R-01-01-25-10B2 - 1/25/2001 RESOLUTION NO. R-01-01-25-10B2
WHEREAS, the City desires to purchase a tract of land containing
approximately 4 . 16 acres for parkland, and
WHEREAS, Maud E. Johnson and Percy Jean Williams, 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 Maud E. Johnson and
Percy Jean Williams, for the purchase of the above described property,
a copy of said Real Estate Contract being attached hereto 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, and the Act .
RESOLVED this 25th day of Janu 001 .
ROB T A. STLUKA, JR. VMayor
A T City of Round Rock, Texas
J E LAND, City Secretary
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REAL ESTATE CONTRACT
State of Texas
County of Williamson
THIS REAL ESTATE CONTRACT ( "Contract" ) is made by and between
Maud E . Johnson and Persy Jean Williams (referred to collectively
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, the tract of land
containing approximately 4 . 16 acres of land situated in Williamson
County, Texas, known locally as 1001 Emmanuel Street and being more
particularly described in 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.
ARTICLE II
PURCHASE PRICE
Amount of Purchase Price
2 . 01 . The purchase price for the Property shall be the sum of
One Hundred Thirty-seven Thousand and no/100 Dollars ($137, 000 . 00)
Payment of Purchase Price
2 . 02 . The Purchase Price shall be payable in cash at the
closing.
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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 thirty (30) days after the date hereof, Seller,
at Seller' s sole cost and expense, shall have caused 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.
Purchaser shall give Seller written notice on or before the
expiration of fifteen (15) 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 .
Survey
3 . 03 . Within forty-five (45) days from the date hereof,
Seller, at Seller' s sole cost and expense, shall cause to be
delivered a current survey of the Property, prepared by a duly
licensed Texas land surveyor. The survey shall be staked on the
ground, and 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
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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 forty-five (45) 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 the end of the
Feasibility Period including any extensions as provided in
paragraph 3 . 05, 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 prior to the expiration
of the Feasibility Period, including any extensions, the condition
shall be deemed to be acceptable and any objection thereto shall be
deemed to have been waived for all purposes .
Miscellaneous Conditions
3 . 05 . Seller shall have performed, observed, and complied with
all of the covenants, agreements, and conditions required by this
Contract to be performed, observed, and complied with by Seller
prior to or as of the closing.
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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) 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 Austin Title
Company, 101 E. Old Settlers Blvd. , Round Rock, Texas, and shall be
held on or before sixty (60) days from 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 all liens,
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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; and
(c) Any exceptions approved by Purchaser in writing.
(2) Deliver to Purchaser a Texas Owner' s Title Policy at
Seller' s sole expense, issued by Title Company in Purchaser' s favor
in the full amount of the purchase price, insuring Purchaser' s fee
simple title to the Property subject only to those title exceptions
listed 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.
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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 Seller.
(2) Deed, tax certificates, and title curative matters, if
any, paid by Seller
(3) All other closing costs shall be paid by Purchaser.
(4) Attorney' s fees paid by each respectively.
ARTICLE VI
REAL ESTATE COMMISSIONS
It is understood and agreed that the only brokers involved in
the negotiation and consummation of this Contract have been and are
Thomas & Associates, 2101 Elder Place, Round Rock, TX, 78664 and
conditioned upon the closing of the transaction contemplated
hereby, a commission in the amount of six (6) percent of the total
purchase price shall be payable to the aforementioned brokers . This
commission is to be payable in cash at the closing. If this
Contract is terminated for any reason prior to closing, there will
be no commission due or payable hereunder. All real estate
commissions 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 other
than the liability of Seller as set forth in this paragraph.
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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 One Thousand Dollars ($1, 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 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) enforce 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
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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 may be 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 set forth below.
(1) All notices to the Purchaser shall be sent to:
City of Round Rock
221 E. Main St .
Round Rock, Texas 78664
Attention: Robert L. Bennett, City Manager
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Facsimile Number: 512-218-7097
with copies being sent to:
Stephan L. Sheets
City Attorney
309 E. Main St .
Round Rock, Texas 78664
Facsimile Number: 512-255-8986
(2) All notices sent to Seller shall be sent to:
Maud E. Johnson
with copies being sent to:
James L. Thomas, Sr.
Thomas & Associates
2101 Elder Place
Round Rock, Texas 78664
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
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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.
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 . 13 . This Contract shall be effective as of the date it is
approved by the City Council, which date is indicated beneath the
Mayor' s signature below.
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SELLER:
Maud E. Johnson
Percy Jeorn lliams
Date :
PURCHASER:
City of Round Rock, Texas
by
Robert A. Stluka, JV. Mayor
221 E. Main St .
Round Rock, Texas
Date :
RECEIPT
On this day of , 2001, Escrow Agent with First
American Title Insurance Company acknowledges receipt of this
Contract and Earnest Money $10, 000 . 00 in the form of a check.
Escrow Agent
Austin Title Co.
101 E. Old Settlers Blvd.
Round Rock, Texas 78664
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DATE: January 19, 2001
SUBJECT: City Council Meeting—January 25, 2001
ITEM: 10.B.2. Consider a resolution authorizing the Mayor to execute a Real
Estate Contract with Maud E. Johnson and Percy Jean Williams
for the purchase of approximately 4.16 acres of land to be used for
parkland. This property is located in the Chisholm Trail Historic
District and contains what was once known as the Round Rock
Bathing Beach.
Resource: Sharon Prete, Parks and Recreation Director
History: The Bathing Beach, located west of Chisholm Trail, was Round Rock's original
"swimming hole." This historic site has been in private ownership for many
years, now we have an opportunity to make it accessible to the public. If
purchased, the property will be leased for two years to the LCRA/BRA for the
cross-town wastewater tunnel project in exchange for$50,000.
Funding:
Cost: $137,000
Source of funds: 2000 Certificate of Obligation Issue
Outside Resources: LCRA—they will be leasing the property for$50,000.00 during the
construction of the regional wastewater tunnel through the area.
Impact: Ownership of this property provides public access to Brushy Creek for citizen's
living west of Chisholm Trail.
Benefit: Acquisition of this historic site increases the size and versatility of Round Rock
Memorial Park. It also will serve as a link in the Brushy Creek Regional Trail.
Public Comment: A number of people have informally stated their support of this
acquisition.
Sponsor: PARD/LORA