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R-2014-1641 - 7/24/2014RESOLUTION NO. R-2014-1641 WHEREAS, the City desires to purchase a tract of land described as Lot 1-A Chisholm Valley South, Section 16, located at 300 Old West Drive, for the construction of a fire department facility, and WHEREAS, Janway, LLC, 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 Janway, LLC, for the purchase of the above described Property, a copy of said Real Estate Contract being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was 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 24th day of July, 2014. G� �i tk City of Round Rock, Texas CfEaEzC�� vW 4 TE n/lay� RIP -Te -M ATTEST:�I A Qa W t/ SARA L. WHITE, City Clerk 0112.1400; W307397 EXHIBIT «A„ MEAL ESTATE CONTRA.C�' 1. P ' 13 . The parties to this Contract are: a. ,seller., Jainvay, LLC VQ 904 Golden Bear Cove VJNIC Round Rock, TX 78151- 18664 b. ' i rs, City of Round Rook 22113. Main St. Round Rock, TX 78664 2. MOt'BnTX. Seller agrees to soil and convey, and Purchaser agrees to purchase and pay for certalit ,tial property in Round Rock, Williamson County, Texas, described as follows: Lot 1-A Chisholm Valley South, Section 16 located at 300 Old West Dr., Round Rock, Texas, containing approximately 1.000782 acres; together with all of Seller's rights and appurtenances to tine real property, including, without limitation, any right, title, and interest of Seller in and to ally and all casements, and adjacent, streets, roads, alleys, or rights-of-way (the "Property'). 3. PURCHASE ZMCE. Purchaser agrees to pay as the purchase price for the Property the suin of $270,000.00 In cash at Closing. 4. ESCROW DEPOSXT. Upon execution of tills Contract, by both Seller and Purchaser, Purchaser agrees to deliver a cash Escrow Deposit lit the amount of $2,200.00, to be held lit escrow by the Title Company as Escrow Agent pursuant to the terms of tills Contract. Failure by Purchaser to thncly deposit the Escrow Deposit with the Title Coitipany sliall result in tine autontatio termination of tills Contract, and neither party hereto shall have any fitrther obligation thereunder. If requested by Purchaser, the Escrow Agent is authorized to place the Escrow Deposit in an interest bearing account at a financial Institution whose accounts are insured by an agency of the Moral government, and the interest earned on such Rinds shall be recognized by Purchaser for federal Income tax purposes, but shall be paid to the party entitled to receive the Escrow Deposit lander the terms of this Contract. Real estate ooatmet• sis draft- 7.07.14 300 old hest (00306483MOM) 5. &MR13NDENT CO TRA.C'r CONSIDERATION. On or before the Effective Date, Purchaser shall doliver to Seller In cash the sum of $500.00 (tile "independent Contract Consideration"), which amount leas been bargained for and agreed to as consideration for Purchaser's exclusive option to purchase the Property and the right of Investigation and inspection granted heroin, acid for Seller's execution and delivery of this Contract. The bidependent Contract Consideration is in addition to and independent of all other consideration provided In this Contract, and is nonrefundable In all events. 13owevor, at Closing, the Independent Contract Consideration shall be credited towards tine Prurhase Price. a. Title C,omtnitinent. Within fifteen (15) days after ttie Effective Date, Seller shall deliver or cause to be delivered to PuMiaser, at Seller's cost, a Coniniitinent for Title Insurance ("Title Commitment") f%om Independence Title Company at 101 E. Old Settler Blvd., hound hock, TX 78664. Tile Title Commitment sliall set forth the status of the title of tine property and show all liens, clainis, encumbrances, easements, rights-of- way, encroaclunents, reservations, restrictions, and any other matters affecting the Property. The Title Company shall furnish a copy of all docunnents referred to In the Title Coininihnnent, including, but not limited to, deeds, lien instruments, plats, reservations, restrictions, and casements. b, St uryey Within thirty (30) days after the Effective Date, Purchaser shall cause to be prepared, at Purchaser's cxpenso, a current survey of the Property acceptable to tine title company for the purposes of Issuing the Title Coniniltnient ("Survey") prepared by a registered or licensed public surveyor. Tile Survey (s) shall Include: (I) tine perimeter boundaries and dimenslons of the Property; (11) tine location of all improvements, any casements, set baok lines, enoroachnieints, overlaps, roadways or waterway; raid (iii) the location of any flood plain which exists on the