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R-04-06-24-17A1 - 6/24/2004RESOLUTION NO. R -04-06-24-17A1 WHEREAS, the City desires to purchase a 0.143 acre tract of land for additional right-of-way for the Red Bud Lane (CR 122) Project, and WHEREAS, Burnell E. McQueen, Susan McQueen, Joel E. Franklin and Janette T. Franklin, the owners of the property, have 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 Burnell E. McQueen, Susan McQueen, Joel E. Franklin and Janette T. Franklin, 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 June, 2004. ST:It.sk;nt)P �r�, aittne, CHRISTINE R. MARTINEZ, City Secre @PFDesktop\.: ODMA/WORLDOX/O./WDOX/RESOLUTI/R40624A1.WPD/sc NYLE Vii LL, a City o Round Rock, Texas REAL ESTATE CONTRACT State of Texas County of Williamson THIS REAL ESTATE CONTRACT ("Contract") is made by and between BURNELL E. MCQUEEN, SUSAN MCQUEEN, JOEL E. FRANKLIN, JANETTE T. FRANKLIN, (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: .143 acre, more or less, situated in the John H. Randall Survey, Abstract No. 531, Williamson County, Texas, being a portion of a called 6.25 acre tract of land described in that deed to Burnell E. McQueen, et. al., and recorded in Document No. 9926654 of the Official Records of said county, more fully described by metes and bounds in Exhibit "A", attached hereto and incorporated herein. 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"). This purchase also includes any improvements and fixtures situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions set forth below. ARTICLE II PURCHASE PRICE Amount of Purchase Price 2.01. The purchase price for the Property shall be the sum of THREE THOUSAND SEVEN HUNDRED THIRTY SEVEN and no/100 Dollars ($3,737.00). Payment of Purchase Price 2.02. The Purchase Price shall be payable in cash at the closing. EXHIBIT nAn @PFDesktop\r:ODMA/WORLDOX/O:/WDOX/CORR/TRANSPRT/REDBUDLANE/PARCEL-YO/REALEST/00067500.WPD/sls 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 maybe 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 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, 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; (3) 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 June 15, 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 Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions, except for the following: (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) 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 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: (3)• (a) (b) The boundary and survey exceptions shall be deleted; 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." 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 Mayor'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: el E. Franklin Date anette T. Franklin PURCHASER: CITY OF ROUND ROCK By: Nyle Maxwell, Mayor 221 E. MAIN STREET ROUND ROCK, TEXAS 78664 Date: 7 17k Z- V/e. Date DATE: June 18, 2004 SUBJECT: City Council Meeting - June 24, 2004 ITEM: *17.A.1. Consider a resolution authorizing the Mayor to execute a Real Estate Contract with Burnell McQueen for the purchase of right-of-way for the Red Bud Lane (CR 122) Project. Department: Legal Department Staff Person: Steve Sheets, City Attorney Justification: Purchase right-of-way from Burnell McQueen for the widening and improvement of Red Bud Lane (CR 122). Funding: Cost: $3,737.00 Source of funds: Round Rock Transportation System Development Corporation (4B) Outside Resources: Sheets & Crossfield, P.C. Background Information: Increased mobility to the southeast quadrant of the City. Public Comment: N/A Executed Document Follows REAL ESTATE CONTRACT State of Texas County of Williamson THIS REAL ESTATE CONTRACT ("Contract") is made by and between BURNELL E. MCQUEEN, SUSAN MCQUEEN, JOEL E. FRANKLIN, JANETTE T. FRANKLIN, (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: .143 acre, more or less, situated in the John H. Randall Survey, Abstract No. 531, Williamson County, Texas, being a portion of a called 6.25 acre tract of land described in that deed to Burnell E. McQueen, et. al., and recorded in Document No. 9926654 of the Official Records of said county, more fully described by metes and bounds in Exhibit "A", attached hereto and incorporated herein. 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"). This purchase also includes any improvements and fixtures situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions set forth below. ARTICLE II PURCHASE PRICE Amount of Purchase Price 2.01. The purchase price for the Property shall be the sum of THREE THOUSAND SEVEN HUNDRED THIRTY SEVEN and no/100 Dollars ($3,737.00). Payment of Purchase Price 2.02. The Purchase Price shall be payable in cash at the closing. @PFDesktop\::ODMA/WORLDOX/O:/WDOX/CORK/TRANSPRT/REDBUDLANE/PARCEL, 0/REALEST/00067500.WPD/sls 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 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, 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; (3) 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 June 15, 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 Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions, except for the following: (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) 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 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: (3) (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." 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 Mayor'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: l Susan McQue Date anette T. Franklin Date PURCHASER: CITY OF ROUND ROCK ayor 221 E. MAIN STREET ROUND ROCK, TEXAS 78664 Date: 7