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CM-04-09-045Request for City Council/City Manager Action etfc Please submit this form when placing items on the council agenda or when submitting an item to the City Manager for approval. Department: Legal Project Manager/Resource: Don Rundell Contact Person: Steve Sheets/Don Childs Project Name: 12" Gattis School Road Waterline ContractorNendor Name: Jose & Hermila Estrada Amount: $9,002.00 Is Funding Required? Council Agenda Item Yes n No ri Yes No n Council Meeting Date: Funding Source: Capital Project Funds (Self -financed Util.) Assigned Attorney: Don Childs (contract, a�� nt,a�ndp5ent,ch a er, purchase orde.) r..3 cc RECEIVEn cc° 1 4 taoa Submission to City Manager - Yes n No n (see required signatures below before submission to the City Manager) Agenda Wording: • Initial Construction Contract ❑ Construction Contract Amendment Change Order Change in Quantity Q Unforeseen Circumstances • Initial Professional Services Agreement ▪ Supplemental Professional Svcs. Agr. # ElPurchasing/Service Agreement ElPurchase Order Item(s) to be purchased: Amount X❑ Other (Please clearly identify action on lines below $9,002.00 Authorization for the City Manager to enter into a real estate contract for the purchase of a 0.082 acre waterline easement from Jose Estrada (Gattis School Waterline project, Parcel 1). For Submission to City Manager Onl Project Mgr. Signature: Dept. Director Signature: City Attorney Signature: City Manager Signature: x Date: Date: Date: Date: Approval is required for all items requesting City Manager's approv Finance Approval UV Finance -Date and Signature: ElPurchasing -Date and Signature: gladministration/cmgr-council action.xls 7-14-04 DATE: SUBJECT: ITEM: BLUE SHEET FORMAT September 13, 2004 City Manager - September 17, 2004 Authorization for the City Manager to enter into a real estate contract for the purchase of a 0.082 acre waterline easement from Jose Estrada (Parcel No. 1) for the 12" Gattis School Road Waterline. Department: Legal Staff Person: Steve Sheets/Don Childs Justification: Improved city utility services in central Round Rock. Funding: Cost: $9,002.00 Source of funds: Capital Project Funds (Self -financed Utility) Outside Resources: Sheets & Crossfield, P.C. Background Information: This waterline easement is being purchased for the appraised value of $9,002.00. Public Comment: N/A Blue Sheet Format Updated 01/20/04 REAL ESTATE CONTRACT State of Texas County of Williamson THIS REAL ESTATE CONTRACT ("Contract") is made by and between JOSE ESTRADA AND HERMILA ESTRADA, (referred to in this Contract as "Seller", whether one or more) and the CITY OF ROUND ROCK, TEXAS (referred to in this Contract as "Purchaser"), upon the terms and conditions set forth in this Contract. ARTICLE I PURCHASE AND SALE By this Contract, Seller sells and agrees to convey, and Purchaser purchases and agrees to pay for, the tract(s) of land described as follows: Waterline easement interest and temporary construction easement interest in the property described in Exhibit "A" attached hereto and made a part hereof for all intents and purposes hereunto and in any wise pertaining, showing a waterline easement being a 0.082 acre tract of land situated in the Wiley Harris Survey, Abstract No. 298, Williamson County, Texas, being a part of Lot 8 of Egger's South View Addition as recorded in Cabinet B, Slide 55 of the Plat Records of Williamson County, Texas; said 0.082 acre tract being more particularly described by metes and bounds as indicated. This purchase is 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 NINE THOUSAND TWO and no/100 Dollars ($9,002.00). Payment of Purchase Price 2.02. The Purchase Price shall be payable in cash at the closing. c PFDesktop\::ODMA/WORLDOX/O:/WDOX/CORK/UNL/GATTISWATERL/PARIESTRAL/CONTRACT/00070397.WPD/sls Ceti-of-ot-°cc ARTICLE III PURCHASER'S OBLIGATIONS Conditions to Purchaser's Obligations 3.01. The obligations of Purchaser hereunder to consummate the transactions 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 twenty (20) days after the date hereof, Seller, at Purchaser's sole cost and expense, shall have caused the Austin Title Company ("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. In the event that title to the property is not satisfactory to Purchaser, Seller shall promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser, or shall provide Purchaser with any assistance reasonably requested as necessary to eliminate or modify such matters. In the event Seller is unable to do so within thirty (30) days after receipt of notice, Purchaser may terminate this Contract and it shall thereupon be null and void for all purposes and the Escrow Deposit shall be forthwith returned by the title company to Purchaser, as provided in Article VII. Purchaser's failure to give Seller this notice shall not be deemed to be Purchaser's acceptance of the Title Commitment. Survey 3.03. Within ten (10) days from the date hereof, Purchaser, at Purchaser'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. 