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R-03-12-18-8A1 - 12/18/2003RESOLUTION NO. R -03-12-18-8A1 WHEREAS, the City desires to purchase a 75.874 acre tract of land for additional parkland, and WHEREAS, Sadie Wall, individually, and as Executrix of the Estate of Oscar M. Wall, 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 Sadie Wall, individually, and as Executrix of the Estate of Oscar M. Wall, 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 18th day of December, 2003. NYL LLI- Mayor MlrCity o Rund Rock, Texas AT ST : . CHRISTINE R. MARTINEZ, City Se etary @PFDesktop\::ODMA/WORLDOX]O:/WDOX/RESOLUTI/R31218A1.WPD/sc REAL ESTATE CONTRACT State of Texas County of Williamson THIS REAL ESTATE CONTRACT ("Contract") is made by and between Sadie Wall, individually, and as Executrix of the Estate of Oscar M. Wall, referred to in this Contract as "Seller") and the City of Round Rock, a Texas Home Rule City (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 a tract of land containing approximately 75.874 acres of land situated in Williamson County, Texas, being more particularly described on Exhibit "A" attached to and incorporated in this Contract by reference for all purposes, (a more detailed legal description will be determined from the survey provided for in this Contract); 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. Regardless of the foregoing, the parties hereto agree that Seller may retain ownership and remove from the Property an existing windmill and an antique gasoline pump. Seller understands that said items must be removed within ten (10) days after the closing date (defined below) or said items shall thereafter become the property of Buyer. The parties further agree that the Property to be conveyed will save and except a strip of land approximately 201 wide along the eastern boundaries of Lots 8, 9, and 10 of the Jackie Thomison Subdivision, as shown on Exhibit "A." The parties further agree that any street or roadway constructed on the Property within ten (10) years after the closing date will be constructed in such a way so that the paved portion of the roadway will be at least twenty (20) feet from the eastern boundary of the above described strip of land to be retained by Seller. @PFDesktop\::ODmA/WORLD0X/0:/WDOX/CORA/GNL/WALL/RE_CONfR/00059395':WPD/sls EXHIBIT .0 If 11 ARTICLE II PURCHASE PRICE Amount of Purchase Price 2.01. The purchase price for the Property shall be the sum of One Million Eight Hundred Ninety-six Thousand Eight Hundred Fifty and no/100 Dollars ($ 1,896,850.00.) Notwithstanding the foregoing, if the survey of the Property to be furnished as provided below, reflects that the number of acres comprising the Property is more or less than 75.874 acres, the purchase price is to be increased or reduced by the product of $ 25,000.00 times the number of acres of the Property more or less than 75.874 acres. Payment of Purchase Price 2.02. The Purchase Price shall be payable in cash at the closing. ARTICLE III PURCHASER'S OBLIGATIONS Conditions to Purchaser's Obligations 3.01. The obligations of Purchaser hereunder to consummate the 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 fifteen (15) days after the date hereof, Seller, at Purchaser's sole cost and expense, shall have caused Georgetown Title Company, 1717 N. Mays, Round Rock, Texas 78664 ("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 in the Title Commitment is or is not satisfactory, and in the event Purchaser states that the condition is not satisfactory, Seller shall promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser. In the event Seller is unable to do so within thirty (30) days after receipt of written 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 written notice shall be deemed to be Purchaser's acceptance of the Title Commitment. E Survey 3.03. Within forty-five (45) 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 contain the surveyor's certification that there are no encroachments on the Property 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 thirty (30) 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 be deemed to be Purchaser's acceptance of the survey. New Surveys and Tests 3.04. Within one hundred and fifty (150) days after the date hereof Purchaser is granted the right to conduct engineering surveys, environmental surveys, feasibility studies of the Property, and any and all other surveys or studies deemed necessary to Purchaser, and in this connection