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R-03-02-13-13D11 - 2/13/2003RESOLUTION NO. R- 03- 02- 13 -13D11 WHEREAS, the City desires to purchase a 8.68 acre tract of land at the corner of Greenhill Drive and Old Settlers Boulevard for the new Police Department site, and WHEREAS, TRK Investments, L.L.C., 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 TRK Investments, L.L.C. for the purchase of the above described property, a copy of said Real Estate Contract being attached hereto as Exhibit "A" and incorporated herein. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 13th day of February, 2003. A T - 'ST:, CHRISTINE R. MARTINEZ, City Secreta O, \wdox \RESOLUTI \R301130.11 /sc .` ALL, Mayor City of Round Rock, Texas State of Texas County of Williamson REAL ESTATE CONTRACT THIS CONTRACT OF SALE ( "Contract ") is made by and between TRK INVESTMENTS, L.P., a Texas limited partnership, acting by and through TRK INVESTMENTS GP, INC., a Texas corporation, its General Partner, P. O. Box 2414, Round Rock, Williamson County, Texas 78680 (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 78664 (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 8.68 acres of land situated in Williamson County, Texas, being more particularly described as follows: Lot 1, Block F, Crystal Park, a subdivision in Round Rock, Williamson County, Texas, according to the plat of record in Cab. I, Slide 146, Plat Records, Williamson County, Texas; 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 Hundred Twenty -Four Thousand Two Hundred Fifty -Nine and 74/100 Dollars ($824,259.74). Notwithstanding the foregoing, if the survey of the Property to be furnished by Seller to Purchaser, as provided below, reflects that the number of square feet comprising the Property is more or less than 378,100.80, the purchase price is to be increased or reduced by the product of $2.18 times the number of square feet of the Property more or less than 378,100.80. 2.02. The Purchase Price shall be paid in cash at the closing. G.,ewuP ,i,y.aa....a..aai. . Payment of Purchase Price 1 EXHIBIT 1 „ A.. 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 Georgetown Title Company, 1717 N. Mays, Round Rock, Texas (the "Title Company ") 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 often (10) days after Purchaser receives the Title Commitment that the condition of title as set forth therein 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, provided however that in no event shall Seller be obligated to expend any money or file any lawsuit in order to eliminate or modify any such matters. In the event Seller is unable to do so within ten (10) days after receipt of written notice, Purchaser shall have the option, exercisable at any time within seven (7) days after the expiration of such ten (10) day period, to declare this Contract to 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 within such seven (7) day period shall be deemed to be Purchaser's acceptance of the Title Commitment and approval of all matters shown thereon. Survey 3.03. Within thirty (30) days from the date hereof, Seller, at Seller's sole cost and expense, shall cause to be delivered a current plat of survey of the Property, prepared by a duly licensed Texas land surveyor. Such survey may be a current update of an existing survey of the Property. The survey shall be staked on the ground, and the plat shall show the location of all improvements, highways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights -of -way on the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the property except as shown thereon and shall set forth the number of total acres comprising the Property and the total number of square feet comprising the Property, together with a metes and bounds description thereof. Notwithstanding the foregoing, in the event that Purchaser shall elect to terminate this Contract for any reason, then Purchaser shall reimburse Seller for the reasonable cost incurred by Seller in obtaining such survey. New Surveys and Tests 3.04. Within sixty (60) days after the date hereof Purchaser is granted the right to conduct surveys and tests, including, 'but not limited to, an environmental survey, engineering/architectural surveys and feasibility study of the Property, and in this connection Purchaser or Purchaser's designated agents may enter upon the premises for purposes of soil analysis, core drilling, environmental survey, or other tests which may be deemed necessary to Purchaser or Purchaser's agents. If it should be determined by Purchaser 2 in Purchaser's sole judgment