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HomeMy WebLinkAbout5-22-08-07 (RA) - Resolution - 05/22/2008RESOLUTION NO. 5- 22 -08 -07 (R k) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, AWARDING A BID RELATING TO THE SALE OR EXCHANGE OF REAL PROPERTY LOCATED NEAR JONES BUTLER ROAD AND DOWLING STREET IN THE CITY OF COLLEGE STATION. WHEREAS, the City of College Station, Texas, solicited bids for the sale or exchange of 4.99 acres of real property located near Jones Butler Road and Dowling Street as further described in Exhibit "A" attached hereto; and WHEREAS, the anticipated use of such exchanged property will be for electrical and water utility purposes requiring immediate possession for the preparation of improvements related thereto; and WHEREAS, the selection of TLS Operating Company, LLC, General Partner of TLS Properties, Ltd., exchanging approximately 4.365 acres of land is being recommended as the bid award; now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That the facts and recitations set forth in the preamble of this resolution are hereby declared true and correct. PART 2: That the City Council hereby awards the bid for the sale or exchange of 4.99 acres of land owned by the City as described in Exhibit "A" to TLS Operating Company, LLC, General Partner of TLS Properties, Ltd., in exchange for such entity's 4.365 acres of land as further described in Exhibit `B" attached hereto. PART 3: That the City Council hereby approves and authorizes the execution of the real estate contract with TLS Operating Company, LLC, General Partner of TLS Properties, Ltd., for the sale or exchange of its property described above as set forth in Exhibit "C" attached hereto. PART 4: That the City Council hereby approves and authorizes the execution of the Possession and License Agreement as set forth in Exhibit "D" attached hereto allowing for the immediate commencement of improvements. PART 5: That City staff is hereby authorized and directed to take any and all reasonable actions to give effect to the foregoing. PART 6: That this resolution shall take effect immediately from and after its passage. OADepartment FilesTlanning & Development\Dowling & Jones Butler construct\resol I .doc5/12/20089:34:18 AM RESOLUTION NO. 5- 22 -08 -07 Page 2 ADOPTED this 22nd day of May , A.D. 2008. ATTEST: p t4 ,, v" City Secretary APPROVED: MAYOR APPRO ED: C Attorney OADepartment FilesTlanning & DevelopmentDowling & Jones Butler constructVesol l.doc5/12/20089:34:18 AM Resolution No. 5- 22 -08 -07 EXHIBIT A METES & BOUNDS FOR CITY'S 4.99 ACRES Resolution No. 5- 22 -08 -07 EXHIBIT A Legal Description and Survey METES AND BOUNDS DESCRIPTION OF A 4.99 ACRE TRACT CRAWFORD BURNETT LEAGUE, A -7 COLLEGE STATION, BRAZOS COUNTY, TEXAS METES AND BOUNDS DESCRIPTION OF ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN THE CRAWFORD BURNETT LEAGUE, ABSTRACT NO. 7, COLLEGE STATION, BRAZOS COUNTY, TEXAS. SAID TRACT BEING A PORTION OF A CALLED 5.000 ACRE TRACT AS DESCRIBED BY A DEED TO THE CITY OF COLLEGE STATION RECORDED IN VOLUME 8222, PAGE 226 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS, AND A PORTION OF A CALLED 10.7466 ACRE TRACT AS DESCRIBED BY A DEED TO THE CITY OF COLLEGE STATION RECORDED IN VOLUME 6950, PAGE 42 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS. SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING AT 518 INCH IRON ROD FOUND ON THE NORTHWEST LINE OF DOWLING ROAD (VARIABLE WIDTH R.O.W.) MARKING THE SOUTH CORNER OF SAID 5.000 ACRE TRACT AND AN EAST CORNER OF THE REMAINDER OF A CALLED 134.041 ACRE TRACT AS DESCRIBED BY A DEED TO TLS PROPERTIES, LTD. RECORDED IN VOLUME 309 1, PAGE 243 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS; THENCE: N 47'16'04" W ALONG THE COMMON LINE OF SAID REMAINDER OF 134.041 ACRE TRACT AND SAID 5.000 ACRE TRACT, AT 426.65 FEET PASS A 518 INCH IRON ROD FOUND, CONTINUE ON FORA TOTAL DISTANCE OF 546.70 FEET TO A POINT MARKING THE WEST CORNER OF SAID 5.000 ACRE TRACT; THENCE: N 42" 32'3 1" E CONTINUING ALONG THE COMMON LINE OF SAID 5.000 ACRE TRACT AND SAID REMAINDER OF 134.041 ACRE TRACT, AT 79.96 FEET PASS A 518 INCH ROD FOUND, CONTINUE ON FOR A TOTAL DISTANCE OF 397.02 FEET TO A 518 INCH IROM &D FOUND MARKING THE COMMON CORNER OF SAID 5.000 ACRE TRACT AND SAID 10.7466 ACRE TRACT; THENCE: N 42" 32'57" E ALONG THE COMMON LINE OF SAID 10.7466 ACRE TRACT AND SAID REMAINDER OF 134.041 ACRE TRACT FOR A DISTANCE OF 212.49 FEET TO A POINT MARKING THE NORTH CORNER OF THIS HEREIN DESCRIBED TRACT; THENCE: S 10" 56'18" E THROUGH SAID 10.7466 ACRE TRACT AND SAID 5.000 ACRE TRACT AND ALONG THE CENTERLINE OF A FUTURE RIGHT -OF -WAY FOR A DISTANCE OF 439.12 FEET TO A POINT MARKING THE BEGINNMG OF A CLOCKWISE CURVE HAVING A RADNS OF 575.00 FEET; THENCE: CONTINUING THROUGH SAID 5.000 ACRE TRACT AND ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 32'2742" FOR AN ARC DISTANCE OF 325.77 FEET (CHORD BEARS: S 05'17'33" W - 32 1.43 FEET) TO A POINT ON THE NORTHWEST LINE OF DOWLING ROAD MARKING THE ENDING POINT OF SAID CURVE; THENCE: S 43" 0 F08" W ALONG THE NORTHWEST LINE OF DOWLING ROAD FORA DISTANCE OF 94.15 FEET TO THE POINT OF BEGINNING CONTAINING 4.99 ACRES OF LAND, MORE OR LESS, AS SURVEYED ON THE GROUND. BEARING SYSTEM SHOWN HEREIN IS BASED ON GRID NORTH AS ESTABLISHED FROM GPS OBSERVATION. BRAD KERR REGISTERED PROFESSIONAL LAND SURVEYOR No. 4502 EXHIBITA Resolution No. 5- 22 -08 -07 i mff('.KLL PMIIOI'14A R roR)CCHT- CF -N4Y OCN =FETE FiK:M -OF -WAY }y.,n,L -O)�'• - Vy7A8> E siRVElOR's CERIIFICAT=' MAFKP. FOUND FM 2818 I, AWZ %ERR, R.P.I NO 45a M "MR' Uftf-Y 7W TO PIL BLS OI MY KND4LEDGE TNS I 2t I 1 ' CUaCFE1E NICfIT- OF - M . ' ! ,,JIM et`s° PLAT IS A TRUE 4CINb_NDFAMON M A SURVEY MATE O4 THE CFOUN] U46ER MY SUPFUVS901, Am 9x`54' 1:1" F s 1.'N: REr Fif}fT- OF -N'AY wFKtp tVAT THERE AFE ND VISE E EKC- IOACAMENTS ON THIS TPA CT FYC A S Sf-OWV nEFIFON, 4 ; MAFK3i FOUNT T-IS TgAC- WES 140T L'F. 094N A fY :'amATrn 100 YE'Nf I'LME P1N Arco 1 4w Tn _ r ,- % TNF F MAF�, COVMUNITY PAHL_ Na asu41071T C. Ef-FCri.E [DATE: C7 !992 rI �Y� J4 C ii 1 A C'1Y OF COLLEGE SIA.70N 8RAU K` -kR � GY•S1°.i EcTqr CASEMT BTU. '612 /267 EY F!E4°fCkCU r'kIYL5- •_704¢. � POINT 0 \Ih �y � 6450/42 Il!'ID SumLTC:R W. 4'1.2 SCALF: 1 ' = 200 I INF DISTATJCF T BEARING .' Sffl two" tV[:71 R1,0 M-0 i 1 't9.65' S 7S'C3'42" 'N !_ f L2 89.8/' S4 84'44'76" r I_} 97 -'W i 2(T54'43' E a ' . -5/D L4 -..._ 94.15' I -Tnvor w i mff('.KLL PMIIOI'14A R roR)CCHT- CF -N4Y OCN =FETE FiK:M -OF -WAY }y.,n,L -O)�'• - Vy7A8> E 5/8 .WLH IRON MAFKP. FOUND FM 2818 ROD SET I 2t I 1 ' CUaCFE1E NICfIT- OF - M . ' ! ,,JIM et`s° L2 9x`54' 1:1" F s 1.'N: REr Fif}fT- OF -N'AY wFKtp — 4 ; MAFK3i FOUNT - \ } _ r ,- % J4 C ii 1 A C'1Y OF COLLEGE SIA.70N I � GY•S1°.i EcTqr CASEMT BTU. '612 /267 EY l � POINT 0 \Ih �y � 6450/42 R= 575.00' J LI P. WATER UI VIV CASCA FM 6OL£R T( F' PriOP.' QED ].5': } j S ryh� .' Sffl two" tV[:71 R1,0 M-0 88 T 49/14b (%OF- c1UIL1.0 FE ` 1 I AL FAD ST 1 m la n c F 7Y 1 I p.IYC F%C j t jV �f <1 $.BD ACRE TRACT !_ f ?IPFI_r 0.5 a ' . -5/D :NOH RON 1 0. ^ g1. :1- 1 \' �' ITCG rcuw IRON RON .. R]1) SE hftl IRON j n - r y_ , o[; sr N!F G 1' TL5 F'RG-.'r ?TIE$, LTO. u \ Wy REM: 134.041 ACRE TRAM fh°� \ y rn l f f 3091/243 - \ } _ r % C'1Y OF COLLEGE SIA.70N Rz/U -, 0.7!66 ?,CPC TRACT l \Ih �y � 6450/42 R= 575.00' 5/2 NCH RO4 U�} RCO FC040 ryh� N!F ry l y TL5 F'RG-.'r ?TIE$, LTO. u \ Wy REM: 134.041 ACRE TRAM fh°� \ y rn l f f 3091/243 - \ } \Ih �y � R= 575.00' ryh� D- 3227'42' a ' . -5/D :NOH RON 1 y T- 167.39' : F �' ITCG rcuw I.C= 371.43' .. ! 1 I CR-S OS 17'33' w 1g p1' 4.99 ACRE TRACT S/9 �s. I RLm Fa.IN: FI)LI RCD FOLND 044 ,� � ..p 4/F - CF COLE -CF STATION ? `f f - REM. 5 C013 ACRE TRACT p. 8222/225 .f. V 20' WER LIVL EASEMENT I`14 1SAT 10 ELIC711 = ASDAwl Elm 6244/7' lop 5/A 1%LSl IRO% ROC FO:,NR POINT OF BEGIM IG ti L£'�E%D- 11 NH-EF Wk-',r S TE HO PEDESTAL m VVILLNI. NORM U'lLOY fq_E --v GUY M E ANCHCF< 1ER,AL ELEC�c- LINES RARffb wfa FEIaCE .'.HNX l[VN FENCE IAN, TM F. SURVEY FLAT OF A 5.50 ACHE 'kACT A.NU A 4.99 ACRE TR.--T CR.AIINFOR C-URNE- I_EAt;UE, A- 7 CO_LEGE ST B R , A_7_O_ S C TEXAS -- - -'! - SCALE 1 INCH = 26p FFF,T - -- SURVEY LIME; 12 - -07 -)0 PI AT DATF: 02 -2H -09 l - dOB NUMBER, 01 -895 C.aO 4AAr.E: 07 -•8951. C 1 FILE: T_S (cant); G7 - 295 Cob; t %14LT'AI?_6 UY: NS_IZ~'? 