Purchaser or Purchaser's designated agents may enter upon the premises for purposes of soil analysis, core drilling, or other tests which may be deemed necessary to Purchaser or Purchaser's engineer. If it should be determined by Purchaser 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 one hundred and eighty (180) 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, as provided in Article VII. If the written notice is not received within this one hundred and eighty (180) day period, the condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. Feasibili 3.05. Within one hundred and eighty (180) days after the date hereof Purchaser is granted the right to determine the feasibility of purchasing the Property for its intended purpose as a public park. If it should be determined by Purchaser in Purchaser's sole judgment that the Property is not feasible for its intended purpose, then and in this event, Purchaser may, on written notice to Seller received prior to one hundred and eighty (180) 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, as provided in Article VII. If the written notice is not received within this one hundred and eighty (180) day period, the condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. 3 Miscellaneous Conditions 3.06. 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 OF SELLER 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: (1) There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers; (2) Other than the threatened condemnation by Purchaser, there is no pending or threatened condemnation or similar proceeding or assessment affecting the Property, or any part thereof, nor to the best knowledge and belief of Seller is any such proceeding or assessment contemplated by any governmental authority; (3) Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the Property, or any part thereof; (4) The Property has full and free access to and from public highways, streets or roads and, to the best knowledge and belief of Seller, there is no pending or threatened governmental proceeding that would impair or result in the termination of this access. ARTICLE V CLOSING Closing Date 5.01. The closing shall be held at the office of the Title Company, on or before two hundred and ten (210) days from the effective date hereof, 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 at Closing 5.02. At the closing Seller shall: (1) Deliver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and 4 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; (b) Any exceptions approved by Purchaser pursuant to Article III hereof; (c) Any exceptions approved by Purchaser in writing: and (d) A provision restricting the Property from being used for lighted baseball or softball fields The parties agree that this transaction is in lieu of condemnation and that the aforesaid Deed may contain a provision so stating. (2) Deliver to Purchaser a Texas Owner's Title Policy at Purchaser's sole expense, issued by the Title Company in Purchaser's favor in the full amount of the purchase price, insuring Purchaser's fee simple title to the Property subject only to those title exceptions listed 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." (c) 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. Proration 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. 5 Closin2 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 to be paid by Purchaser; (2) Survey to be paid by Purchaser; (2) Deed, tax certificates, and title curative matters, if any, paid by Seller; (3) All other closing costs shall be paid by Purchaser; and (4) Attorney's fees paid by each respectively. Tax Free Exchane7e 5.06. Seller may elect to attempt to defer federal income taxes on .this transaction by setting up a tax deferred exchange in accordance with IRS rules and regulations. In that event, Purchaser agrees to cooperate with Seller in that endeavor. Upon request, Purchaser agrees to provide Seller with a letter stating that this transaction is in lieu of condemnation. ARTICLE VI REAL ESTATE COMMISSIONS It is understood and agreed that no brokers have been involved in the negotiation and consummation of this Contract. All real estate commissions, if any, occasioned by the consummation of this Contract shall be the sole responsibility of Seller, and Seller agrees to indemnify and hold harmless Purchaser from any and all 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. ARTICLE VII 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 