Property or any portion thereof. e, )teylew of Title CQ=11nient acid SurveX. Purchaser shall have fifteen (15) days after receipt of tine Title Conun(tnient and Survey, In which to exannlue those docunnents and to specify to Seller those items reflected 1horeon Which Purchaser will accept as permitted exceptions to title ("Permitted Exceptions"), mid those items which Purchaser finds objectionable ("Title Objections"), Seller, at Its discretion, niay correct or remove all Title Objections, give Purchaser written notice thereof, and deliver an amended Title Coniinifnnent and Survey reflecting the correction or deletion of such natter. If Purchaser does not deliver to Seller fifteen (15) days after receipt of tine title conunitnient and supporting documents and updated survey, a written notice specifying -20 those items which are Permitted Exceptions and Title Objections within the above-stated time period, then all of the items reflected on the Title Commitment shall be considered to be Permitted Bxceptions. d. Ujim ected Titie Ob ecilons, If Seller falls to cause all of the Title Objections to be corrected within. fifteen (15) days after receipt of Purchnscr s notice to Seller of tine Title Objections, Seller shall give written notice to Purchaser that Seller cannot or will not correct or remove all of the Title Objections, and Purchaser shall lino file following rights only; (1) Purchaser may terminate this Contract by giving Seller written notice thereof within fifteen. (15) days after receipt of written notice from Seller, In which event the Escrow Deposit shall be returned to Purchaser, and both parties shall be released from all Millier obligations under this Contract; or (2) Purchaser may elect to purchase the Property subject to the Title Objections not so corrected or removed, iii which event the tuicorrected and unrenioved Title Objections shall be deemed waived by Purchaser and sliall thereafter be Permitted Exceptions under this Contract. 7. 9EA�'Y PB OD, Purchaser shall have until ninety (90) days after the Effective Date (the "Feasibility Period"), for the right of Investlgation and inspection of the Property to determine whether or not Purchaser desires to proceed with the purchase of the Property. a, &coss and Indemnl . Pin-chaser And Purchaser's agents shall have the right of access to the Property during the Feasibility Period for the purpose of conducting such Investigation and Inspection. Purchaser agrees to provide Seller with copies of all written tests, studies, investigations, and other reports conducted by Purchaser, Pureliaser's engineers, and other representatives of Purchaser pertainhig to the Property. Purchaser shall not cause or permit dainage or figmy to be done to the Property and Purchaser shall repair any damage or hou y to the Property resulting floor Purchaser's investigation and Inspection of the property. Purchasor shall indemnify and hold harmless Seller on account of any claims, causes of action, damages, costs and expenses (including attorney's fees) Arising out of or relating to the acts of Purchaser, Its agents and employees under the provisions of this section. This Indemnity shall survive the ternnination of this Contract. 3 b. I&aminatioln of Contraq If during or upon expiration of the Feasibility Period Purchaser determines not to go forward and close this transaction, then Purchaser shall, no later than the date of expiration of the Feasibility Period, give Seller written notification of such. Howover, if Purchaser does not timely provide written notice to Seller of Purchaser's acceptance or non-acceptance of the Property by tine expiration of the Feasibility Period by such date then it shall be conclusively deemed that the Property Is suitable for Purchaser's intended use. If Purchaser gives timely written notice of its non-acceptance of the Properly, Seller nnay retain the Independent Consideration, but the Earnest Money shall be roAmded to the Purchaser, and both parties shall be released from all ftuther obligations tender this Contract. It Is agreed by tine parties that in tine event that this Contract Is terminated atter (lie expiration of the Feasibility Period, for any reason other than a default by Seller, tho Earliest Money (which will include the Additional Earnest Money, If any) shall be retained by Seller as liquidated damages. 