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 or adjacent to the Property, if any, and shall set forth the number of total acres comprising the Property, together with a metes and bounds description thereof. If any portion of the survey is unacceptable to Purchaser, then Purchaser shall give Seller written notice of this fact. Seller shall promptly undertake to eliminate or modify all the unacceptable portions to the reasonable satisfaction of Purchaser. In the event Seller is unable to do so within ten (10) days after receipt of written notice, Purchaser may terminate this Contract, and the Contract shall thereupon be null and void for all purposes and the Escrow Deposit shall be returned by the title company to Purchaser, as provided in Article VII. Purchaser's failure to give Seller this written notice shall not be deemed to be Purchaser's acceptance of the survey. 2 Miscellaneous Conditions 3.04. 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. ARTICLE IV REPRESENTATIONS AND WARRANTIES Seller hereby represents and warrants to Purchaser as follows, which representations and warranties shall be deemed made by Seller to Purchaser also as of the closing date, to the best of Seller's knowledge: (1) There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers; (2) Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the Property, or any part thereof; The Property herein is being conveyed to Purchaser under threat of condemnation. ARTICLE V CLOSING Closing Date 5.01. The closing shall be held at the office of Austin Title, Round Rock office, on or before August 20, 2004, or at such time, date, and place as Seller and Purchaser may agree upon, or within 10 days after the completion of any title curative matters if necessary for items as shown on the Title Commitment (which date is herein referred to as the "closing date"). Seller's Obligations at Closing 5.02. At the closing Seller shall: (1) Deliver to Purchaser a duly executed and acknowledged Waterline Easement in the form as set out in Exhibit "B" attached hereto conveying good and marketable easement interest to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions, except for the following: (a) General real estate taxes for the year of closing and subsequent years not yet due and payable; 3 (b) Any exceptions approved by Purchaser pursuant to Article III hereof; and (c) Any exceptions approved by Purchaser in writing. (2) Upon request by Purchaser, deliver to Purchaser a Texas Owner's Title Policy at Purchaser's sole expense, issued by Austin Title, in Purchaser's favor in the full amount of the purchase price, insuring Purchaser's easement interest in and to the Property subject only to those title exceptions listed herein, 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, provided, however: (a) The boundary and survey exceptions shall be deleted; (b) The exception as to restrictive covenants shall be endorsed "None of Record;" and (c) The exception as to the lien for taxes shall be limited to the year of closing and shall be endorsed "Not Yet Due and Payable." (3) Deliver to Purchaser possession of the Property. Purchaser's Obligations at Closing 5.03. At the Closing, Purchaser shall pay the cash portion of the purchase price. Prorations 5.04. General real estate taxes for the then current year relating to the Property shall be prorated as of the closing date and shall be adjusted in cash at the closing. If the closing shall occur before the tax rate is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the next preceding year applied to the latest assessed valuation. All special taxes or assessments to the closing date shall be paid by Seller. Agricultural roll -back taxes, if any, shall be paid by Purchaser. Closing Costs 5.05. All costs and expenses of closing in consummating the sale and purchase of the Property shall be borne and paid as follows: (1) Owner's Title Policy and survey to be paid by Purchaser. (2) Deed, tax certificates, and title curative matters, if any, paid by Purchaser. 