5Ji?'JLYI!13, LLC 50D CHURCH A —INUE, PC EO% 26q COLLEGE STATIG.N, -EY S 77841 PHCNF, (979) 2'_A -JIA3 SLL MC1L5 AND OWNDS PRIPA4ED 1104LAW, 2006. I UQ MCQE 2IES1a2PTr -f INTONwI"N: DEAF W. SYSTEM SHONN HEgECN IS 9A5• -^. ON CFID W.FMv AS ESTABLISHED FROM CPS 02SERiA'I34. Resolution No. 5- 22 -08 -07 EXHIBIT B METES & BOUNDS FOR TLS OPERATING CO.'S 4.365 ACRES Resolution No. 5- 22 -08 -07 METES AND BOUNDS DESCRIPTION OF A 4.365 ACRE TRACT CRAWFORD BURNETT SURVEY, A -7 COLLEGE STATION, BRAZOS COUNTY, TEXAS METES AND BOUNDS DESCRIPTION OF ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN THE CRAWFORD BURNETT SURVEY, ABSTRACT NO. 7, COLLEGE STATION, BRAZOS COUNTY, TEXAS. SAID TRACT BEING A PORTION OF THE REMAINDER OF A CALLED 134.041 ACRE TRACT AS DESCRIBED BY A DEED TO TLS PROPERTIES, LTD. RECORDED IN VOLUME 3 09 1, PAGE 243 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS. SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING AT A 5/8 INCH IRON ROD FOUND ON THE WESTERLY LINE OF JONES- BUTLER ROAD MARKING A NORTHEAST CORNER OF SAID REMAINDER OF 134.041 ACRE TRACT AND THE NORTH CORNER OF A CALLED 10.7466 ACRE TRACT AS DESCRIBED BY A DEED TO THE CITY OF COLLEGE STATION RECORDED IN VOLUME 6950, PAGE 42 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS; THENCE: S 42'32'57" W ALONG THE COMMON LINE OF SAID REMAINDER OF 134.041 ACRE TRACT AND SAID 10.7466 ACRE TRACT FOR A DISTANCE OF 574.71 FEET TO A 5/8 INCH IRON ROD SET MARKING THE SOUTH CORNER OF THIS HEREIN DESCRIBED TRACT, FOR REFERENCE A 5/8 INCH IRON ROD FOUND MARKING THE WEST CORNER OF SAID 10.7466 ACRE TRACT BEARS: S 42° 32'57" W FOR A DISTANCE OF 409.27 FEET; THENCE: THROUGH SAID REMAINDER OF 134.041 ACRE TRACT FOR THE FOLLOWING CALLS: N 11 ° 48' 11" W FOR A DISTANCE OF 155.74 FEET TO A 5/8 INCH IRON ROD SET ON THE SOUTH LINE OF AN EXISTING OILFIELD PAD SITE; N 78 11' 49" E FOR A DISTANCE OF 17.00 FEET TO A 5/8 INCH IRON ROD FOUND MARKING THE SOUTHEAST CORNER OF SAID PAD SITE; N 11 ° 48' 11" W FOR A DISTANCE OF 502.09 FEET TO A 5/8 INCH IRON ROD FOUND ON THE SOUTH LINE OF FM 2818 (VARIABLE WIDTH R.O.W.) MARKING THE NORTHEAST CORNER OF SAID PAD SITE; THENCE: ALONG THE SOUTH LINE OF FM 2818 FOR THE FOLLOWING CALLS: N 84 44'20" E FOR A DISTANCE OF 89.87 FEET TO A CONCRETE RIGHT -OF -WAY MARKER FOUND; S 88 54' 15" E FOR A DISTANCE OF 231.19 FEET TO A CONCRETE RIGHT -OF -WAY MARKER FOUND; EXHIBIT B Resolution No. 5- 22 -08 -07 S 47 15'43" E FOR A DISTANCE OF 208.29 FEET TO A CONCRETE RIGHT -OF -WAY MARKER FOUND ON THE WEST LINE OF JONES- BUTLER ROAD; THENCE: S 20'50'43" E ALONG THE WEST LINE OF JONES - BUTLER ROAD FOR A DISTANCE OF 92.54 FEET TO THE POINT OF BEGINNING CONTAINING 4.365 ACRES OF LAND, MORE OF LESS, AS SURVEYED ON THE GROUND DECEMBER 2007. SEE PLAT PREPARED MAY 2008 FOR MORE DESCRIPTIVE INFORMATION. BEARING SYSTEM SHOWN HEREIN IS BASED ON GRID NORTH AS ESTABLISHED FROM GPS OBSERVATION. BRAD KERR REGISTERED PROFESSIONAL LAND SURVEYOR No. 4502 D:/WORK/MAB /07 -895 C.MAB � KERR ° ���� 4502 Qvo� NQ ��SS Resolution No. 5- 22 -08 -07 0 0 II w w } J N U 'a 10 U 3 1 UL Zy w 0 Q Kz U OZ �O 77 = w� rl �w Z 1 U:2 �I M N RpP o oz �o w° o �Y /205 a z z w w w r NQ W� UW\ N W N W ° am W M W U4 o] m a a�m N�a�O I I C) Q Cl W V) Ir Q � L O (O O) M z 0 ( i�Z _2 Z N¢ d 5 02 09 QP O c GRAVEL ROAD z O Q N Q w� w J of 0a N o co ^ O orn Ln Z C) - (D , •mss s O �5o = z I n zR N � 48,j 4 " W N w } U N 7 7 3 10 O 1 UL Zy CO Q Kz U � 77 = w Ow rl Z 1 d � o M 't Q z� o� W 2 1 J J Q C T 000 F- j Z x z U� 00 z° Q 00 N� = N RpP o oz �o w° o �Y /205 a z z w w w r NQ W� UW\ N W N W ° am W M W U4 o] m a a�m N�a�O I I C) Q Cl W V) Ir Q � L O (O O) M z 0 ( i�Z _2 Z N¢ d 5 02 09 QP O c GRAVEL ROAD z O Q N Q w� w J of 0a N o co ^ O orn Ln Z C) - (D , •mss s O �5o = z I n zR N � 48,j 4 " W N 155• U L p d� 1 UL Zy F W JD= '-- O U 00- N W 0, rl Z 1 d � o M 't C N L i Lu 0 \J w0 1 ZF-0_M U G j Z N \O N� •s 9 O ti0 r�� dj 1 �Yj � 1 Resolution N. 5- 22 -08 -07 EXHIBIT C REAL ESTATE CONTRACT Resolution No. 5- 22 -08 -07 REAL ESTATE CONTRACT THIS CONTRACT OF SALE is made by and between the CITY OF COLLEGE STATION, TEXAS, a Texas Home Rule Municipal Corporation, situated in Brazos County, Texas ( "SELLER "), and ( "BUYER ") upon the terms and conditions set forth herein. ARTICLE I PURCHASE AND SALE 1.1 SELLER agrees to sell and convey and BUYER agrees to purchase and pay for the fee simple interest in the property described below: See Exhibit "A" attached hereto. hereinafter called "PROPERTY ", together with all and singular the rights and appurtenances pertaining to the PROPERTY, including all right, title and interest of SELLER in and to adjacent roads, streets, alleys or rights -of -way (all of such real property, rights, and appurtenances being herein referred to as the "PROPERTY "), together with SELLER's interest in any improvements and fixtures situated on and attached to the PROPERTY, for the consideration and subject to the terms, provisions, and conditions set forth herein. 1.2 City Council Approval. This Contract to purchase the PROPERTY is subject to approval by the City Council of the City of College Station, Texas, through bid award based upon the bid specifications as set out in Exhibit "B" attached hereto; such approval indicated by signature of SELLER's representatives to this CONTRACT OF SALE. 1.3 The SELLER has provided a survey of the PROPERTY. Said survey is attached hereto as Exhibit 11 1.4 BUYER may at its cost order a Phase 1 Environmental Site Assessment. 1.5 The parties agree that general real estate taxes on the PROPERTY for the then current year, interest on any existing indebtedness shall be prorated as of the closing date and shall be adjusted in cash at the closing. SELLER is a tax - exempt entity. BUYER agrees and understands that SELLER assumes no responsibility for rollback taxes, if any. 1.6 The sale of the PROPERTY shall be made by a Special Warranty Deed in the form prepared by BUYER attached hereto as Exhibit "C ". ARTICLE II PURCHASE PRICE 2.1 The value for said PROPERTY shall be as awarded by the City Council of the City of College Station to the successful bidder and is as follows: (desc. of prop.to be exchanged, if any) (desc. of cash, if any). 2.2 The purchase price shall be payable in full at closing. 2.3 This Agreement is effective upon execution by BUYER and award of bid by SELLER's City Council. Closing shall be at BRAZOS COUNTY ABSTRACT COMPANY at 3800 Cross Park Drive, Bryan, Texas 77802. 0ADepartment Files \Planning & Development\Dowling & Jones Butler construct \Real Estate Contract 3.doc 5/21/2008 Initial Page 1 of 6 Resolution No. 5- 22 -08 -07 ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER 3.1 SELLER hereby represents and warrants to BUYER as follows: (a) SELLER has the full right, power, and authority to enter into and perform its obligations under this Contract. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS. BUYER ACKNOWLEDGES THAT SELLER HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS AS TO THE PHYSICAL CONDITION, OR ANY OTHER MATTER AFFECTING OR RELATED TO THE PROPERTY (OTHER THAN WARRANTIES OF TITLE AS PROVIDED AND LIMITED HEREIN). BUYER EXPRESSLY AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PROPERTY IS CONVEYED "AS IS" AND "WITH ALL FAULTS ", AND SELLER EXPRESSLY DISCLAIMS, AND BUYER ACKNOWLEDGES AND ACCEPTS THAT SELLER HAS DISCLAIMED, ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, ORAL OR WRITTEN EXPRESS OR IMPLIED, (EXCEPT AS TO TITLE AS HEREIN PROVIDED AND LIMITED CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION, (1) THE VALUE, CONDITION, MERCHANTABILITY, HABITABILITY, MARKETABILITY, PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OF THE PROPERTY, (II) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO ANY IMPROVEMENTS ON THE PROPERTY HEREIN CONVEYED, AND (III) THE MANNER OF REPAIR, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF ANY SUCH IMPROVEMENTS. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER 4.1 BUYER represents and warrants to SELLER as of the effective date and as of the closing date that: (a) BUYER has the full right, power, and authority to purchase the PROPERTY from SELLER as provided in this Contract and to carry out BUYER's obligations under this Contract and all requisite action necessary to authorize BUYER to enter into this Contract and to carry out BUYER's obligations hereunder has been obtained on or before closing will have been taken. ARTICLE V CLOSING 5.1 The closing shall be held at Brazos County Abstract Company, within thirty (30) calendar days from the date of award of bid by SELLER, at such time and date as SELLER and BUYER may agree upon (the "closing date "). 