Ten Thousand Dollars ($10,000), the Escrow Deposit, which shall be paid by the Title Company to Seller in the event Purchaser breaches this Contract as provided in Article IX 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 the Purchaser shall have given written notice to the Title Company that one or more of the conditions to its obligations set forth in Article III have not been met, or, in the opinion of Purchaser, cannot be satisfied, in the manner and as provided for in Article III, then the Escrow Deposit (less $100.00) shall be forthwith returned by the Title Company to Purchaser. Seller shall G have the right to retain the aforesaid $100.00 as independent consideration for entering into this Contract. ARTICLE VIII 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) seek specific performance of this Contract; (2) request that the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser; or (3) bring suit for damages against Seller. ARTICLE IX 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 X MISCELLANEOUS Assignment of Contract 10.01. This Contract maybe assigned by Purchaser provided that Purchaser's assignee, shall expressly assume all Purchaser's liabilities, obligations, and duties hereunder. On delivery to Seller of an instrument in writing whereby the assignee assumes all of the provisions of this Contract to be performed by Purchaser, then, in that event, Purchaser shall be released and discharged of all further liability hereunder. Survival of Covenants 10.02. Any of the representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein. Notice 10.03. 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 10.04. 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 10.05. 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 10.06. 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 Ageements Superseded 10.07. 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 10.08. Time is of the essence in this Contract. Gender 10.09. 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 10.10. Upon request of either party, both parties shall promptly execute a memorandum of this Contract suitable for filing of record. 3 Compliance 10. 11. 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 10.12. This Contract shall be effective either as of January 1, 2004, or the date it is approved by the City Council, which date is indicated beneath the Mayor's signature below, whichever occurs last. SELLER: 4adi. Wall, individually Sadie M. Wall, Executrix of the Estate of Oscar M. Wall 7 Brenda Lane Round Rock, Texas, 78664 Date: PURCHASER: City of Round Rock, Texas by: Nyle Maxwell, Mayor 221 E. Main St. Round Rock, Texas Date: �i RECEIPT Receipt of [ ] copy of Contract and [ ] $10,000 Earnest Money in the form of a corporate check is acknowledged. Date: Georgetown Title Company 1717 N. Mays St. Round Rock, Texas 10 Escrow Agent 8074192 { DMAIl TAYLOR, .1 i DOC 9636915 8074790 s 3.0 AC 1 4 2-A 3 016 AC 4%W (1.922 AC) a„a.- OVAEs7 E791 C1IACEK, DOC 9627643 14.201 ACI 2-13 6.023 AC i a.a.•r -- 24 ` 2 5.004 AC Y . PC 21 „C 2.24 AC Y fdDED ' 1 p 1 8063)12 AC aeM 3N.aT Ro7461z R108082 29 -8074801 � C 8074606 8074794 /4eo4 Ro74eos � � war TAMMY LH 21 22 23 'r2 Ro74611 2.06 AC 2.24 AC 28 1.04 AC -- 3.316 AC 8074192 { DMAIl TAYLOR, .1 i DOC 9636915 8074790 s 3.0 AC 1 4 2-A 3 016 AC 4%W (1.922 AC) a„a.- OVAEs7 E791 C1IACEK, DOC 9627643 14.201 ACI 2-13 6.023 AC i a.a.•r -- 24 R074793 2 5.004 AC R074796 21 „C 2.24 AC Y 3 3.031AC 1 p 1 3.. ar AC aeM 4.001 AC R108082 W -8074801 - 3.0 AC 8074606 8074794 /4eo4 Ro74eos � � 4 21 22 23 3.326 AC 2.06 AC 2.24 AC "61 1.04 AC -- R074803 CA li'-Z,59i AC 20 g .50 AC xa3r 5.004 AC R074796 1 s, 1 80719 02 3.031AC 1 p 1 3.. ar t 4.300 AC o 1 R108082 J. WALL -8074801 - 3.0 AC 1 9 18 sj"w 1 6.87 AC R307761 1 1 i 8 R375361 5.0 AC ' G. M 17 2137/6 ; 3.39 AC 6 1 .sa.fr P ,\� 8074797 ' (4.367 1 ACI 1 _ _ .+..'+\4.00 K - R307276- AC 5 1 � 15 I � ' (4.934 Ali) Al 8074766 ow"n an`c"" r r ,K 40K SF4 1 83077751 wuas 14 3 ? t .o.ar u.e . 8074799 3.69 AC j 11 3.033 AC 1 R307774 13 R051633 4.233 ACI i 12 au.r $ 3.0 AC 9 _ N L11033765 �Rps3764 • — • _ t� MARVN g� I 603/191 1)7.00 Ar -3 . I 100.066 AC 3.0 IMC LLocation Map. J { 0 C 9629243 3 13.0 AC) :3.63 AC 3w sr a3..ar rc new• O 1' jabs— -_ wx u"Ar 1.63 AC) I 1 Sex 1.0 AC ROUND R c 8312181 CITY OF I , ROUND ROCK I DOC 9614211 R055295 II 1 10.0 AC i' J. MEIER 7 908/700 I II 1 (75.875 AC) I 1 { 75.589 AC- { I I I � )4 I I1 It'' it 1 I 1 1 AI 1 11. 