4 (3) All other closing costs shall be paid by Purchaser. (4) Attorney's fees paid by each respectively. ARTICLE VI 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) enforce specific performance of this Contract; or (2) request that the Escrow Deposit shall be forthwith returned by the title company to Purchaser. ARTICLE VII 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, the sum being agreed on as liquidated damages for the failure of Purchaser to perform the duties, liabilities, and obligations imposed upon it by the terms and provisions of this Contract, and Seller agrees to accept and take this cash payment as its total damages and relief and as Seller's sole remedy hereunder in such event. ARTICLE VIII MISCELLANEOUS Notice 8.01. 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 8.02. 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 8.03. 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. 5 Legal Construction 8.04. 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 8.05. 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 8.06. Time is of the essence in this Contract. Gender 8.07. Words of any gender used in this Contract shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. Memorandum of Contract 8.08. Upon request of either party, both parties shall promptly execute a memorandum of this Contract suitable for filing of record. Compliance 8.09 In accordance with the requirements of Section 20 of the Texas Real Estate License Act, Purchaser is hereby advised that it should be furnished with or obtain a policy of title insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection. Effective Date 8.10 This Contract shall be effective as of the date it is approved by the Round Rock City Council, which date is indicated beneath the City Manager's signature below. Counterparts 8.11 This Contract may be executed in any number of counterparts. 6 Possession and Use Agreement 8.12 By signing this Contract, Seller agrees to allow Purchaser to use and possess the Property for the purpose of constructing and/or improving a public road and related facilities, upon full execution of this contract. SELLER: Hermila Estrada PURCHASER: CITY OF ROUND ROCK Date s Nuse, P.E. City Manager 221 E. MAIN STREET ROU ROCK, TE S 78664 Date: —O 7 AUSTIN SURVEYORS P.O. BOX 180243 AUSTIN, TEXAS 78718 2105 JUSTIN LANE #103 (512) 454-6605 Accompaniment to plat 1287jeh PARCEL 1 FIELD NOTES FOR 0.082 ACRES EXHIBIT All that certain tract or parcel of land situated in the Wiley Harris Survey, A-298, in Williamson County, Texas and being also a part of Lot 8 of Egger's South View Addition as recorded in Cabinet B, Slide 55 of the Plat Records of Williamson County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at a point on the Fact line of South Mays Street (U.S. Highway #81) for the Southwest corner of this tract from which point an iron pin found in the Southwest corner of the above mentioned Lot 8 bears S 02°04'50" E 85.08 feet. THENCE N 02°04'50" W with the East line of South Mays Street 15.23 feet to the Northwest corner of the said Lot 8 and the Southwest corner of Lot 9 from which point an iron pin found in the Northwest corner of Lot 7 bears N 02°04'50" W 100.00 feet. THENCE S 82°08'52" E 240.05 feet to a point on the West line of Cushing Street for the Northeast corner of the said lot 8 and the Northeast corner of this tract. THENCE S 00°28'27" W with the West line of Cushing Street 15.13 feet to the Southeast comer of this tract from which point an iron pin found in the Southeast corner of Lot 8 bears S 00°28'27" W 74.87 feet THENCE N 82°08'52" W 239.37 feet to the POINT OF BEGINNING, containing 0.082 acres of land, more or less. I, Claude F. Hinkle, Jr. , a Registered Professional Land Surveyor, do hereby certify that these field notes accurately represent the results of an on -the -ground survey made under my supervision during March of 2004 and are correct to the best of my knowledge and belief. These field notes are to be used only for a water line easement to the City of Round Rock. Any use by these or any other persons for any other purpose is expressly prohibited. Claude F. inkle, Jr. R.P.L.S. No. 4629 l2G i- per Date 1287.doc © Austin Surveyors 2004 a) fn �� t POINT OF N BEGINNING 0 U`i'—CID Sketch to accompany field notes for a 0.082 acre tract of land in the W. Harris Survey, A-298, in Williamson County, Texas 00'00. M..09.40.Z0 N Lot 9 S .. TiON SCALE 1" = 50' bearing basis grid North LEGEND o Iron pin set • Iron pin found 2'08'521- 240.05• tv L } cn TC Course T1 T2 N R2'08,521 W 239.37 0 Bearing S00'gw N 02'0 W w 30' tempora construction r- epsement Distance 15.13' 15.23' tO Field notes prepared File No.: 12871eh Designed 0y: skip Job No.: 1287-177 Drown Sr skip Dote: March 2004 Checked 8r Seale: 1-= 50' Revised: AUSTIN SURVEYORS Lane 2105 Tustin #103 