5.2 At the closing, SELLER shall: (a) Prepare and Deliver to BUYER the duly executed and acknowledged Special Warranty Deed prepared by SELLER conveying the PROPERTY, free and clear of any and all liens, encumbrances, except as referenced in said Special Warranty Deed. O:\Department Files \Planning & Development \Dowling & Jones Butler construct \Real Estate Contract 3.doc 5/21/2008 Initial Page 2 of 6 Resolution No. 5- 22 -08 -07 (b) Deliver possession of the PROPERTY to BUYER. (c) At BUYER's election, deliver to BUYER, at BUYER's expense, a Title Policy insuring indefeasible title issued by Brazos County Abstract Company, in BUYER's favor in the full amount of the purchase price, insuring BUYER's FEE SIMPLE interest in the PROPERTY subject only to such exceptions as shown on the Special Warranty Deed. 5.3 Upon such performance by SELLER at closing, BUYER shall: (a) Convey the property owned by BUYER proposed to be exchanged for the PROPERTY by instrument in substantially the form as set forth in Exhibit D attached hereto. The property owned by BUYER to be exchanged is set forth in Exhibit E attached hereto. (b) Pay the balance of the purchase price. (c) Pay the BUYER's expenses or attorney fees. (d) Pay the escrow fees. (e) Pay the title insurance. (f) Pay the cost for tax certificates. (g) Pay any and all other costs associated with the closing of the transaction. (h) Pay the costs to obtain, deliver and record all documents other than those to be recorded at SELLER's expense. (i) Pay it's Broker fees. ARTICLE VI SPECIAL CONDITIONS None ARTICLE VII BREACH BY BUYER 7.1 In the event BUYER fails to fully and timely perform any of his /its obligations under this Contract or fail to consummate the sale of the PROPERTY for any reason except SELLER's default, SELLER may: (a) Enforce specific performance of this Contract; (b) Collect the Earnest Money; and /or (c) Bring suit for damages against BUYER. ARTICLE VIII BREACH BY SELLER 8.1 In the event SELLER fails to consummate the purchase of the PROPERTY (SELLER being in default and BUYER not being in default hereunder), BUYER shall have the right to bring suit against SELLER only for expectancy and incidental damages, if any. ARTICLE IX MISCELLANEOUS 9.1 Survival of Covenants: Any of the representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, pertaining to the period of time following the closing date, shall survive the closing and shall not be merged by deed or otherwise be extinguished. OADepartment Files\Planning & Development \Dowling & Jones Butler construct \Real Estate Contract 3.doc 5/21/2008 Initial Page 3 of 6 Resolution No. 5- 22 -08 -07 9.2 Notice: Any notice required or permitted to be delivered by this Contract shall be deemed received when sent by United States mail, postage prepaid, certified mail, return receipt requested, addressed to SELLER or BUYER, as the case may be, at the addresses set forth below: BUYER: Telephone (for reference) SELLER: City of College Station Legal Department 1101 Texas Avenue College Station, Texas 77840 9.3 Texas Law to Apply: This Contract shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created by this Contract are to be performed in Brazos County, Texas. 9.4 Parties Bound: This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. The persons executing this Contract do so in their capacities as set forth below and in no other capacity whatsoever, and such persons shall have no personal liability for executing this Contract in a representative capacity. All such liability is limited to the principal for which they execute this document as a representative. 9.5 Invalid Provision: In case any one or more of the provisions contained in this Contract shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Contract, and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in the Contract. In lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Contract a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. 9.6 Construction: The parties acknowledge that each party and its counsel have reviewed and revised this Contract and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Contract or any amendments or exhibits hereto. 9.7 Prior Agreements Superseded: This Contract embodies the entire agreement of the parties and supersedes any and all prior understandings or written or oral agreements between the parties respecting subject matter within and may only be amended or supplemented by an instrument in writing executed by the party against whom enforcement is sought. 9.8 Time of Essence: Time is of the essence to this Contract. 9.9 Gender: 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. 9.10 Multiple Counterparts: This Contract may be executed in a number of identical counterparts. If so executed, each of the counterparts shall, collectively, constitute but one agreement. In making proof of this Contract it shall not be necessary to produce or account for more than one counterpart. OADepartment Files \Planning & Development \Dowling & Jones Butler construct\Real Estate Contract 3.doc 5/21/2008 Initial Page 4 of 6 Resolution No. 5- 22 -08 -07 9.11 Memorandum of Contract: Upon request of either party, both parties shall promptly execute a memorandum of this agreement suitable for filing of record. EXECUTED on this the day of BUYER: BY: Title: Date: BY: Title: Date: List of Exhibits: Exhibit A SURVEY OF THE PROPERTY Exhibit B BID SPECIFICATIONS Exhibit C SPECIAL WARRANTY DEED Exhibit D FORM OF SWAP DEED Exhibit E SURVEY OF SWAP PROPERTY SELLER: 2008. CITY OF COLLEGE STATION BY: Mayor Date: ATTEST: City Secretary APPROVED: City Manager Date: Chief Financial Officer Date: City Attorney Date: OADepartment Files \Planning & Development \Dowling & Jones Butler construct \Real Estate Contract 3.doc 5/21/2008 Initial Page 5 of 6 Resolution No. 5- 22 -08 -07 +++++++++++++++++++++++++++++++++++++++++++++++++ + + + + + + + + + + + + + + + + + + + + + + + + + + + + + ++ THE STATE OF TEXAS § § ACKNOWLEDGMENT COUNTY OF BRAZOS § This instrument was acknowledged before me on the day of ' 200 by as of the CITY OF COLLEGE STATION, a Texas Home Rule Municipal Corporation, on behalf of said municipality. NOTARY PUBLIC in and for the STATE OF TEXAS ++++++++++++++++++++++++++++++++++++++++++++++++++ + + + + + + + + + + + + + + + + + + + + + + + + + + + + + ++ THE STATE OF TEXAS § § ACKNOWLEDGMENT (CORPORATE) COUNTY OF § This instrument was acknowledged before me on the day of 200_, by as of, a on behalf of said NOTARY PUBLIC in and for the STATE OF TEXAS ++++++++++++++++++++++++++++++++++++++++++++++++++ + + + + + + + + + + + + + + + + + + + + + + + + + + + + + ++ THE STATE OF TEXAS § § ACKNOWLEDGMENT (INDIVIDUAL) COUNTY OF § This instrument was acknowledged before me on the day of , 200_, by NOTARY PUBLIC in and for the STATE OF TEXAS O: \Department Files\Planning & Development \Dowling & Jones Butler construct \Real Estate Contract 3.doc 5/21/2008 Initial Page 6 of 6 Resolution No. 5- 22 -08 -07 EXHIBIT A TO Exhibit "C" Legal Description and Survey METES AND BOUNDS DESCRIPTION OF A 4.99 ACRE TRACT CRAWFORD BURNETT LEAGUE, A -7 COLLEGE STATION, BRAZOS COUNTY, TEXAS METES AND BOUNDS DESCRIPTION OF ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN THE CRAWFORD BURNETT LEAGUE, ABSTRACT NO. 7, COLLEGE STATION, BRAZOS COUNTY, TEXAS. SAID TRACT BEING A PORTION OF A CALLED 5.000 ACRE TRACT AS DESCRIBED BY A DEED TO THE CITY OF COLLEGE STATION RECORDED IN VOLUME 8222, PAGE 226 OF THE OFFICIAL PLI13LIC RECORDS OF BRAZOS COUNTY, TEXAS, AND A PORTION OF A CALLED 10.7466 ACRE TRACT AS DESCRIBED BY A DEED TO THE CITY OF COLLEGE STATION RECORDED IN VOLUME 6950, PAGE 42 OF THE OFFICIAL PLI13LIC RECORDS OF BRAZOS COUNTY, TEXAS. SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING AT 518 INCH IRON ROD FOUND ON THE NORTHWEST LINE OF DOWLING ROAD (VARIABLE WIDTH R.O.W.) MARKING THE SOUTH CORNER OF SAID 5.000 ACRE TRACT AND AN EAST CORNER OF THE REMAINDER OF A CALLED 134.041 ACRE TRACT AS DESCRIBED BY A DEED TO TLS PROPERTIES, LTD. RECORDED IN VOLUME 309 1, PAGE 243 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS; THENCE: N 47'16'04" W ALONG THE COMMON LINE OF SAID REMAINDER OF 134.041 ACRE TRACT AND SAID 5.000 ACRE TRACT, AT 426.65 FEET PASS A 518 INCH IRON ROD FOUND, CONTINUE ON FORA TOTAL DISTANCE OF 546.70 FEET TO A POINT MARKING THE WEST CORNER OF SAID 5.000 ACRE TRACT; THENCE: N 42" 32'3 1" E CONTINUING ALONG THE COMMON LINE OF SAID 5.000 ACRE TRACT AND SAID REMAINDER OF 134.041 ACRE TRACT, AT 79.96 FEET PASS A 518 INCH ROD FOUND, CONTINUE ON FOR A TOTAL DISTANCE OF 397.02 FEET TO A 518 INCH IROM &D FOUND MARKING THE COMMON CORNER OF SAID 5.000 ACRE TRACT AND SAID 10.7466 ACRE TRACT; THENCE: N 42" 32'57" E ALONG THE COMMON LINE OF SAID 10.7466 ACRE TRACT AND SAID REMAINDER OF 134.041 ACRE TRACT FOR A DISTANCE OF 212.49 FEET TO A POINT MARKING THE NORTH CORNER OF THIS HEREIN DESCRIBED TRACT; THENCE: S 10" 56' 18" E THROUGH SAID 10.7466 ACRE TRACT AND SAID 5.000 ACRE TRACT AND ALONG THE CENTERLINE OF A FUTURE RIGHT -OF -WAY FOR A DISTANCE OF 439.12 FEET TO A POINT MARKING THE BEGINNMG OF A CLOCKWISE CURVE HAVING A RADNS OF 575.00 FEET; THENCE: CONTINUING THROUGH SAID 5.000 ACRE TRACT AND ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 32'2742" FOR AN ARC DISTANCE OF 325.77 FEET (CHORD BEARS: S 05'17'33" W - 32 1.43 FEET) TO A POINT ON THE NORTHWEST LINE OF DOWLING ROAD MARKING THE ENDING POINT OF SAID CURVE; THENCE: S 43" 0 1'08" W ALONG THE NORTHWEST LINE OF DOWLING ROAD FORA DISTANCE OF 94.15 FEET TO THE POINT OF BEGINNING CONTAINING 4.99 ACRES OF LAND, MORE OR LESS, AS SURVEYED ON THE GROUND. BEARING SYSTEM SHOWN HEREIN IS BASED ON GRID NORTH AS ESTABLISHED FROM GPS OBSERVATION. BRAD KERR REGISTERED PROFESSIONAL Resolution No. 5-22-08-07 r. L V :1 A Tkutt QLIN�,T_N . A'V4 U , 3jF711 wl-Dr DS Tk_ CqWr LND7- UY S)J;; FRVt,o, Sl r AR_ %0 Vrb�_ F%CIC,-C.aWhTS rj•i T,1 ••c. DATE. c7 I flr 111!7 tic. r 2 �_O -H9.8 7' I 4 S4 15' S W M1Tr_14EL_L kj ��KWAY Rc, fir .11 PAW�my � - _ 0.*. ' 0R. -T — ��; _ _Nr F%A 2610 FC, Z L re ury 7 I 2/7W1 POINT OF F-RIEEI IS' 5.BD ACRE TRACT k 1•iic A AS F.Ai I r . % .15 7r. U 1% Rt Ij 42 � ' 115 J'R_r ; LI;) r 134 ; C4i ACF*% TRA::­ V ­V 1 43' v 4.99 ACRE TPACT A WID %OLNF - !ON R, '%J 5C-, TRACT WG7E. qra ISFn 1 11�4. All: 70• MINT OF BEGINVNG LISIMElfl 97Q 6� Z.J } � 7j 3 Sit UtJ AM WIJNLF: w.RC 5L ^f; BS - 11 Tf S>404N, r1 Kf.. 05 ES ARJSHM 1 Ot' CPB OBSEF­I�fk F 1`r _ - A A 4 f'jq - RA -7 STAT ON i t i 2co rrrT ru_: l[N-PAN' :,' BY: KLRi CD! - LF0F S�_ATICIj, 'TC 1 1 ";791 Resolutj_on No. 5- 22 -08 -07 CITY OF COLLEGE STATION 1101 Texas Avenue College Station, TX 77840 W W W.CSIX.LUV REAL PROPERTY SALE OR EXCHANGE BID #08 -64 BID OPENING DATE Friday, May 16, 2008 2:00 P.M. CST EXHIBIT B TO EXHIBIT "C" Bids will be received at the City of College Station Purchasing Department, 1101 Texas Avenue, College Station, TX 77842, until Friday, May 16, 2008, at 2:00 p.m. CST, and publicly opened and read aloud at City Hall, 1101 Texas Avenue, College Station, TX. Any questions concerning the bid should be directed to Cheryl Turney, C.P.M., Assistant Finance Director, at cturney ,cstx.go< - . Clearly mark return bid envelope with Bid # and Bid Opening Date. Bids are solicited for the sale or exchange of a certain tract of land located on North Dowling Road across from City of College Station Dowling Road Pump Station and described in the Brazos County Tax Records as R303812 in accordance with the following definitions, term and conditions of bidding. Should this bid contain the City's standard contract terms, conditions and insurance requirements, they will be attached as Exhibits. NOTE: Bid opportunities are posted on our website at www.cstx.14ov Some bids, but not all, are conducive to receipt of bids via the City of College Station On -Line Bidding System. These bids are encrypted and remain effectively locked until the due date and time. If you are interested in submitting your bid on -line, you must be registered with the City of College Station. See On -Line Bidding at wwvv.cstx.gov for more information. The tentative schedule for this Invitation to Bid is as follows: Release RFP to Vendors May 1, 2008 Advertisement Dates May 1 and May 2, 2008 Pre -Bid Conference May 9, 2008 Deadline for Questions and Inquiries May 12, 2008 Proposal Submission Deadline May 16, 2008 Earliest Award by City May 22, 2008 Resolution No. 5- 22 -08 -07 The following instructions apply to all bids and become a part of terms and conditions of any bid submitted to the City of College Station Purchasing Services Division, unless otherwise specified elsewhere in this bid request. All bidders are required to be informed of these Terms and Conditions and will be held responsible for having done so: Definitions In order to simplify the language throughout this bid, the following definitions shall apply: BUYER — The successful Bidder(s) of this bid request. CITY OF COLLEGE STATION — Same as City. CITY COUNCIL — The elected officials of the City of College Station, Texas given the authority to exercise such powers and jurisdiction of all City business as conferred by the State Constitution and Laws. CONTRACT — An agreement for the Sale of Real Estate. CITY — The government of the City of College Station, Texas. OWNER - City of College Station Acceptance Upon acceptance and approval by the City Council, or their designated official, this bid effects a working contract between the City and the successful bidder. All bids will remain subject to acceptance, for 30 days after the date of the Bid opening. Addenda If it becomes necessary to revise any part of this bid, a written addendum will be provided to all bidders. Owner is not bound by any oral representations, clarifications, or changes made in the written specification by Owner's employees, unless such clarification of change is provided to bidders in written addendum form from the Purchasing office. Addenda will be transmitted to all that are known to have received a copy of the bid documents and specifications. However, it shall be the sole responsibility of the Bidder to verify issuance of any addenda to check all avenues of document availability prior to the opening date and time. Bidder shall acknowledge receipt of all addenda. Advertisement The Invitation to Bid as advertised will be considered an inclusion of the specifications and conditions. Applicable Laws All bidders will comply with all Federal, State, and local laws relative to conducting business in the City of College Station. The laws of the state of Texas will govern as to the interpretation, validity, and effect of this bid, its award and any contract entered into. Assignments It is agreed that the successful bidder will not assign, transfer, convey or otherwise dispose of the contract or its right, title or interest in or to the same, or any part thereof, without previous written consent of City and any sureties. Resolution No. 5- 22 -08 -07 Award of Contract A contract may be awarded to the bidder who provides the best value for the City. In determining the best value for the City, the City may consider, but is not necessarily limited to, the following factors: a. conformity to specifications; b. the value of exchange c. the reputation of the bidder; d. the planned use of the property; e. the extent to which the proceeds meet the City's needs; f. the bidder's past relationship with the City; g. financial condition of bidder; h. the total long -term cost to the City to sell or exchange the property; and i. any relevant criteria specifically listed in this request for bid. Although the sale price offered is an essential part of the Bid, the City is not obligated to award a contract on the sole basis of price. Business Practices Minority business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, creed, sex, or national origin in consideration for an award. Cancellation The City reserves the right to cancel this contract or any portion thereof immediately for buyers failure to comply with terms stated in contract. Certification Bids must be completed and submitted on the form included within the specifications of this bid. Certification of Bid must be fully completed. Collusion Advanced disclosures of any information to any particular bidder which gives that particular bidder any advantage over any other interested bidder in advance of the opening of bids, whether in response to advertising or an informal request for bids, made