1 R356( CITY OF R04 I 1 1 1760/ 2064/57 { , , , 240.6 (21.647 AC) 1 1 t - - - -1 -.__msµ___-._ r- 1 Oi 1 1 1 > 1 1 { 1 1 1 1 1 1 1 I 1 R035303 ' 11 0. WALL 926/100 1 (54.227 AC) 75.874 AC 74 131' / I �J Q ,11 • � 3L 111 1!11 I 1t 1 1• � w. m Ilaw 1 1 1 1 _ ' RC , 1 1 1 1 CITY OF 1760/475 1 / 171 DATE: December 12, 2003 SUBJECT: City Council Meeting - December 18, 2003 ITEM: 8.A.1. Consider a resolution authorizing the Mayor to execute a Real Estate Contract with Sadie Wall, individually, and as Executrix of the Estate of Oscar M. Wall for the purchase of property for parkland. Resource: Jim Nuse, City Manager Sharon Prete, Parks and Recreation Director History: This 75 -acre tract is adjacent to Old Settlers Park @ Palm Valley. Its development will enhance the existing park, as well as, cost- effectively utilize existing park infrastructure. Funding: 75.874 acres @ $25,000 an acre Cost: $1,896,850 Source of funds: General Self -Financed Construction (2001 & 2003 Capital Budget) Outside Resources: N/A Impact/Benefit: Greatly enhance the quality of Old Settlers Park @ Palm Valley and help foster the 'Sports Capital of Texas" program. Public Comment: N/A Sponsor: N/A EXECUTED DOCUMENT FOLLOWS REAL ESTATE CONTRACT State of Texas County of Williamson THIS REAL ESTATE CONTRACT ("Contract") is made by and between Sadie Wall, individually, and as Executrix of the Estate of Oscar M. Wall, referred to in this Contract as "Seller") and the City of Round Rock, a Texas Home Rule City (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 a tract of land containing approximately 75.874 acres of land situated in Williamson County, Texas, being more particularly described on Exhibit "A" attached to and incorporated in this Contract by reference for all purposes, (a more detailed legal description will be determined from the survey provided for in this Contract); 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. Regardless of the foregoing, the parties hereto agree that Seller may retain ownership and remove from the Property an existing windmill and an antique gasoline pump. Seller understands that said items must be removed within ten (10) days after the closing date (defined below) or said items shall thereafter become the property of Buyer. The parties further agree that the Property to be conveyed will save and except a strip of land approximately 20' wide along the eastern boundaries of Lots 8, 9, and 10 of the Jackie Thomison Subdivision, as shown on Exhibit "A." The parties further agree that any street or roadway constructed on the Property within ten (10) years after the closing date will be constructed in such a way so that the paved portion of the roadway will be at least twenty (20) feet from the eastern boundary of the above described strip of land to be retained by Seller. k -U7 I -q-184AI @PFDesktop\::ODMA/WORLDOX/O:/WDOX/CORA/GNL/WALL/RE_CONTR/0005939;LWPD/S1S ARTICLE II PURCHASE PRICE Amount of Purchase Price 2.01. The purchase price for the Property shall be the sum of One Million Eight Hundred Ninety-six Thousand Eight Hundred Fifty and no/l00 Dollars ($ 1,896,850.00.) Notwithstanding the foregoing, if the survey of the Property to be furnished as provided below, reflects that the number of acres comprising the Property is more or less than 75.874 acres, the purchase price is to be increased or reduced by the product of $ 25,000.00 times the number of acres of the Property more or less than 75.874 acres. Payment of Purchase Price 2.02. The Purchase Price shall be payable in cash at the closing. ARTICLE III PURCHASER'S OBLIGATIONS Conditions to Purchaser's Obligations 3.01. The obligations of Purchaser hereunder to consummate the 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 fifteen (15) days after the date hereof, Seller, at Purchaser's sole cost and expense, shall have caused Georgetown Title Company, 1717 N. Mays, Round Rock, Texas 78664 ("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 in the Title Commitment is or is not satisfactory, and in the event Purchaser states that the condition is not satisfactory, Seller shall promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser. In the event Seller is unable to do so within thirty (30) days after receipt of written 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 written notice shall be deemed to be Purchaser's acceptance of the Title Commitment. F S_S_ urvev 3.03. Within forty-five (45) 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 contain