that the Property is not suitable for the intended purposes, then and in this event, Purchaser may, on written notice to Seller received prior to sixty (60) days from the date hereof, terminate this Contract and it shall be null and void for all purposes and the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. If the written notice is not received by Seller within this 60 day period, the condition of the Property shall be deemed to be acceptable to Purchaser and any objection thereto shall be deemed to have been waived for all purposes. Purchaser shall promptly repair any damages or otherwise restore the Property to its original condition following any such entry upon or testing of the Property, and shall, to the maximum extent permitted by law, indemnify and hold harmless Seller on account of any claims, causes of action, damages or expenses (including attomey's fees) rising out of or relating to the acts of Purchaser, its agents, employees, contractors and consultants under the provisions of this Section 3.04. The foregoing obligations to repair and restore the Property and indemnify Seller shall survive any Closing under this Contract, and any termination of this Contract. Miscellaneous Conditions 3.05. Seller shall have performed, observed, and complied with all of the covenants, agreements, and conditions required by this Contract to be performed, observed, and complied with by Seller prior to or as of the closing. 3.06. In the event that Purchaser should terminate this Contract for any reason, Purchaser shall, simultaneously with such termination, deliver to Seller true, correct and complete copies of any and all reports, tests and other documents prepared by Purchaser or for its benefit, relating to the condition of the Property. ARTICLE I v CLOSING The closing shall be held at the office of the Title Company on or before April 30, 2003, or at such time, date, and place as Seller and Purchaser may agree upon (which date is herein referred to as the "closing date "). 4.01. At the closing Seller shall: Seller's Obligations (a) Deliver to Purchasera duly executed and acknowledged Special Warranty Deed conveying indefeasible 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. (i) 3 (b) Deliver to Purchaser a Texas Owner's Title Policy at Seller's sole expense, issued by 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) 4.02 Deliver to Purchaser possession of the Property. Purchaser's Obligations 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 outstanding road district assessments and any other special assessments shall be paid by Seller. 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 Seller; 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 The only brokers who have been involved in the negotiation and consummation of this Contract are Don Quick & Associates. Conditioned on the closing of the sale contemplated by this Contract, a commission in the amount of six percent (6 %) percent of the total sales price will be payable to Don Quick & Associates. This commission is to be payable in cash at the closing. If this Contract is terminated for any reason before closing, there will be no commission due or payable under the Contract. All real estate commissions will be the sole responsibility of Seller, and Seller agrees to indemnify and hold harmless Buyer from any claims for these commissions. Each of the parties represents to the other that it has not incurred and will not incur any liability for brokerage fees or agent's commissions in connection with this Contract other than the liability of Seller as set forth in this paragraph. 4 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 Five Thousand Dollars ($5,000.00), 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 event Purchaser determines that the Property is not suitable for the intended purposes, and so notifies Seller as provided in Section 3.04, or one or more of the conditions to its obligations set forth in Article III have not been met, - in the manner and as provided for in Article III, then the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. ARTICLE VII BREACH BY SELLER 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: (1) bring suit for damages against Purchaser; or (2) request that the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. Purchaser waives all other remedies in the event of a default by Seller under this Contract. ARTICLE VIII BREACH BY 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 Sellernot being in default hereunder, Seller shall have the right to receive the Escrow Deposit from the Title Company and a cash sum from Purchaser equal to the reasonable cost incurred by Seller in obtaining the survey of the Property described in Section 3.03, such sums being agreed on as liquidated damages for the failure of Purchaser to perfonn 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 the event Seller elects such remedy. Seller waives all other remedies in the event of a default by Purchaser under this Contract. ARTICLE IX MISCELLANEOUS Assignment of Contract 9.01. (a) This Contract may not be assigned without the express written consent of Seller. Survival of Covenants (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. 