8. CONDEMNATION. Ili the event of a taking by condemnation or similar proceedings or actions of only a portion of the Property, Purchaser shall have the option to terminate this Contract upon written notice to Seller prior to Closing, in which event tho Earliest Money shall be promptly reflnnded by the Title Company to Purchaser, and neither Purchaser nor Seller shall have any Airther rights or obligations hereunder except with slospeet to any walvers and releases, warranties, representations, obligations or Indemnities which specifically survive termination of this Contract. If Purchaser does not exercise its option to so terminate this Contract, then the Contract shall remain illi hill force and effect and Seller shall assign or pay to Purchaser at Closing Seller's interest in and to any and all condemnation nwards or proceeds from any such proceedings or actions in lieu thereof. 9. RB&CLO8RLG REPRESEN ITATIONS OF S 9 Seller has not made any representations or warranties of any kind to Purchaser not expressly contained In this Contract, Whore the tenors "to the best of Seller's knowledge" or words of similar import are used herein, It shall mean Seller's actual, current knowledge and not any constructive or imputed knowledge. Moreover, no inference or Implication shall be drawn that Seller has made any hidependent I nvesdgation with respect to the subject of the representation or warranty based on knowledge, and purchaser agrees that Seller has no such duty. Subject to the foregoing, Seller represents, covenants and warrants as follows: a. Tho person signing this Contract has the ftnll right, power and authority to enter Into this Contract on behalf of Seller. ..d" b. The Property Is free and clear of all mechanic's liens, liens, mortgages, or encumbrances of any natute except those which are to bo satisfied on or before Closing. c. Seller has not entered into an eamest money contract with any other potential Purchasers. d. There is no sult, action, legal or other proceeding pending, or to the best of Seller's knowledge, threatened, which affect the Property. e. Seller has no knowledge of any pending or threatened requests, applications or proceedings to alter or restrict the zoning or other use restrictions applicable to tiie Property; Seller has received no notice from any municipal, state, federal or other governmental Authority of zoning, building, fire, water, use, health, environmental or other statute, ordinance, code or regulatory violations issued hi respect of the Property which have not been heretofore corrected. C Seller lies never, nor, to Seller's best knowledgo, has miy previous owner of the Property or any other party ever generated, stored or disposed of any Hazardous Substances oil the Property or transported froin the Property to any other location. Seller shall upon the effective date hereof, deliver to Purchaser all written soil, utility, enviroiunental and feasibility reports previously prepared relating to the Property, which are III the possession or under the control of Seller. "Hazardous Substances" means any substance which is (1) designated, defined, elassif3ed, or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant, or contaminant under tiie Resource Conservation and Recovery Act quid/or the Comprehensive Environmental Response Compensation and Liability Act, (ii) petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PDB's, (Iv) lead, (v) frInble asbestos, (vi) #ianunable explosives, (vii) infectious materials, or (vill) radioactive materials. g. Seller lies not retalued any person or ficin to file a notice of protest against, or to commence any action to review, any real property tax assessment against the Property or any portion thereof and, to Seller's best knowledge, no such notion has been taken by or oil behalf of any other party. h. Seller has not received any notice of any condemnation or shnilar proceedings having been instituted or threatened against the Property or any part thereof nor, to Seller's best knowledge, is any such proceeding threatened or contemplated of which Seller has not recelved formal notice. "5M 1. Theiv are no outstanding written or oral leases or agreements relating to the use or possession of the Property. J. Seller will not, without the prior written consent of Purchaser, permit ally struettiml modifications or additions to the Property. k. Seller will promptly pay and discharge, all ownership, leasing, operating, management and maintenance fees, costs and expenses lncu red with respect to periods prior to the Closing, speeificaliy including, without limitation, costs and expenses relating to materials supplied and labor performed. 1, At Closing, Seller will have good and indefeasible title to the Property, subject only to the Permitted Exceptions and matters of record in the real property records of the county whero the Property is located. in. Thero are no partles in possession of any portion of the Property excopt for lila Seller. To the bast of Seller's knowledge, ere are no adverso parties in possession of ably portion of the Property whatsoover. 