or permitted by a member of the governing body or an employee or representative thereof, will cause to void all proposals of that particular bid solicitation or request. Communication The City shall not be responsible for any verbal communication between any employee of the City and potential bidder(s). Only written specifications and price quotations will be considered. Confidentiality Public agencies in Texas are subject to the Public Information Act. Electronic Documents Bidders may be supplied with the original documents in electronic form to aid in the preparation of bid(s). By accepting these electronic documents, Bidders agree not to edit or change the language or format of these documents. Submission of a proposal by Bidder signifies full agreement with this requirement. Resolution No. 5- 22 -08 -07 Exceptions The bidder will note any exceptions to the conditions of this bid. If no exceptions are stated, it will be understood that all general and specific conditions will be complied with, without exception. Financial Condition Contractor must provide audited financial statements, if requested, to the City. Forms Bid proposals will be submitted on the forms provided by Owner. All figures must be written in ink or typewritten. However, mistakes may be crossed out, corrections inserted adjacent thereto and initiated in ink by the person signing the proposal. When discrepancies occur between words and figures, the words shall govern. Indemnification The successful bidder agrees by entering into this contract, to defend, indemnify and hold Owner harmless from any and all causes of action or claims of damages arising out of or related to bidder's performance under this contract. Independent Contractor Nothing in this bid is intended nor shall be construed to create an employer /employee relationship between the contracting parties. Interlocal Aureement Successful bidder agrees to extend prices and terms to all entities who have entered or will enter into joint purchasing interlocal cooperation agreement(s) with the City of College Station. Manaeement Should there be a change in ownership or management, the contract shall be canceled unless a mutual agreement is reached with the new owner or manager to continue the contract with its present provisions and prices. This contract is nontransferable by either party. No Bid If unable to bid, please sign and return this form by return mail, advising reason for not submitting quotation. Notification The City of College Station uses multiple channels for the notification and dissemination of all invitations to bid. Approved methods of dissemination include: City of College Station website or the City of College Station Purchasing office. The receipt of solicitations through any other means may result in the receipt of incomplete specifications or addenda which could ultimately render your bid non - compliant. City of College Station accepts no responsibility for the receipt or notifications of solicitations through any other source. Priority of Documents In the event there are inconsistencies between the general provisions and other bid terms or conditions contained herein, the latter will take precedence. Receipt of Bids Bids must be received by the Purchasing Services Division prior to the time and date specified. The mere fact that the bid was dispatched will not be considered; the bidder must insure that the Resolutlon No. 5- 22 -08 -07 bid is actually delivered. Bids received after that time will be returned unopened to the bidder. Faxed bid responses are not acceptable Reimbursements There is no expressed or implied obligation for the City of College Station to reimburse responding firms for any expenses incurred in preparing bids in response to this Invitation to Bid and the City of College Station will not reimburse responding firms for these expenses, nor will the City of College Station pay any subsequent costs associated with the provision of additional information or presentation, or to procure a contract for sale of property as specified herein. Reservations The City reserves the right to accept or reject in part or in whole, any bids submitted, and to waive any technicalities for the best interest of the City. The City reserves the right to reject any bid that does not fully respond to each specified item. Satisfaction All terms and conditions of the contract, and specifications must be satisfactorily met; including the submission to the City of any and all documentation as may be required before award recommendation will be submitted to City Council. Severability The invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision. Standard Contracts Should this bid include any of the City's Standard Contracts (Attachment A), all bidders shall be required to thoroughly read and understand the terms, conditions and provisions in these documents. The successful bidder shall be responsible for compliance with these terms and conditions. All required Certificates of Insurance and endorsements will be required before award recommendation is taken to City Council. Any exceptions taken to City's standard contracts may cause bid to be considered non - responsive. Tax Exempt Owner is exempt from State Retail Tax and Federal Excise Tax. The price bid must be net, exclusive of taxes. Venue Any resulting contract shall be governed by and construed and enforced in accordance with the laws of the State of Texas Withdrawal Bidders may request withdrawal of a posted sealed proposal prior to the scheduled bid opening time, provided the request for withdrawal is submitted to the Purchasing Agent in writing. Owner reserves the right to reject any and all bids by reason of this request. Bids may not be withdrawn after the bid opening time. Resolution No. 5- 22 -08 -07 Pre -Bid Conference A Pre -Bid Meeting will be held at the City of College Station, City Hall, 1101 Texas Ave., College Station, Texas Second Floor Conference Room at 2:00 p.m., Friday, May 9, 2008. This meeting is not mandatory, but attendance is highly recommended. Contract for Sale A Contract for Sale of Real Estate will be executed on or before Council approval stating the identity of the College Station property and the identity of any property proposed as an exchange. Appraisals for any proposed land exchange must be attached to the Bid. Possession and Use Agreement A Possession and Use Agreement will be executed on or before Council approval authorizing the City to gain possession and use of any proposed land offered in exchange, prior to closing on the property, for the purpose of site development for a future electrical substation owned by the City. Deed A Special Warranty Deed will be executed on or before Council approval. Inspections The property is located on North Dowling Road across from City of College Station Dowling Road Pump Station and described in the Brazos County Tax Records as R303812. Bidder acknowledges that the City of College Station has provided the Bidder with the opportunity to inspect the property prior to bidding on and/or exchanging and/or purchasing the property and the Bidder has or has not so inspected the property as his, or her, sole discretion. Bidder acknowledges that the decision to exchange or purchase the property is entirely their own and the Bidder has not relied on any representation or warranty made by any officer, employee, or agent of City of College Station in deciding to exchange or purchase the property. Each bidder shall be held to have examined the property under consideration and confirm that he, or she, fully understands and is cognizant of all factors related to the exchange and/or sale of the property listed herein. Closing The Bidder shall close on the transaction within 30 business days of notice from the City of College Station of the award of bid. The successful bidder will be responsible for closing costs associated with the transaction, if any, and any real estate fees that may be incurred by the Buyer. Financing Purchaser must arrange their own financing and complete the closing transaction within thirty (30) days of the bid award; additional time may be considered under special circumstances. Bidder may elect to include, in his/her bid, evidence of financing or availability of funds to complete this transaction. The City will not pay seller points, closing costs or real estate