5 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. 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. No Representation or Warranty (j) Seller makes no representation with respect to the Property. Seller has made no warranty in connection with this Contract. 6 (k) THIS CONTRACT IS AN ARMS - LENGTH AGREEMENT BETWEEN THE PARTIES. THE PURCHASE PRICE WAS BARGAINED ON THE BASIS OF AN "AS IS, WHERE IS" TRANSACTION AND REFLECTS THE AGREEMENT OF THE.PARTIES THAT THERE ARE NO REPRESENTATIONS, DISCLOSURES, OR EXPRESS OR IMPLIED WARRANTIES, EXCEPT FOR THE WARRANTY OF TITLE STATED IN THE CLOSING DOCUMENTS. THE PROPERTY WILL BE CONVEYED TO PURCHASER IN AN "AS IS, WHERE IS" CONDITION, WITH ALL FAULTS. ALL WARRANTIES, EXCEPT THE WARRANTY OF TITLE IN THE CLOSING DOCUMENTS, ARE DISCLAIMED. The provisions of this paragraph will be included in the Special Warranty Deed with appropriate modification of terms as the context requires. Dated this IC day of February, 2003. "As Is, Where Is Sale" SELLER: TRK INVESTMEN S, L.P. By: TRK � j S ' . GP, By: Charles R. ing, Vi •dent 2301 N. IH 35 Round Rock, TX 7866 221 E. Main Street Round Rock, Texas 78664 7 02/06/2003 15:43 FAX 5122185563 CORR PUBLIC WORKS + CITY HALL tj002 /009 FEB -06 -2003 16:01 5122185563 97'/. P.02 DATE: February 7, 2003 SUBJECT: City Council Meeting — February 13, 2003 ITEM: 13.D.11. Consider a resolution authorizing the mayor to execute a Real Estate contract with TRK Investments, L.L.C. for the purchase of an 8.68 acre tract of lard for he new Police Department site. Resource: Larry Madsen, Project Manager Paul Conner, Chief of Police Steve Sheets, City Attorney History: The site assessment provided by Brinkley Sargent, determined that it is in the best interest of the City to purchase this property for the future site of the new facility for the Round Rock Police department. Funding: • Cost: Purchase Price $790,231.67 — ($70,000 for Road District Assessment) Total Cost: $860,231.67 Source of funds: Capital Project Funds - 2002 G.O. Bonds Outside Resources: TRK Investments, LLC ImpactBenefit: This location will allow accessibility and visibility for the new police facility. Public Comment: N/A Sponsor: N/A Address: 221 E. Main St. Round Rock Texas 78664 Dear: Mr. Maxwell Georgetown Title Company, Inc. RECEIVR FEB 2 7 20n Date February 24, 2003 Re: GF 03053985 Concerning the above referenced transaction, we are enclosing the title commitment and copies of the restrictions. We are looking forward to working with you in closing this transaction. If you should have any questions, please do not hesitate to contact our office. Thank you. Yours very truly, Jill Morgan Escrow Officer Round Rock Branch • f -O3- od_-13- )5Di 1 Reliable land title information for Williamson County since 1893 1727 .N .Nays PO Box 835 RourtcCRock, 2X 7868o (512) 255-5839 Yax 244-9133 Seller Investments Buyer City of Round Rock Legal Lot 1 Block F Crystal Park 1 Commitment No.: Effective Date: February 17, 2003 1. The policy or polices to be issued are: SCHEDULE A issued February 21 , 20 , P • m. (a) OWNER POLICY OF TITLE INSURANCE (Form T -1) (Not applicable for improved one -to -four family residential real estate) Policy Amount: $824,259.74 PROPOSED INSURED: CITY OF ROUND ROCK. (b) TEXAS RESIDENTIAL OWNER POLICY OF TITLE INSURANCE -- ONE -TO -FOUR FAMILY RESIDENCES (Form T -1 R) Policy Amount: $ PROPOSED INSURED: (c) MORTGAGEE POLICY OF TITLE INSURANCE (Form T -2) Policy Amount: $ PROPOSED INSURED: Proposed Borrower: GF No.: 03053985 Z4 uw (d) -. TEXAS SHORT FORM RESIDENTIAL MORTGAGEE POLICY OF TITLE INSURANCE (Form T -2R) w ` Policy Amount: $ PROPOSED INSURED: Proposed Borrower: (e) MORTGAGEE TITLE POLICY BINDER ON INTERIM CONSTRUCTION LOAN (Form T -13) Binder Amount: $ PROPOSED INSURED: Proposed Borrower: (f) OTHER Policy Amount: $ PROPOSED INSURED: 2. The interest in the land covered by this Commitment is: FEE pIIIPLE 3. Record title to the land on the Effective