31. All assessments, payback agreements or other charges for utilities, roads, or the widening of such roads, or any other fees Imposed by any governmental or quasi- goverrunental autitority with respect to the Property which are duo and payable have been paid in AM and Seller has Mowledge of any future assessments or fees that may become due and payable. 10. ARE-CLO-81kM R13MENTATIONS OF MMSER, a. Rurchaser's Authority. Tile person signing this Contract has the Rill right, power and authority to enter into this Contract on behalf of Purchaser. b. Sipils. Prior to Closing, no sign shall be erected on the Property without Seller's prior written consent. 11. CLOSM. a. pate and Place. The Closing of the sale of the Property by Seller to Purchaser shall occur on or before thirty (30) days alter tho explr-ation of the Feasibility Period. The Closing shall occur In tite offices of the Title Company. Purchaser shall have the right to »6. extend the Closing Date for up to thirty (30) clays if funding from tho sale of bonds has not been received by the scheduled Closing Date. b. Super's OW[gations at Closinu, At the Closing, Seiler, at Seller's sole cost and expense, shall deliver, or cause to be delivered, to Ptuvhnscr the Following: (1) Sugelfil Wa=gy Deed, Seller shall execute and deliver to the Title Compffily for recording a Special Warranty Deed conveying the Property to Puroliaser, subject to the Permitted Exceptions and all approved easements and restrictions of record Which affect the Property. (2) Qwner's Title Policy. Seller shall cause the Title Company to issue and deliver to Purchaser an owner's policy of title Insurance ("Owner's Titto Policy") in the anzotmt of lite Purchase Price insuring that Purchaser is owner of the property, subject only to the Permitted Exceptions to be attached to the Deed as an Exhibit, and the standard printed exceptions included in tine then current Owner Title Policy form promulgated by the State Board of insurance. Tile standard exception for standby fees and taxes shall be limited to the year hi which the Closing occurs. (3) -Cerjificato of Non -Forel ng Stafus. Seller shall deliver to Purchaser an affidavit on behalf of Seller certifying the non-forolgn status of Seller. (4) CloshiS Statonen . Soller shall execute and deliver to Purchaser mid to the Title Company the closing statement in the foin to be provided by tine Title Company with the Purchase Price, closing costs, prorations and credits provided for in tills Contract. (5) Qther Xnstraittents. Seller shall execute and deliver stiell other documents as are customarily executed In Texas In comection with the conveyance of real property, including all required releases, certificates, affidavits, and tiny other histruments required by the Title Company. (G) ��. Seller shall deliver possession of the Property to Purchaser on tine Closing Date. (7) Aggillea Eroperty RAglits. If applicable, Seller shall assign any ancilla:y Property Rights to the Property width Sellers owns and which the'I'Itle Company deenns customary to transfer, .. 7 r c. Rarcl)ascr's Obllga�igns at Closing. (1) EM;gent of Purphase Price. At the Closing, Purchaser shall pay the cash portlon of the Purehnse Price, subject to any adjustments for prorations and other credits provided for lit this Contract. (2) Agf&ptance of Documents. Purchaser shall accept all docuntonts executed and delivered by Seller and the conveyances, transfers and assignments evidenced thereby, and shall oxeci to and deliver all such documents that require Ptucliasor's execution. (3) ertificate of Autliorltv_. Purchaser shall deliver to Seller a certificate of authority on behalf of Purchaser authorizing the transaction described In this Contract and the execution of the documents by the appropriate person, In form and substance reasonably requIred by Seller. (4) Closing -Statement. Purchaser shall oxecuta and deliver to Seller and to the Title Company the closing statement In the form to be provided by the Title Company with the Purchase Price, closing costs, prorations and credits provided for In this Contract. d. Tgg_Emmflon. Real estate, ad valorem, and other state, county and municipal taxes, charges and assessments (special or otlionvise), on the basis of the calendar year for which tho same lige levied, imposed or assessed, and regardless of when the same become a licit or are payable, shall be adjusted between Seller And Purchaser And shall be prorated on a per diem basis as of midnight