Austin, Texas 7875 ® Austin Surveyors 2004 7 THE STATE OF TEXAS COUNTY OF WILLIAMSON WATERLINE EASEMENT KNOW ALL BY THESE PRESENTS: That JOSE ESTRADA AND WIFE, HERMILA ESTRADA, hereinafter referred to as Grantor (whether one or more), ("GRANTOR"), for and in consideration of the payment of TEN and NO/100 ($10.00) DOLLARS and other good and valuable consideration in hand paid to GRANTOR by the CITY OF ROUND ROCK, TEXAS, a home rule municipal corporation situated in the County of Williamson, State of Texas, ("GRANTEE"), the receipt of which is hereby acknowledged, has GRANTED, SOLD and CONVEYED and by these presents does GRANT, SELL, and CONVEY unto Grantee certain rights and interests in the nature of a perpetual waterline easement to construct, install, operate, maintain, inspect, enlarge, reconstruct, rebuild, relocate and remove a water distribution system and waterlines, together with all necessary lines, pipes, conduits, valves, vaults, manholes, ventilators, and other equipment, improvements and appurtenances thereto, in, upon, over, under, and across the following described property, to -wit: See Exhibit "A" attached hereto and made a part hereof for all intents and purposes hereunto and in any wise pertaining, showing a waterline easement being a 0.082 acre tract of land situated in the Wiley Harris Survey, Abstract No. 298, Williamson County, Texas, being a part of Lot 8 of Egger's South View Addition as recorded in Cabinet B, Slide 55 of the Plat Records of Williamson County, Texas; said 0.082 acre tract being more particularly described by metes and bounds as indicated. This conveyance is made and accepted subject to any and all conditions and restrictions, if any, relating to the hereinabove described property to the extent, and only to the extent, that the same may still be in force and effect and shown of record in the office of the County Clerk of Williamson County, Texas. Except as otherwise noted, the easement, rights and privileges herein granted shall be perpetual; provided, however, that said easement, rights, and privileges shall cease and revert to Grantor in the event the waterline and related systems are abandoned, or shall cease to be used, for a period of five (5) consecutive years. The easement, rights, and privileges granted herein shall be and are exclusive, and Grantor covenants that it will not convey any other easement or conflicting rights within the area covered by this grant without the express written consent of Grantee, which consent shall not be unreasonably withheld. Grantee shall have the right to review any proposed easement or conflicting use of the easement to determine the effect, if any, on the waterline contemplated herein. Prior to granting its consent for other easements, Grantee may require reasonable safeguards to protect the integrity of the waterline. Grantor further grants to Grantee: O:\wdox\CORR\unl\gattiswaterl\parl estrada\easement\00070369. DOC the right to grade the easement for the full width thereof and to extend the cuts and fills for such grading into and on the land along and outside the easement to such extent as Grantee may find reasonably necessary; the right of ingress to and egress from the easement over and across Grantor's property by such route or routes as shall occasion the least practicable damage and inconvenience to Grantor; the foregoing right of ingress and egress includes the right of the Grantee to disassemble, remove, take down, and clear away any fence, barricade, or other structure which obstructs, prevents, or hinders Grantee's ingress to and egress from the Grantor's property, and should Grantee deem it necessary to so disassemble, remove, take down, or clear away any such fence, barricade, or other structure, Grantee shall, as soon as is reasonably feasible, replace or restore Grantor's property to as similar a condition as reasonably practicable as existed immediately prior to Grantee's actions pursuant to this provision, unless said fence, barricade, or other structure is inconsistent with the rights conveyed to Grantee herein; the foregoing right of ingress and egress applies during the period of construction as well as otherwise; (c) the right from time to time to trim and to cut down and clear away any and all trees and brush now or hereafter on the easement and to trim and to cut down and clear away any trees on either side of the easement which now or hereafter in the opinion of Grantee may be a hazard to any the pipeline, valves, appliances or fittings, by reason of the danger of falling thereon or root infiltration therein, or which may otherwise interfere with the exercise of Grantee's