Date appears to be vested in: TRK INVESTMENTS, L.P. FORMERLY KNOWN AS TRK INVESTMENTS,, LLC 4. Legal description of land: Lot 1, Block "F ", of CRYSTAL PARK, an addition in and to the City of Round Rock, Williamson County, Texas, according to the map or plat thereof recorded in Cabinet I, Slides 146- -149, Plat Records, Williamson County, Texas. Page 2 — Schedule A — T-7 (Rev. 04/04/02) Form 1177 -2 Commitment No.: G.F. No.: 03053985 Z4 SCHEDULE B EXCEPTIONS FROM COVERAGE In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attorneys' fees, and expenses resulting from: 1. The following restrictive covenants of record itemized below (We must either insert specific recording data or delete this exception): recorded in Cabinet I, Slides 146 -149, Plat Records, under Document No. 9708898, Official Records, Williamson County, Texas, BUT OMITTING ANY COVENANT, CONDITION OR RESTRICTION, IF 2. Any discrepancies, conflicts, or shortages in area or boundary lines, or at e � nt t orptatrus ron or any overlapping of improvements. 3. Homestead or community property or survivorship rights, if any of any spouse of any insured. (Applies to the Owner Policy only.) 4. Any titles or rights asserted by anyone, including, but not limited to, persons, the public, corporations, governments or other entities, a. to tidelands, or lands comprising the shores or beds of navigable or perennial rivers and streams, lakes, bays, gulfs or oceans, or b. • to lands beyond the line of the harbor or bulkhead lines as established or changed by any government, or c. to filled -in lands, or artificial islands, or d. to statutory water rights, including riparian rights, or e. to the area extending from the line of mean low tide to the line of vegetation, or the rights of access to that area or easement along and across that area. (Applies to the Owner Policy only.) 5. Standby fees, taxes and assessments by any taxing authority for the year and subsequent years; and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership, but not those taxes or assessments for prior years because of an exemption granted to a previous owner of the property under Section 11.13, Texas Tax Code, or because of improvements not assessed for a previous tax year. (If Texas Short Form Residential Mortgagee Policy of Title Insurance (T -2R) is issued, that policy will substitute "which become due and payable subsequent to Date of Policy" in lieu of "for, the year and subsequent years. ") * 6. The terms and conditions of the documents creating your interest in the land. 7. Materials furnished or labor performed in connection with planned construction before signing and delivering the lien document described in Schedule A, if the land is part of the homestead of the owner. (Applies to the Mortgagee Title Policy Binder on Interim Construction Loan only, and may be deleted if satisfactory evidence is furnished to us before a binder is issued.) 8. Liens and leases that affect the title to the land, but that are subordinate to the lien of the insured mortgage. (Applies to Mortgagee Policy (T -2) only.) 9. The Exceptions from Coverage and Express Insurance in Schedule B of the Texas Short Form Residential Mortgagee Policy of Title Insurance (T -2R). (Applies to Texas Short Form Residential Mortgagee Policy of Title Insurance (T -2R) only). Separate exceptions 1 through 8 of this Schedule B do pot apply to the Texas Short Form Residential Mortgagee Policy of Title Insurance (T -2R). 10. The following matters and all terms of the documents creating or offering evidence of the matters (We must insert matters or delete this exception.): 11. Easement dated September 17, 1985, from Emkay Development Company, Inc. to Texas Power xi Light Company, recorded in Volume 1250, Page 591, Official Records, Williamson County, Texas. 12. Easement dated January 30, 1987, from Emkay Development Company, Inc., to Texas Power & Light Company, recorded in Volume 1483, Continued on next page Page 3 - Schedule B — T-7 (Rev. 04/04/02) Fnrm 1177 -0 Page 3 Policy No.: 0.3053985 Z4 G.F. No.: b Continuation of Schedule • 15. Rights of parties in possession. Continuation Form 2076 CONTINUATION PARAGRAPH 1 CONTINUED ANY, EASED ON RACE, COLOR, RELIGION, SEX, HANDICAP, FAMILIAL STATUS, OR NATIONAL ORIGIN UNLESS AND ONLY TO THE EXTENT THAT THE COVENANT, CONDITION OR RESTRICTION (a) IS EXEMPT UNDER TITLE 42 OF THE UNITED STATES CODE, OR (b) RELATES TO HANDICAP, BUT DOES NOT DISCRIMINATE AGAINST HANDICAPPED PERSONS. Page =58, Official Records, Williamson County, Texas. 13. 