transaction fees. Indemnity Bidder/Buyer acknowledges that City has not made and does not make any representations as to the physical condition of the property, or any other matter affecting or related to the property (other than warranties of title to the structure as provided and limited herein). Resolution No. 5- 22 -08 -07 Bidder/Buyer expressly agrees that to the maximum extent permitted by law, the property is conveyed "as is" and "with all faults ", and City expressly disclaims, and buyer acknowledges and accepts that seller has disclaimed, any and all representations, warranties or guaranties of any kind, oral or written, express or implied (except as to title as herein provided and limited) concerning the property, including without limitation (i) the value, condition, merchantability, habitability, marketability, profitability, suitability or fitness for a particular use or purpose, of the property (ii) the manner or quality of the construction, or the materials, if any, incorporated into the construction, and (iii) the manner of repair, quality of repair, state of repair or lack of repair of the property. By Bidderibuyer's submittal of a bid, bidder /buyer represents that it has made (i) all inspections of the property to determine its value and condition deemed necessary or appropriate by buyer, including, without limitation, inspections for the presence of asbestos, lead based paint, pesticide residues, hazardous waste and other hazardous materials. Omissions The apparent silence of specifications as to any detail or the apparent omission from it of a detailed description concerning any point, shall be regarded as meaning that only the best commercial practices are to prevail. All interpretations of these specifications shall be made on the basis of this requirement. Regulations The Buyer is responsible for meeting or exceeding all Federal, State of Texas, and local safety, health, and traffic regulations and standards in effect and applicable at the time of award. The Buyer is responsible for obtaining all appropriate permits when required. �. � ,AO .,�a°,,,a�` e�ye`` f r - r - s' �. �`� ✓br `'. s+r�� yv �� {Y General The City of College Station is authorized to sell or exchange real property by utilizing the sealed bid procedure in accordance with Texas Local Government Code §272.001. Generally speaking the description of the property for sale or exchange is 4.99 acres from the 15.7446 acres out of the Crawford Burnett League, Abstract 7, College Station, Brazos County, Texas. Consideration for Sale or Exchange The City will consider an exchange of land equal or greater than the size and value of the City's property described above; however, in no event will the City pay cash or any other consideration for any greater difference in values. A proposed land exchange must be able to be developed as an electrical substation, two ground storage water reservoirs (5 millions gallons each), and a water well with adjacent treatment facility. A proposed land exchange must be within the College Station electrical certification area or within 500 ft. thereof and be adjacent to 138kv electrical transmission facilities. A proposed land exchange must also be configured to allow adequate space for water storage reservoirs to be adjacent to each other. Legal Description The real property offered for sale or exchange by sealed bid is fully described in Exhibit "A" which includes the meets and bounds and survey map. Improvements None Resolution No. 5- 22 -08 -07 Appraisal Pursuant to Texas Local Government Code §272.001, the land and those interests described herein may not be conveyed, sold, or exchanged for less than the fair market value of the land and interests. In no event will the City's land be sold or exchanged for less than $380,000.00. All proposed exchanges must include a formal appraisal by a certified appraiser for any proposed tract considered for sale or exchange. The appraisal must be submitted with the bid proposal. Zoning The property is zoned A -O Agriculture Open. Surve The real property offered for sale or exchange by sealed bid is fully described in Exhibit A which includes the meets and bounds and survey map. City of College Station owns a certain tract of land located on North Dowling Road across from City of College Station Dowling Road Pump Station and described in the Brazos County Tax Records as R303812 and more fully described by metes and bounds and survey (Exhibit A). VALUE OF PROPOSED SALE OR EXCHANGE OF LAND $ 7 -0100 GENERAL DESCRIPTION OF PROPOSED LAND EXCHANGE (Appraisal and legal description must be attached) Resolution No. 5- 22 -08 -07 + ` fl AW11i R1 1 i' ^e e l' �y#i. M M ""My The undersigned affirms that they are duly authorized to execute this contract, that this bid has not been prepared in collusion with any other bidder, and that the contents of this bid have not been communicated to any other bidder prior to the official opening of this bid. Additionally, the undersigned affirms that the firm.is willing to sign the enclosed Standard Form of Agreement (if applicable).;' Signed By: Title: t r Typed Name: R c A . S i T7 4 Company Name: 71 S a PIRA ^JG eo, FR 1i ��or' PA R rr�tA . 7'cs EKTiC —S L %a Phone No.: ' — 5 6 ° Fax No.: 71 3 – �-6 t — S G G Z Email: BS t3 HGLE /Z (P. Co/Y1 fg ST'./JE i Bid P.O. Box or Street City State Zip Order Address: P.O. Box or Street City State Zip Remit Address: P.O. Box or Street City State Zip Foderal Tax ID No.: -7 G ` 05-6 y 3 6 Date: END OF BID #08-64 Resolution No. 5- 22 -08 -07 _HMSO■ \F ■■ ■■ JOHN M. HAMILTOIV INCORPORATED REAL ESTATE APPRAISERS AND CONSULTANTS May 15, 2008 MR. JACK HENDRIX CAPSTONE DEVELOPMENT 431 OFFICE PARK DRIVE BIRMINGHAM, AL 35223 RE: SUMMARY APPRAISAL OF THE PROPERTY BRIEFLY DESCRIBED AS 5.851 ACRES FROM +1- 100.393 ACRES OUT OF THE CRAWFORD BURNETT LEAGUE, ABSTRACT 7, COLLEGE STATION, BRAZOS COUNTY, TEXAS, CURRENT PROPERTY OWNER BEING TLS PROPERTIES. Dear Mr. Hendrix: At your request, we have evaluated a 4.365 -acre tract, which is part of a 5.851 -acre tract previously appraised for you on February 18, 2008. Your attention is directed to that report for a more detailed analysis of the property. A copy of the survey and Metes & Bounds description of the 4.365 -acre tract is contained in the addenda of this report. MARKET VALUE DEFINED: The generally accepted opinion of market value as defined by the courts of Texas may be stated as follows: "Market Value is the price which the property would bring when it is offered for sale by one who desires, but is not obligated to sell, and is bought by one who is under no necessity of buying it, taking into consideration all of the uses to which it is reasonably adaptable and or which it either is or in all reasonable probability will become available within the reasonable future ". This definition is similar to that utilized by the Appraisal Institute. INTENDED USE OF REPORT: This appraisal is intended to assist the client, Mr. Jack Hendrix, in determining the market value of the subject properties as of May 15, 2008. INTEREST VALUED: The fee simple title is regarded as an estate without limitations or restrictions. Anything less than the complete estate results from partial interest that are created by selling, leasing, or otherwise limiting the bundle of rights in a fee estate. An appraisal assignment may require the appraisal of fee simple title or a partial interest such as a leasehold estate or easement. The three most common types of property rights involved in the appraisal process are defined as follows: Fee simple estate — "Absolute ownership unencumbered by any other interest or estate, subject only to the limitations improved by the governmental powers of taxation, eminent domain, police power, and es cheat."' 2. Leased fee estate — "An ownership interest held by a landlord with the rights of use and occupancy conveyed by lease to others. The rights of the lesser (the leased fee owner) and the leased fee as specified by contract terms contained within the lease. "' Leasehold estate — "The interest held by the lessee (the tenant or renter) through a lease conveying the rights of use and occupancy for a stated term under certain conditions. "' The property rights of ownership which are being appraised in this report are Fee Simple Interest. 