rights hereunder; provided, however, that all trees which Grantee is hereby authorized to cut and remove, if valuable for timber or firewood, shall continue to be the property of Grantor, but all tops, lops, brush and refuse wood shall be burned or removed by Grantee; (d) the right to install, maintain and use gates in all fences which now cross or shall hereafter cross the easement; and (e) the right to mark the location of the easement by suitable markers set in the ground; provided that such markers shall be placed in fences or other locations which will not interfere with any reasonable use Grantor shall make of the easement. (f) Grantor further grants and conveys to Grantee the right to temporarily use the property adjacent to and parallel to the Southern boundary of the easement area described herein and as shown on Exhibit "A", as may be reasonably necessary to construct and install the facilities described above. In no instance shall Grantee be entitled to use more than thirty (30) feet extending from the current Southern boundary of the easement(s) as described on Exhibit "A". Upon completion of the construction and installation of the facilities within the easement area, Grantee shall return this temporary construction area to the same or substantially similar condition as existed prior to these activities. Grantee hereby covenants and agrees: 2. (a) Grantee shall not fence the easement; (b) Grantee shall promptly backfill any trench made by it on the easement and repair any damage it shall do to Grantor's private roads or lanes on the lands; (c) Grantee shall indemnify Grantor against any loss and damage which shall be caused by the exercise of the rights of ingress- and egress or by any wrongful or negligent act or omission of Grantee's agents or employees in the course of their employment. Grantor also retains, reserves, and shall continue to enjoy the surface of such easement for any and all purposes which do not interfere with and prevent the use by Grantee of the easement, including the right to build and use the surface of the easement for drainage ditches and private streets, roads, driveways, alleys, walks, gardens, lawns, parking areas and other like uses and/or to dedicate all or any part of the surface of the property affected by this easement to any city or county for use as a public street, road or alley; provided Grantor shall not erect or construct on the easement any building or other structure such as a patio, swimming pool, sport court, storage shed, accessory building, barbeque pit or similar structure, or drill or operate any well, or construct any reservoir or other obstruction on the easement, or diminish or substantially add to the amount of soil covering the pipelines. Grantee shall not be responsible or liable for the removal, repair or damage to any property, structure, building, or other use inconsistent with the rights conveyed to Grantee by the easement. Provided however, before constructing any improvements, at least ten (10) days written notice shall be provided to Grantee of the general plans of the improvement to be constructed on the easement, and Grantor must first obtain the consent and approval from Grantee of the construction and location of any improvements within the easement. It is understood and agreed that any and all equipment and facilities placed upon said property shall remain the property of Grantee unless same are abandoned, or shall cease to be used, for a period of five (5) consecutive years. Grantor hereby dedicates the easement area as a waterline utility easement for the purposes stated herein. TO HAVE AND TO HOLD the rights and interests described unto Grantee and its successors and assigns, forever, and Grantor does hereby bind itself, its successors, assigns and legal representatives to warrant and forever defend, all and singular, the above-described easement and rights and interests unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming, or to claim, the same or any part thereof. IN WITNESS WHEREOF, Grantor has caused this instrument to be executed on this the day of 2004. GRANTOR: J161 Ct. st da .a6464,- Hennila Estrada ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF Vi/itt/p7Sk. BEFORE ME, the undersigned authority, on this day personally appeared Jose Estrada and Hermila Estrada, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed said instrument. GIVEN under my hand and seal of office on this day . /, 2004 4 .. ANA MARIA RAMIREZ 47i ! *? NOTARY PUBLIC t�9 AP i State of Texas •ate+ Comm. Exp. 11-03-2007 a AFTER RECORDING RETURN TO: Sheets & Crossfield, P.C. 309 East Main Street Round Rock, TX 78664