15' public utility easement along all lot lines as shown on plat recorded in Cabinet I, Slides 146 =149, Plat Records, Williamson County, Texas. 14. The rights of Brushy Creek Water Control and Improvement District No. 1A to levy tares and issue bonds. 116. Any visible and apparent easement, either public or private, the existence of which is not disclosed by the public records as defined herein, including, but not limited to, roads or utilities in use on the land. * including taxes levied by Brushy Creek Water Control and Improvement District No. 1A AND Northeast Williamson County Road District No. 1. NOTE: If the Company is furnished a satisfactory current survey (and is paid the required premium where applicable) to amend its "area and boundary" exception, Company may except to encroachments and other matters reflected by the survey. If Company's requirements and guidelines are met. Company may add the following after the description of those encroachments that are acceptable risks: Company insures the insured against loss, if any, sustained by the insured under the terms of this policy by reason of a final, non - appealable judgment of a court of competent jurisdiction that orders the removal of this improvement because it encroaches over or into (describe applicable building line or easement). Company agrees to provide defense to the insured in accordance with the terms of this policy if suit is brought against the insured to require the removal of this improvement because it encroaches as herein stated. Your Policy will not cover loss, costs, attorneys fees, and expenses resulting from the following requirements that will appear as Exceptions in Schedule B of the Policy, unless you dispose of these matters to our satisfaction, before the dale the Policy is issued: 1. Documents creating your title or interest must be approved by us and must be signed, notarized and filed for record. 2. Satisfactory evidence must be provided that: - no person occupying the land claims any interest in that land against the persons named In paragraph 3 0l Schedule A, - all standby fees, taxes, assessments and charges against the property have been paid, - - all improvements or repairs to the property are completed and accepted by the owner, and that all contractors, sub - contractors, laborers and suppliers have been fully paid, and that no mechanic's, laborer's or materialmen's liens have attached 10 the properly, - there is legal right of access to and from the land, - (on a Mortgagee Policy only) restrictions have not been and will ncl bo violated that affect the validity and priority of the insured mortgage 3. You must pay the seller or borrower the agreed amount for your property or interest. 4. Any defect, lien or other matter that may affect title to the land or interest insured, that arises or is filed after the effective date of this Commitment. 5. Vendor's lien retained in deed dated- December 13, 1995, executed by Emkay Development Company, Inc. to TRK Investments,, LLC, recorded under Document No. 9556225, Official Records, Williamson County, Texas, and being additionally secured by Deed of Trust of even date therewith executed by TRK Investments, LLC to Kara Fielder, Trustee, and recorded under Document No. 9556226, Official Records, Williamson County, Texas, securing a note of even date therewith in the principal amount of $1,660,000.00, payable to the order of BANK ONE, TEXAS, N.A., and subject to all of the terms, provisiors and conditions of said deed of trust, including but not limited to any additional existing or future indebtedness also secured by said deed of trust, Amended under Document No. 199962072, Official Public Records, Williamson County, Texas. (AS TO THIS LOT ET AL) 6. 1 ince this property is located in the Brushy Creek Water Control and Improvement District No. 1A, we must be furnished the Notice to Purchaser as required by Section 49.452 of the Texas Water Code. This notice must be given to the purchaser prior to the final closing of the proposed transacticm. 7. Assessment lien imposed by assessment order dated January 4, 1993. by the Northeast Round Rock Road District No. 1 and in judgment signed and entered under March 1, 1993, Cause No. 93-- 026 -C277, District Court of Williamson County, Texas. 8. The Seller must furnish to the Purchaser the notice required by Section 4.416A of Article 6702 -1, County Road and Bridges Act, pertaining to portion of this property being in the Northeast Williamson County Road District No. 1. A copy of such notice must be FILED with the COUNTY JUDGE of Williamson County, Texas. 