123 The Dictionary of Real Estate Appraisal 3rtl Edition, Appraisal Institute, 1193, p. 140 3131 BRIARCREST DRIVE. SUITE 11 I ( -0200 • FAX 19791731 -8809 BRYAN, TX 77802 Resolution No. 5- 22 -08 -07 HIGHEST AND BEST USE According to the Appraisal Institute in The Appraisal of Real Estate (12th Edition), highest and best use may be defined as, "The use, from among reasonably probable and legal alternative uses, found to be physically possible, appropriately supported, financially feasible, and that results in the highest present land value." The crucial elements of this definition suggest that the highest and best use must be, "(1) physically possible, (2) legally permissible, (3) financially feasible, and (4) maximally productive." In conclusion, to be a highest and best use it must meet all four criteria. If the proposed highest and best use cannot meet all the criteria, i.e., it is financially feasible but not physically possible, then it must be disregarded. After considering the various physical attributes of the subject tracts, as well as the current economic conditions within the subject area, it is our opinion that the highest and best use of the subject property is single or multi - tenant commercial /industrial use. SALES COMPARISON APPROACH TO VALUE To estimate the current market value of the subject tracts, the Sales Comparison Approach to value was utilized. In this approach, the deed records were searched for sales involving properties considered comparable to the subject site and indicative of market trends for such properties. These sales were compared directly to the subject property, so as to estimate from this comparison, its indicated current market value. It should be noted at this point that the market data included herein does not represent a complete inventory of real estate activity in the area, but are those properties which are considered to be most similar to the subjects. In the valuing of properties with the Sales Comparison Approach there are several units of comparison that may be utilized. Similar properties to the subjects are sold on a price per square foot basis. Therefore, this was the method utilized in our analysis. 4.365 acres or 190,139square feet @ 2.00 per square foot = $380,278.00 SAY: $380,000.00 Resolution No. 5- 22 -08 -07 STATEMENT OF LIMITING CONDITIONS AND APPRAISER'S CERTIFICATION CONTINGENT AND LIMITING CONDITIONS: 1. The appraiser will not be responsible for matters of a legal nature that affect either the property being appraised or the title to it. The appraiser assumes that the title is good and marketable and, therefore, will not render any options about the title. The property is appraised on the basis of it being under responsible ownership. 2. If the appraiser has provided a sketch in the appraisal report, it is to show approximate dimensions of the improvements and the sketch is included only to assist the reader of the report in visualizing the property and understanding the appraisers' determination of its size. 3. The appraiser has examined the available flood maps that are provided by the Federal Emergency Management Agency (or other data sources) and has noted in the appraisal report whether the subject site is located in an identified Special Flood Hazard Area. Because the appraiser is not a surveyor, he or she makes no guarantees, express or implied, regarding this determination. 4. The appraiser will not give testimony or appear in court because he or she made an appraisal of the property in question, unless specific arrangements to do so have been made beforehand. 5. The appraiser has noted in the appraisal report any adverse conditions (such as needed repairs, depreciation, the presence of hazardous wastes, toxic substances, etc.) observed during the site visit, if made, of the subject property or that he or she became aware of during the normal research involved in performing the appraisal. Unless otherwise stated in the appraisal report, he appraisers have no knowledge of any hidden or unapparent conditions if the property or adverse environmental condition (including the presence of hazardous wastes, toxic substances, etc.) that would make the property more or less valuable, and has assumed that there are no such conditions and makes no guarantees or warranties, express or implied, regarding the condition of the property. The appraiser will not be responsible for any such conditions that so exist or for any engineering or testing that might be required to discover whether such conditions exist. Because the appraiser is not an expert in that field of environmental hazards, the appraisal report must not be considered as an environmental assessment of the property. 6. The appraiser represents that he /she is not an expert to appraise insulation or other products banned by the Consumer Products Safety Commission which might render the property more or less valuable. In connection with this appraisal, the appraiser has not inspected or tested for, nor taken into consideration in any respect the presence or absence of insulation or other said products increase or decrease in the value of the property from the value placed thereon by the opinion of the appraiser. 7. The appraiser obtained the information, estimates, and opinions that were expressed in the appraisal report from sources that he or she considered to be reliable and believe them to be true and correct. The appraiser does not assume responsibility for the accuracy of such items that were furnished by other parties. The appraiser will not disclose the contents of the appraisal report except as provided for in the Uniform Standards of Professional Appraisal Practice. 9. Neither all, nor any part of the content of the report, or copy thereof, (including conclusions as to the property value, the identify of the appraiser, professional designations, reference to any professional appraisal organizations, of the firm with which the appraiser is connected), shall be used for any purposes by anyone but the client specified in the report, the borrower if appraisal fee paid by same, the mortgagee or its successors and assigns, mortgage insurers, consultants, professional appraisal organizations, any state or federally approved financial institution, any department agency, or instrumentality of the United States or any state of the District of Columbia, without previous written consent of the appraiser; nor shall it conveyed by anyone to the public through advertising, public relations, news, sales, or other media, without the written consent and approval of the appraiser. Resolution No. 5- 22 -08 -07 10. On all appraisals, subject to satisfactory completion, repairs, or alternations, the appraisal report and value conclusion is contingent upon completion of the improvements in a workmanlike manner using quality materials. 11. Unless otherwise stated in the report, no attempt was made to determine if a 404 Permit regarding Wetlands has or has not been issued for the property. The client is urged to retain an expert in his field. 12. The analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the rules of the Texas Real Estate Commission and the Uniform Standards of Professional Appraisal Practice and FIRREA. 13. This appraisal assignment is not based on a requested minimal valuation, a specific valuation, or the approval of a loan. 14. The appraiser's compensation is not contingent upon the reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value estimate, the attainment of a stipulated result, or the occurrence of a subsequent value. 15. The use of this report assumes and signifies reading and acceptance of all limiting conditions. 16. The Americans with Disabilities Act (ADA) became effective January 26, 1992. We have not made a specific compliance survey and analysis of this property to determine whether it is in conformity with the various detailed requirements of the ADA. It is possible that a compliance survey of the property, together with a detailed analysis of the requirements of the ADA, could reveal that the property is not in compliance with one or more of the requirements of the Act. If so, this fact could have a negative effect upon the value of the property. During the appraiser's limited inspection, she or he did not develop any information that indicated any major noncompliance with the requirements. Since we have no direct evidence relating to this issue, we did not consider possible noncompliance with the requirements of ADA in estimating the value of the property. 