of the day preceding the date of Closing. If the rato of any such taxes, rents, charges or assessments sliall not be fixed prior to the Closing, the adjushnent thereof at the Closing shall bo upon the basis of the rate for the preceding calendar year applied to the latest assessed valuation (or other basis of valuation) between Seller and Purchase, If necessary, %vlien the actual tax figures are available. e. Closing Cosh. Seller Arid Purchaser each agree to pay the following costs at the Closing; (1) Paid By Seller. Seller agrees to pay the cost of lite Owner's Title Policy and any endorsements, the cost of preparing the Speclal Warranty Deed And othor conveyance doctutients; the cost of preparing and recording any releases And other documents necessary to convey the Property In accordance with this Contract; one-half "8- (1/2) of any escrow or closing fee charged by the Title Company; and any other slinniiar closhig costs customarily paid by a seller of coal property. (2) Enid By PurchAsel•. Purchaser agrees to pay the cost of the survey, recording fees, copies of restrictions and easements, expenses stipulated to be paid by Purolnaser under other provisions of the Contract, and one-half (1/2) of any escrow or closing fee charged by the Title Company and any other shnilar closing costs customarily paid by a purchaser of real property. a. ruAr iaser's Default and Seller's Remedies. If Ptuchaser Is In default under this Contract, Seller may, at Seller's sole option and as Seller's solo remedy, terminate tills Contract by written notice to Purchaser and receive the Escrow Deposit and Additional Escrow Deposit (whleh shall be delivered to Seller by the 'Title Company on receipt of written notice from Seiler that Purchaser has defaulted under this Contract), It being agreed betweern Purchaser and Seller that such amount shall be liquidated damages for a default of Purchaser under this Contract because of the difficulty, hnconvenlence, and uncertainty of ascertaining actual damages for such uncertainty of aseertainhng actual damages for such default. This limitation of remedies provision shall not apply to or affect Purchaser's indomitles of Seller ht this Contract. b. 09jig :'s Defaults andRare Bur's Rowdles. If Seller is In default under this Contract, Purchaser may, at Purchaser's sole option and as Purchaser's solo remedy, do either of (lie followhig: (1) terminate this Contract by Nvrltten notice delivered to Seller on or before the (late of Closing and receive the Escrow Doposit, which shall be delivered to Purchaser by the Title Company on receipt of written notice from Purchaser that Seiler has defaulted under this Contract, or (2) enforce specific performance of this Contract against Seller, provided, however, that Purchaser's right to enforce specific performance against Seller shall be subject to Purchaser's tendering performance, including but not Ilinited to the payment of the Cash Purchase Price, c. Atlorne's Fog&. If either party to this Contract dofaults fit the performance required hereunder, and the non-defaulthng party employs nit attorney to enforce the tennis hereof, such non -defaulting party shall be entitled to reasonable attorney's fees from the defaulting party. -9- a. Brokers, Seller represents that it has not dealt with any real estate agent, salesperson, broker or f"nider In commotion with this Contraot or the purchase of the Property, except for Jcrel Choate, Retail Solutions ("Sellor's Broker'). Purchaser represents that it has not dealt with any real estate agent, salesperson, broker or Mider in connection with this Contract or the purchase of the Property, except for Mike Freeman, Mike Freeman Properties eTurehnsor's Broker"). I anonly If the Closing occurs in h erns of this Contract dells •° 1 r-eert�missirnrta-be � 1t er a accordance with the t �-��"-a-d Q �' e@-�—t ker and 3% to Purchaser's Broker, at Closing. If an Se�lers� pre. exi V�j h3 commission is due herehl, the commission shall be paid directly to the tensed Real �QrG WAY- CpmMzsS41i Estate Broker and not to the salesperson (if Seller's Broker Z00%olim keris a on payment Is licensed salesperg011�. If tris C103h1g (108$ 1tOt OCCIII, tll6ll Svn11 as Ulgnature arred or due, Neither Broker Is a party to tills Contract and neither Broker's consent or is required to amend or terminate this Contract. Purchaser and Seller agree to Setts�,, growindemnify, defend and hold harmless the other party 11oni and against any and all a 5/0 brokerage and finder's fee clahns, losses, damages, costs or expenses arising out of or Corm'nissioresulting from any agreement, arrangement or understanding made or alleged to have to be been made by 111e Indenulifying party. The representations and Indemnifications In this 2% �d paragraph survive each Closing and the terminatlon of this Contract. Welters F,roiGt �� WAIS b. Notice, As required by the Texas Real Bstate License Act, any broker has advise Purchaser that Purchaser should have the abstract coverhlg the Property examined by an attorney of Purchaser's own selection, or that Purchaser should be furnlshed with or obtain a policy of title insurance. By signing this Contract, Purchaser acknowledges receipt of this notice. 