9. It must be determined if this sale requires full payment of the road district assessment as to this property. Continued on next page GEORGETOWN TITLE COMPAN` INC. Page 4 - Schedule C (Rev. 1.1.93) SCHEDULE C Commitment No. By G.F. No. 03053985 Z4 Authorized Countersignature Valid Only If Schedule A and B Policy No.: 03053985 Z4 G.F. No.: C Continuation of Schedule Continuation Fnrm 907A CONTINUATION 10. We must be furnished a waiver as to the "rights of parties in possession" exception. 11: We must be furnished a copy of any Amendments to the partnership agreement of TRK Investments, L.P. since January 28, 1999, and proof the Partnership is in full force and effect. 12. AT TIME OF CLOSING THIS PROPERTY MUST HE UPDATED BY THIS OFFICE, AT WHICH TIME FURTHER REQUIREMENTS AND /OR EXCEPTIONS MAY HE MADE. GF 03053985 Z4 SCHEDULE D 1. Commonwealth Land Title Insurance Company Is a wholly owned subsidiary of LandAmerica Financial Group, Inc., a Virginia Corporation whose securities are publicly traded on the New York Stock Exchange. Commonwealth Land Title Insurance Company's officers and directors are as follows: Page 5- Schedule D Pram" 11177_41 IO.... OFFICERS DIRECTORS Charles H. Foster, Jr., Chairman & Chief Executive Officer Janet A. Alpert, President Theodore L. Chandler, Jr., Chief Operating Officer Ronald B. Ramos, Treasurer Wm. Chadwick Perrine, Secretary G. William Evans, Executive Vice President & Chief Financial Officer Kenneth Astheimer, Executive Vice President Ross W. Dorneman, Executive Vice President Russell W. Jordan, III, Executive Vice President David W. Koshork, Executive Vice President John M. Obzud, Executive Vice President Jeffrey C. Selby, Executive Vice President Donald C. Weigel, Jr., Executive Vice President Jeffrey D. Vaughan, Executive Vice President Janet A. Alpert Theodore L. Chandler, Jr. G. William Evans Charles H. Foster, Jr. Russell W. Jordan, III John P. Rapp Jeffrey C. Selby The shareholders, owners partners, or other persons having, ownin o 2. c�I1 P44Y' s je �F owners, 114e 4A�14r cdfe`gERt islujrI iIis1t4�17}tt�l9r260tl Rt e 5 21. follows: Claude A. Hays, Jr. The members of the Board of Directors and ' officers of the corporation are as follows: Michael S. Cumberland, Director - & President; Barbara A. Hays, Director & Secretary; David S. Hays, Director & Treasurer; Claude A. Hays, Jr Director and Chairman of the Board 3. You are entitled to receive advance disclosure of settlement charges in connection with the proposed transaction to which this commitment relates. Upon your request, such disclosure will be made to you. Additionally, the name of any person, firm or corporation receiving any sum from the settlement of this transaction will be disclosed on the closing or settlement statement. You are further advised that the estimated title premium' is: nDlf_I,I Al 5,205.00 Owner's Policy $ Mortgagee Policy $ 30205.0G Endorsement Charges $ Total 15% 85% Of this total amount : $ (or %) will be paid to the policy issuing Title Insurance Company; $ (or %) will be retained by the issuing Title Insurance Agent; and the remainder of the estimated premium will be paid to other parties as follows: Amount To Whom For Services $ (or %) $ (or %) $ (or %) * The estimated premium is based upon information furnished to us as of the date of this Commitment for Title Insurance. Final determination of the amount of the premium will be made at closing in accordance with the Rules and Regulations adopted by the State Board of Insurance. State of Texas County of Williamson REAL ESTATE CONTRACT ARTICLE I PURCHASE AND SALE THIS CONTRACT OF SALE ( "Contract ") is made by and between TRK INVESTMENTS, L.P., a Texas limited partnership, acting by and through TRK INVESTMENTS GP, INC., a Texas corporation, its General Partner, P. O. Box 2414, Round Rock, Williamson County, Texas 78680 (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 78664 (referred to in this Contract as "Purchaser"), upon the terms and conditions set forth in this Contract. By this Contract, Seller sells and agrees to convey, and Purchaser purchases and agrees to pay for, the tract of land containing approximately 8.68 acres of land situated in Williamson County, Texas, being more particularly described as follows: Lot 1, Block F, Crystal Park, a subdivision in Round Rock, Williamson County, Texas, according to the plat of record in Cab. I, Slide 146, Plat Records, Williamson County, Texas; 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. 