the surveyor's certification that there are no encroachments on the Property 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 thirty (30) 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 be deemed to be Purchaser's acceptance of the survey. New Surveys and Tests 3.04. Within one hundred and fifty (150) days after the date hereof Purchaser is granted the right to conduct engineering surveys, environmental surveys, feasibility studies of the Property, and any and all other surveys or studies deemed necessary to Purchaser, and in this connection Purchaser or Purchaser's designated agents may enter upon the premises for purposes of soil analysis, core drilling, or other tests which may be deemed necessary to Purchaser or Purchaser's engineer. If it should be determined by Purchaser 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 one hundred and eighty (180) 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, as provided in Article VII. If the written notice is not received within this one hundred and eighty (180) day period, the condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. Feasibility 3.05. Within one hundred and eighty (180) days after the date hereof Purchaser is granted the right to determine the feasibility of purchasing the Property for its intended purpose as a public park. If it should be determined by Purchaser in Purchaser's sole judgment that the Property is not feasible for its intended purpose, then and in this event, Purchaser may, on written notice to Seller received prior to one hundred and eighty (180) 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, as provided in Article VII. If the written notice is not received within this one hundred and eighty (180) day period, the condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. 3 Miscellaneous Conditions 3.06. 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 OF SELLER 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: (1) There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers; (2) Other than the threatened condemnation by Purchaser, there is no pending or threatened condemnation or similar proceeding or assessment affecting the Property, or any part thereof, nor to the best knowledge and belief of Seller is any such proceeding or assessment contemplated by any governmental authority; (3) Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the Property, or any part thereof; (4) The Property has full and free access to and from public highways, streets or roads and, to the best knowledge and belief of Seller, there is no pending or threatened governmental proceeding that would impair or result in the termination of this access. ARTICLE V CLOSING Closing Date 5.01. The closing shall be held at the office of the Title Company, on or before two hundred and ten (210) days from the effective date hereof, 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 at Closing 5.02. At the closing Seller shall: (1) Deliver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and 4 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; (b) Any exceptions approved by Purchaser pursuant to Article III hereof, (c) Any exceptions approved by Purchaser in writing: and (d) A provision restricting the Property from being used for lighted baseball or softball fields The parties agree that this transaction is in lieu of condemnation and that the aforesaid Deed may contain a provision so stating. (2) Deliver to Purchaser a Texas Owner's Title Policy at Purchaser's sole expense, issued by the Title Company in Purchaser's favor in the full amount of the purchase price, insuring Purchaser's fee simple title to the Property subject only to those title exceptions listed 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." (c) 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. 