazardous substances or waste to be stored or used on the Property except in de minimis and customary amounts in strict accordance with all laws, statutes, rules, regulations, codes and ordinances. 2. In full consideration for this irrevocable grant of possession and use, the City will tender to the Grantor the sum of One Hundred Dollars ($100.00). The Grantor agrees that this sum represents adequate and full compensation for the possession and use of the Property. The City will be entitled to take possession and use of the Property upon tender of payment. 3. This Agreement is made with the understanding that the Parties hereto are simultaneously entering into a Real Estate Contract whereby the City agrees to purchase and the Grantor agrees to sell the Property for an agreed upon purchase price. Under the terms of said Real Estate Contract, the closing date may occur as late as December 1, 2000, but it is in the interests of the Parties hereto for construction of SH 45 to commence as soon as possible, which this Agreement will allow. Grantor warrants and represents that the title to the Property will be conveyed free and clear of all liens and encumbrances and that proper releases will be executed for the Property prior to funds being disbursed under said Real C. \ MPCCCS \AC21Y \SH 4S\ LaFron r \35_<S\P- fina1..pd /els § 1 Estate Contract. Grantor further warrants that no other person or entity owns an interest in the fee title to the Property. The Grantor further agrees to indemnify the City from all unreleased or undisclosed liens, claims or encumbrances affecting the Property. If the City_acquires additional real property from the Grantor or the Grantor's affiliates as part of the same transportation project for which the Property is being acquired, such acquisition of additional property shall not be deemed a second taking. Accordingly, Grantor or Grantor's affiliates shall be entitled to the fair market value of said additional property, but shall not be entitled to any increase in property value to the additional property resulting solely from the influence of the transportation project on the value of the additional property. 5. The purpose of. his Agreement is to allow the City to proceed with its construction project without delay. 6. Grantor reserve all of the oil, gas and sulphur in and under the land herein conveyed but waive all right of ingress and egress to the surface for the purpose of exploring, developing, mining or drilling. Nothing in this reservation will affect the title and rights of the City to take and use all other minerals and materials thereon, and thereunder. The extraction of oil, gas and minerals may not affect the geological stability of the surface. 7. The undersigned Grantor agrees to pay all taxes, including prorated taxes for the current year, and special assessments due at the time the City takes possession of the Property. 8. This Agreement will also extend to and bind the heirs, devisees, executors, administrators, legal, representatives, successors and assigns of the parties. 9. It is agreed the City will record this document. 10. It is agreed that Grantor may elect to terminate this Agreement if the City is in default of its obligations to Purchase the Property under the terms of Real Estate Contract described in paragraph 3 above. 11. It is agreed that the City may assign this Agreement to the State of Texas, acting by and through the Texas Turnpike Authority Division of the Texas Department of Transportation. To have and to hold the Agreement herein described and conveyed, together with all the rights and appurtenances belonging to the City and its assigns forever, for the purposes and subject to the limitations set forth above. In witness whereof, this instrument is executed on this the 10 day of August, 2000. 2 State of Texas County of Williamson State of Texas County of Williamson This instrument was acknowledged Mayor of the City of Round Rock, Texas. CHRISTINE R. MARTINEZ MY COMIMISSIGH ExpasS August 5, 2001 Grantor: 35/45 INVESTORS, L.P. By: 35/45 Genpar, L.L.C., General Partner By: William S. Smalling, Manager Date: Accepted and agreed to by the City this the day of August, 2000. w City 6FRblund Rock, T Acknowledgments A. Stluka, its Mayor This instrument was acknowledged before me on August , 2000 by Smalling, Manager of 35/45 Genpar, L.L.C., the General Partner of 35/45 INVESTORS, L.P.. (signature) (typed name) Notary Public in and for the State of Texas My commission expires , 200 before me on August 10 , 2000 by Robert A. Stluka, O ultariiiG i n signature) CNk157146 