2.01. The purchase price for the Property shall be the sum of Eight Hundred Twenty -Four Thousand Two Hundred Fifty -Nine and 74/100 Dollars ($824,259.74). Notwithstanding the foregoing, if the survey of the Property to be furnished by Seller to Purchaser, as provided below, reflects that the number of square feet comprising the Property is more or less than 378,100.80, the purchase price is to be increased or reduced by the product of $2.18 times the number of square feet of the Property more or less than 378,100.80. G. rkl /2-03-043 ARTICLE II PURCHASE PRICE Amount of Purchase Price Payment of Purchase Price 2.02. The Purchase Price shall be paid in cash at the closing. 1 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 Georgetown Title Company, 1717 N. Mays, Round Rock, Texas (the "Title Company ") 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 ten (10) days after Purchaser receives the Title Commitment that the condition of title as set forth therein 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, provided however that in no event shall Seller be obligated to expend any money or file any lawsuit in order to eliminate or modify any such matters. In the event Seller is unable to do so within ten (10) days after receipt of written notice, Purchaser shall have the option, exercisable at any time within seven (7) days after the expiration of such ten (10) day period, to declare this Contract to 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 within such seven (7) day period shall be deemed to be Purchaser's acceptance of the Title Commitment and approval of all matters shown thereon. Survey 3.03. Within thirty (30) days from the date hereof, Seller, at Seller's sole cost and expense, shall cause to be delivered a current plat of survey of the Property, prepared by a duly licensed Texas land surveyor. Such survey may be a current update of an existing survey of the Property. The survey shall be staked on the ground, and the plat shall show the location of all improvements, highways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights -of -way on the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the property except as shown thereon and shall set forth the number of total acres comprising the Property and the total number of square feet comprising the Property, together with a metes and bounds description thereof. Notwithstanding the foregoing, in the event that Purchaser shall elect to terminate this Contract for any reason, then Purchaser shall reimburse Seller for the reasonable cost incurred by Seller in obtaining such survey. New Surveys and Tests 3.04. Within sixty (60) days after the date hereof Purchaser is granted the right to conduct surveys and tests, including, but not limited to, an environmental survey, engineering /architectural surveys and feasibility study of the Property, and in this connection Purchaser or Purchaser's designated agents may enter upon the premises for purposes of soil analysis, core drilling, environmental survey, or other tests which may be deemed necessary to Purchaser or Purchaser's agents. Hit should be determined by Purchaser 2 in Purchaser's sole judgment that the Property is not suitable for the intended purposes, then and in this event, Purchaser may, on written notice to Seller received prior to sixty (60) days from the date hereof, terminate this Contract and it shall be null and void for all purposes and the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. If the written notice is not received by Seller within this 60 day period, the condition of the Property shall be deemed to be acceptable to Purchaser and any objection thereto shall be deemed to have been waived for all purposes. Purchaser shall promptly repair any damages or otherwise restore the Property to its original condition following any such entry upon or testing of the Property, and shall, to the maximum extent permitted by law, indemnify and hold harmless Seller on account of any claims, causes of action, damages or expenses (including attorney's fees) rising out of or relating to the acts of Purchaser, its agents, employees, contractors and consultants under the provisions of this Section 3.04. The foregoing obligations to repair and restore the Property and indemnify Seller shall survive any Closing under this Contract, and any termination of this Contract. 4.01. At the closing Seller shall: (i) Miscellaneous Conditions 3.05. Seller shall have performed, observed, and complied with all of the covenants, agreements, and conditions required by this Contract to be performed, observed, and complied with by Seller prior to or as of the closing. 