5 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 to be paid by Purchaser; (2) Survey to be paid by Purchaser; (2) Deed, tax certificates, and title curative matters, if any, paid by Seller; (3) All other closing costs shall be paid by Purchaser; and (4) Attorney's fees paid by each respectively. Tax Free Exchange 5.06. Seller may elect to attempt to defer federal income taxes on this transaction by setting up a tax deferred exchange in accordance with IRS rules and regulations. In that event, Purchaser agrees to cooperate with Seller in that endeavor. Upon request, Purchaser agrees to provide Seller with a letter stating that this transaction is in lieu of condemnation. ARTICLE VI REAL ESTATE COMMISSIONS It is understood and agreed that no brokers have been involved in the negotiation and consummation of this Contract. All real estate commissions, if any, occasioned by the consummation of this Contract shall be the sole responsibility of Seller, and Seller agrees to indemnify and hold harmless Purchaser from any and all 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. ARTICLE VII 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 Ten Thousand Dollars ($10,000), the Escrow Deposit, which shall be paid by the Title Company to Seller in the event Purchaser breaches this Contract as provided in Article IX 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 the Purchaser shall have given written notice to the Title Company that one or more of the conditions to its obligations set forth in Article III have not been met, or, in the opinion of Purchaser, cannot be satisfied, in the manner and as provided for in Article III, then the Escrow Deposit (less $100.00) shall be forthwith returned by the Title Company to Purchaser. Seller shall n have the right to retain the aforesaid $100.00 as independent consideration for entering into this Contract. ARTICLE VIII 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) seek specific performance of this Contract; (2) request that the Escrow Deposit shall be forthwith returned by the Title Company to Purchaser; or (3) bring suit for damages against Seller. ARTICLE IX 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 Tit] e 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 X MISCELLANEOUS Assignment of Contract 10.01. This Contract maybe assigned by Purchaser provided that Purchaser's assignee, shall expressly assume all Purchaser's liabilities, obligations, and duties hereunder. On delivery to Seller of an instrument in writing whereby the assignee assumes all of the provisions of this Contract to be performed by Purchaser, then, in that event, Purchaser shall be released and discharged of all further liability hereunder. Survival of Covenants 10.02. 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. 7 Notice 10.03. 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 10.04. 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 10.05. 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 10.06. 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 10.07. 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 10.08. Time is of the essence in this Contract. Gender 10.09. 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 10.10. Upon request of either party, both parties shall promptly execute a memorandum of this Contract suitable for filing of record. 8 Compliance 10. 11. 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 10.12. This Contract shall be effective either as of January 1, 2004, or the date it is approved by the City Council, which date is indicated beneath the Mayor's signature below, whichever occurs last. SELLER: Sadie M. Wall, individually Sadie M. Wall, Executrix of the Estate of Oscar M. Wall 7 Brenda Lane Round Rock, Texas, 78664 Date: PURCHASER: City of Round Rock, b, 221 E. Main St. Round Rock, Texas Date:�- E RECEIPT Receipt of [.'copy of Contract and [ x`$10,000 Earnest Money in the form of a corporate check is acknowledged. Date: 1 / e Georgetown Title Company 1717 N. 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R074799 I Z 11 ) 3.69 ACJ 11 $ 111 11 1� 1 Warr 3.033 AC I 1 R3O7774 13 RO51633 4.233 AC 1 -� 12 1 1 . wa.r 3.075 AC 4 I 1 rw.or rw.Jr wdr ROSARV*j (t055ia4 n cRt_ uioo Ac] 1 1 , RC 1 100.066 AC 3.0 Ilc- CITY OF - _ ------ 1760/475 i IEXHIBIT _ D 8 "An PD` CITY OF ROUND ROCK BANK OF AMERICA 88-130 . ^� 1x: 221 E, -MAIN STREET WICHITA FALLS, TEXAS 1119 TX �� Invoice Date -0602 8 Disco nt Taken RO0I 6 ROCK, TX 78664 _ Paid Amount ,v Pbn (512)18-5400 00097335 10,000.00 0.00 0.00 10,000.00 I ** unt 'I() 000.00, '. e .ii Pay ****TEi TH©IISAND AAji1-XX / 100 DOLLAR**** Check Number Date Total Total m 3 �� To The GEORGETOWN TITLE CO, INC MIN 2 IWO:OREM i -rder of m 702 Rock St Georgetown, Late Charges Paid Amount TX 78626, Jan/09/2004 Check Date: Jan/09/2004 Vendor Number: 0000031531 Check No. 060258 Invoice Number Invoice Date Voucher ID Gross Amount Disco nt Taken Late Charge Paid Amount 010704 Jan/07/2004 00097335 10,000.00 0.00 0.00 10,000.00 Check Number Date Total Total Total Total Gross Amount Discounts Late Charges Paid Amount 060258 Jan/09/2004 $10,000.00 $0.00 $0.00 $10,000.00