4/277 typed name) Notary Public in and for the State of Texas My commission expires AuGus S , 200 i c ' 3 DATE: August 4, 2000 SUBJECT: City Council Meeting — August 10, 2000 ITEM: 10.B.5. Consider a resolution authorizing the Mayor to execute a Possession and Use Agreement for Transportation Purposes with 35/45 Investors, L.P. for the SH 45 project. Staff Resource Person: Jim Nuse, Public Works Director. THE STATE OF TEXAS COUNTY OF WILLIAMSON CITY OF ROUND ROCK I, CHRISTINE R. MARTINEZ, City Secretary of the City of Round Rock, Texas, do hereby certify that I am the custodian of the public records maintained by the City and that the above and foregoing is a true and correct copy of Ordinance No. R- 00 -08- 10-10B5 which was approved and adopted by the City Council of the City of Round Rock, Texas, at a meeting held on the 10th day of August, 2000, as recorded in the minutes of the City of Round Rock in Book 43. CERTIFIED by my hand and seal of the City of Round Rock, Texas on this 11th day of January 2002. 2002003705 9 pes OA CHRISTINE R. MARTINEZ, City Secreta e /J RESOLUTION NO. R- 00- 08- 10 -10B5 WHEREAS, in order to prepare for the construction of the westbound SH 45 frontage road project, it is necessary to obtain the right to possession and use of certain property belonging to 35/45 Investors, L.P., and WHEREAS, a Possession and Use Agreement for Transportation Purposes ( "Agreement ") has been prepared which will grant to the City the necessary rights, and WHEREAS, the City Council wishes to approve said 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 a Possession and Use Agreement for Transportation Purposes with 35/45 Investors, L.P., to grant to the City the necessary rights for the construction of the westbound SH 45 frontage road project, 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 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 K \ RPDOCS \RESOLUTI \R0001005.NPD /aC and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended, and the Act. RESOLVED this 10th day of August, 2000. ATTEST: E LAND, City Secretary 2 R► R A. STLUKA, JR., Mayor City of Round Rock, Texas EXHIBIT "A" Property Descriptions 4 • ogi Is It. • �Q..0 r e Acquisition of Property from 351451JoInt Venture forSH-45 Rightof•Way e otl k o POSSESSION AND USE AGREEMENT FOR TRANSPORTATION PURPOSES STATE OF TEXAS COUNTY OF WILLIAMSON C \MPOOCS \ACITY \sH 45 \LaFrontera \15_95 \P- final.wpd /sls § •§ This Possession and Use Agreement ( "Agreement, ") effective the ID day of August, 2000 between the City of Round Rock, Texas, a home rule municipal corporation (the "City"), and 35/45 INVESTORS, L.P. a Texas limited partnership (the "Grantor "), grants an irrevocable right to possession and use to the City, its contractors, agents, assigns and all others deemed necessary by the City for the purpose of constructing a portion of State Highway No. 45. The property involved is described more fully in field notes and plat map (attached as Exhibit "A ") and made a part of this Agreement by reference (the "Property "). 1. For the consideration paid by the City which is set forth in Paragraph 2. below, the receipt and sufficiency of which is acknowledged, Grantor grants, bargains, sells and conveys to the City exclusive possession and use of the Property for the purpose of constructing a highway or turnpike project and appurtenances thereto and the right to remove any improvements. This Agreement will extend to the City, its contractors, assigns and/or owners of any existing utilities on the Property and those which may be lawfully permitted on the Property by the City in the future. This grant will allow the construction, relocation, replacement, repair, improvement, operation and maintenance of these utilities on the Property. The City agrees that such work must be performed in a good, workmanlike and safe manner and in accordance with all laws, codes, statutes, rules, regulations and ordinances. The City will not allow any mechanics or materialmen liens (or any other Liens arising out of the City's possession of the Property) to attach to the Property. Finally, the City will (i) maintain the Property in good order and repair and will not allow waste on the Property and (ii) will not allow hazardous substances or waste to be stored or used on the Property except in de minimis and customary amounts in strict accordance with all laws, statutes, rules, regulations, codes and ordinances. 