3.06. In the event that Purchaser should terminate this Contract for any reason, Purchaser shall, simultaneously with such termination, deliver to Seller true, correct and complete copies of any and all reports, tests and other documents prepared by Purchaser or for its benefit, relating to the condition of the Property. ARTICLE IV CLOSING The closing shall be held at the office of the Title Company on or before April 30, 2003, or at such time, date, and place as Seller and Purchaser may agree upon (which date is herein referred to as the "closing date "). Seller's Obligations (a) Deliver to Purchasera duly executed and acknowledged Special Warranty Deed conveying indefeasible 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. 3 (b) Deliver to Purchaser a Texas Owner's Title Policy at Seller's sole expense, issued by 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. 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 outstanding road district assessments and any other special assessments shall be paid by Seller. 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 Seller; 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 The only brokers who have been involved in the negotiation and consummation of this Contract are Don Quick & Associates. Conditioned on the closing of the sale contemplated by this Contract, a commission in the amount of six percent (6 %) percent of the total sales price will be payable to Don Quick & Associates. This commission is to be payable in cash at the closing. If this Contract is terminated for any reason before closing, there will be no commission due or payable under the Contract All real estate commissions will be the sole responsibility of Seller, and Seller agrees to indemnify and hold harmless Buyer from any claims for these commissions. Each of the parties represents to the other that it has not incurred and will not incur any liability for brokerage fees or agent's commissions in connection with this Contract other than the liability of Seller as set forth in this paragraph. 4 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 Five Thousand Dollars ($5,000.00), 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 event Purchaser determines that the Property is not suitable for the intended purposes, and so notifies Seller as provided in Section 3.04, or one or more of the conditions to its obligations set forth in Article III have not been met, in the manner and as provided for in Article III, then the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. ARTICLE VII BREACH BY SELLER 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: (1) bring suit for damages against Purchaser; or (2) request that the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser. Purchaser waives all other remedies in the event of a default by Seller under this Contract. ARTICLE VIII BREACH BY 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 receive the Escrow Deposit from the Title Company and a cash sum from Purchaser equal to the reasonable cost incurred by Seller in obtaining the survey of the Property described in Section 3.03, such sums 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 the event Seller elects such remedy. Seller waives all other remedies in the event of a default by Purchaser under this Contract. ARTICLE IX MISCELLANEOUS Assignment of Contract 9.01. (a) This Contract may not be assigned without the express written consent of Seller. Survival of Covenants (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. 5 ' 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. 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. No Representation or Warranty (j) Seller makes no representation with respect to the Property. Seller has made no warranty in connection with this Contract. 6 "As Is, Where Is Sale" (k) THIS CONTRACT IS AN ARMS - LENGTH AGREEMENT BETWEEN THE PARTIES. THE PURCHASE PRICE WAS BARGAINED ON THE BASIS OF AN "AS IS, WHERE IS" TRANSACTION AND REFLECTS THE AGREEMENT OF THE,PARTIES THAT THERE ARE NO REPRESENTATIONS, DISCLOSURES, OR EXPRESS OR IMPLIED WARRANTIES, EXCEPT FOR THE WARRANTY OF TITLE STATED IN THE CLOSING DOCUMENTS. THE PROPERTY WILL BE CONVEYED TO PURCHASER IN AN "AS IS, WHERE IS" CONDITION, WITH ALL FAULTS. ALL WARRANTIES, EXCEPT THE WARRANTY OF TITLE IN THE CLOSING DOCUMENTS, ARE DISCLAIMED. The provisions of this paragraph will be included in the Special Warranty Deed with appropriate modification of terms as the context requires. Dated this /0 day of February, 2003. SELLER: TRK INVESTMEN S, L.P. V e Pre By: TRK � S,j GP, By: Charles R. ing 2301 N. IH 35 Round Rock, TX 7866 221 E. Main Street Round Rock, Texas 78664 7 [dent