14. WSCULAN-139 S. a. ss gcunent of Contract. This Contract may not be assigned by Purchaser without the prior written consent of Seller. b. S5uryival of Covenants. Any of the representations, warranties, covenants, and agreements of the parties, as welt as any rights and benefits of the parties, pertaining to a period of thne following the Closing shall survive the Closing and shall not be merged therein. -10- c. Notlog. Any notice mquired or permltted to be delivered tinder this Contract shall be deemed received on the earlier of (1) actual receipt by inall, Federal Express or other overnight delivery service, telecopy, or hand delivmy, or (ii) three (3) business days after being sent by United • States mall, postage prepaid, certified mall, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address stated In Section 1. Copies of all notices shall also be sent concurrently to Seller's or Purchaser's attorney, as appropriate, at the following addresses: Seller's Attorney; 00—Teleplione Nwnber; Lmahl; Purchaser's Attorney; Steve Sheets 309 B. Main St. Round Rock, TX 78664 Telephone Nwnber: (512) 255-8877 steve �r scrrlaw.can w A party may change Its address or the address of its attomoy for notice upon written notice to the other party pursuant to the terms liereof, d. _Mas Law to Angle. This contract shall be consulted under and In accordance with the laws of the state of texas, and all obligations, of the parties created by this contract are performable In Williamson County, Texas, which Is the county of jurisdiction and venue for all disputes arising hereunder. o. Wes Bound. Tills Contract shall be bindhig upon and In uo to the benefit of (lie parties to this Contract and their respective holrs, executors, administrators, legal representatives, successors and assigns, subject to the limitations hi paragraph 16a. f. Laal Construction. Ili case any one or more of the provisions contained In tills Contract shall for any reason be lield to be invalid, illegal, or unenforceable in any respect, such invalidity, Illegality, or unenforceability shall not affect any other provision of the Contract, and tills Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained hi tho Contract. g. Nor , reQ emmts Superseded. This Contract constitutes the sole and only agreement of the parties to the Contract and supersedes any prior widerstanding or written or oral agreements between the parties concerning the purchase of the Property, b. .32 "i ler. Words of any gender used in this Contract shall be held and constnied to Include any othor gender, and words In the singular number shall be held to include the pleural, and vice versa, unless the context requires otherwise. i. effective bale. Tito Motive Date of this Contract shall be the date tiie Contract is escrowed with tho title company together with the Earnest Money. J, Ihne of Essenca. Calendar Days and Deadllues. As used herein, "days" shall iuean and rofer to calendar days but if a deadline falls or notice Is required on a Saturday, Sunday or legal banking holiday, tine deadline or notice shall be extended to the next calendar day wllich is neither a Saturday, Sunday nor a legal banking holiday, Time Is of the essence for performance of all conditions and obligations guider tluls Contract. k. M,jltinle Coun Lrparts. Counterparts of tills Contract may be executed In one or more counterparts, and all so executed shall constitute one (1) agreement, binding upon the parties ltereto, and notwithstanding that all of the parties are not signatories to the same counterparts. (SIGNATURES ON FOLLOWI O PAGE) «12M Executed by Sollor on July 2014f 2014. SELLERS ' JANWAY, LLC BY: - Executed by PurchaBor on duly, 2014. PURCHMERt CITY of ROUND ROCK, TBXAS BY.- Alan Y:Alan McGraw, Mayor .-13.. V ACKNOMPLEDGEWNT BY TITLE COMPANY Title Company executes this Contract solely for the purpose of: (1) Acknowledging that recolpt of the Contract and the Deposit and (ii) setting forth the Effective Date. TITLE COMPANY hulependenco Title Company Effective Date July , 2414 By: Print Mum Title: -14-