2. In full consideration for this irrevocable grant of possession and use, the City will tender to the Grantor the sum of One Hundred Dollars ($100.00). The Grantor agrees that this sum represents adequate and full compensation for the possession and use of the Property. The City will be entitled to take possession and use of the Property upon tender of payment. 3. This Agreement is made with the understanding that the Parties hereto are simultaneously entering into a Real Estate Contract whereby the City agrees to purchase and the Grantor agrees to sell the Property for an agreed upon purchase price. Under the terms of said Real Estate Contract, the closing date may occur as late as December 1, 2000, but it is in the interests of the Parties hereto for construction of SH 45 to commence as soon as possible, which this Agreement will allow. Grantor warrants and represents that the title to the Property will be conveyed free and clear of all liens and encumbrances and that proper releases will be executed for the Property prior to funds being disbursed under said Real 1 Estate Contract. Grantor further warrants that no other person or entity owns an interest in the fee title to the Property. The Grantor further agrees to indemnify the City from all unreleased or undisclosed liens, claims or encumbrances affecting the Property. 4. If the City acquires additional real property from the Grantor or the Grantor's affiliates as part of the same transportation project for which the Property is being acquired, such acquisition of additional property shall not be deemed a second taking. Accordingly, Grantor or Grantor's affiliates shall be entitled to the fair market value of said additional property, but shall not be entitled to any increase in property value to the additional property resulting solely from the influence of the transportation project on the value of the additional property. 5. The purpose of this Agreement is to allow the City to proceed with its construction project without delay. 6. Grantor reserve all of the oil, gas and sulphur in and under the land herein conveyed but waive all right of ingress and egress to the surface for the purpose of exploring, developing, mining or drilling. Nothing in this reservation will affect the title and rights of the City to take and use all other minerals and materials thereon, and thereunder. The extraction of oil, gas and minerals may not affect the geological stability of the surface. 7. The undersigned Grantor agrees to pay all taxes, including prorated taxes for the current year, and special assessments due at the time the City takes possession of the Property. 8. This Agreement will also extend to and bind the heirs, devisees, executors, administrators, legal, representatives, successors and assigns of the parties. 9. It is agreed the City will record this document. 10. It is agreed that Grantor may elect to terminate this Agreement if the City is in default of its obligations to Purchase the Property under the terms of Real Estate Contract described in paragraph 3 above. 11. It is agreed that the City may assign this Agreement to the State of Texas, acting by and through the Texas Turnpike Authority Division of the Texas Department of Transportation. To have and to hold the Agreement herein described and conveyed, together with all the rights and appurtenances belonging to the City and its assigns forever, for the purposes and subject to the limitations set forth above. In witness whereof, this instrument is executed on this the 10 day of August, 2000. 2 Accepted and agreed to by ihe City this the day of August, 2000. State of Texas County of Williamson State of Texas County of Williamson This instrument was acknowledged Mayor of the City of Round Rock, Texas. CHRISTINE R. MARTINEZ MN COMASSIGN EXPIRES August 5, 2001 Grantor: 35/45 INVESTORS, L.P. By: 35/45 Genpar, L.L.C., General Partner By: William S. Smalling, Manager Date: - City Rind Rock, T xas ■ MU II I Acknowledgments 3 ert A. Stluka, its Mayor This instrument was acknowledged before me on August , 2000 by Bill Smalling, Manager of 35/45 Genpar, L.L.C., the General Partner of 35/45 INVESTORS, L.P.. Notary Public in and for the State of Texas My commission expires ,200 (signature) (typed name) before me on August ID, 2000 by Robert A. Stluka, O uLt:th6tv e. signature) Caisfi,v6 /72412.77A.16 typed name) Notary Public in and for the State of Texas My commission expires AuGase .5 , 200 I 1 1e- 00- 08- /0406g FILED Ruda RECCRPEC OFFICIAL PUBLIC RECORDS 01- 14- 2002 - ` 10:27 AM 2002003705 ANDERSON $25.00 NANCY E. RISTER .COUNTY CLERK WILLIAMSON COUNTY, TEXAS PiteGIL a/cu nj to CITY OF ROUND ROCK ADMINISTRATION 221 EAST MAIN STREET ROUND ROCK, TEXAS 78664