17. ENVIRONMENTAL: The value estimate in this report is based on the assumption that the property is not negatively affected by the existence of hazardous substances or detrimental environmental conditions. The appraiser is not an expert in the identification of hazardous substances or detrimental environmental conditions. The appraiser's limited inspection of and routine inquires about the subject property did not develop any information that indicated any apparent significant hazardous substances or detrimental environmental conditions, except that previously listed, which would affect the property negatively. It is possible that tests and inspections made by a qualified hazardous substance and environmental expert would reveal the existence of hazardous materials and environmental conditions on or around the property that would negatively affect its value. 18. The liability of John M. Hamilton Incorporated, and its sole owner, John M. Hamilton, is limited to the Client only and to the amount of the fee actually paid for the services rendered, as liquidated damages, if any related dispute arises. Further, there is no accountability, obligation, or liability to any third party. If this report is placed in the hands of anyone other than the Mr. Kenneth M. Robison (Client), the Client shall make such party aware of all limiting conditions and assumptions of the assignment and related discussions. The Appraiser is in no way to be responsible for any costs, incurred to discover or correct any deficiencies of any type present in the property; physically, financially, and /or legally. Client also agrees that in case of lawsuit (brought by lender, partner or part owner in any form of ownership, tenant or any party), Client will hold Appraiser completely harmless from and against any liability, loss, cost, or expense incurred or suffered by Appraiser in such action, regardless of its outcome. 19. Special assumptions have been made in some of the sections of the report for the purpose of determining an estimate of value. These assumptions are necessary in regard to such items as hidden construction details, the amount of amounts of insurance coverage, maintenance expenditures, etc. These assumptions are based upon the best knowledge and judgment of the appraiser, and are believed to be typical of the actions of buyers, sellers, and investors in the market. Resolution No. 5- 22 -08 -07 These special assumptions include the following: • It is assumed that any other easements or encroachments that could be specifically located do not have a detrimental affect on the value of the subject property. • It is assumed that the division of the mineral rights will not affect the surface value of the subject property. • It is assumed that there are no known or unknown environmental conditions other than those noted within this report. • It is assumed that there are no hidden or unapparent subsoil or structural conditions other than those noted within this report. CERTIFICATE AND FINAL VALUE ESTIMATE The undersigned does hereby certify that, except as otherwise noted in this appraisal report We have no present or prospective interest in the property that is the subject of this report and no personal interest with respect to the parties involved. We have no bias with respect to the property that is the subject of this report or to the parties involved with this assignment. To the best of our knowledge and belief, the statements of fact contained in this appraisal report upon which the analysis, opinions, and conclusions expressed herein are based, are true and correct. The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions, and are our personal, impartial, and unbiased professional analyses, opinions, and conclusions. Our engagement in this assignment was not contingent upon developing or reporting predetermined results. Our compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal. The reported analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the requirements of the Appraisal Institute's Code of Professional Ethics and the Standards of Professional Practice of the Appraisal Institute, which include the Uniform Standards of Professional Appraisal Practice. Resolution No. 5- 22 -08 -07 We certify that the use of this report is subject to the requirements of the Appraisal Institute relating to review by its duly authorized representatives. No one provided significant real property assistance to the person signing this certification. As of the date of this report, John M. Hamilton has completed the requirements of the continuing education program of the Appraisal Institute. It is the intent of this appraisal report to be in compliance with the guidelines as specified by the client The value estimate contained herein is effective as of May 15, 2008. $380,000.00 JOHN M. HAMILTON INCORPORATED # ohn M. Hamilton, MAI 22674-G Resolution No. 5- 22 -08 -07 EXHIBIT C TO EXHIBIT "C" NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED DATE: GRANTOR: THE CITY OF COLLEGE STATION, TEXAS GRANTOR's MAILING ADDRESS: (including county) 1101 Texas Avenue Brazos County College Station, Texas 77840 GRANTEE: GRANTEE'S MAILING ADDRESS: (including county) CONSIDERATION: Ten Dollars ($10.00) and other good and valuable consideration. PROPERTY: See Exhibit "A" attached hereto and incorporated herein by reference RESERVATIONS FROM AND EXCEPTIONS TO CONVEYANCE AND WARRANTY: Any and all easements, liens and encumbrances lawfully existing at the time of conveyance. O: (Department FileslPlanning & DevelopmentlDowling & Jones Butler constructlresol 1 ex. C to ex C I.docJI201200811:29:52 AM Resolution No. 5- 22 -08 -07 GRANTOR expressly advises GRANTEE that all the oil, gas and other minerals and mineral rights in and to the Property together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring the Property for oil and gas and other minerals and producing, storing, treating, marketing and removing the same therefrom and with the right and power at any and all times to grant oil, gas and mineral leases and to enter into development contracts therein or with respect thereto have been previously retained. GRANTOR, for the consideration and subject to the reservations from and exceptions to conveyance and warranty, GRANTS, SELLS, and CONVEYS to GRANTEE the Property, together with all and singular the rights and appurtenances thereto in any wise belonging, to have and hold it to GRANTEE and GRANTEE's successors and assigns forever. GRANTOR binds GRANTOR and GRANTOR's legal representatives, successors and assigns to warrant and forever defend all and singular the property to GRANTEE and GRANTEE's successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, thru and under GRANTOR but not otherwise, and except as to the reservations from and exceptions to conveyance and warranty recited above. GRANTEE ACKNOWLEDGES THAT GRANTOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS AS TO THE PHYSICAL CONDITION, OR ANY OTHER MATTER AFFECTING OR RELATED TO THE PROPERTY (OTHER THAN WARRANTIES OF TITLE AS PROVIDED AND LIMITED HEREIN). GRANTEE EXPRESSLY AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PROPERTY IS CONVEYED "AS IS" AND "WITH ALL FAULTS," AND GRANTOR EXPRESSLY DISCLAIMS, AND GRANTEE ACKNOWLEDGES AND ACCEPTS THAT GRANTOR HAS DISCLAEVIED, ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTIES, OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, (EXCEPT AS TO TITLE AS HEREIN PROVIDED AND LIMITED) CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION, (1) THE VALUE, CONDITION, MERCHANTABILITY, HABITABILITY, MARKETABILITY, PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTCULAR USE OR PURPOSE, OF THE PROPERTY, (II) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO ANY IMPROVEMENTS ON THE PROPERTY HEREIN CONVEYED, AND (III) THE MANNER OF REPAIR, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF ANY SUCH IMPROVEMENTS. When the context requires, singular nouns and pronouns include the plural. NAME THE STATE OF TEXAS COUNTY OF BRAZOS ACKNOWLEDGMENT This instrument was acknowledged before me on this the day of 2008, by OADepartment FilesTlanning & Development0owling & Jones Butler construcAresol 1 ex. C to ex C l.doc5/20/200811:29:52 AM Resolution No. 5- 22 -08 -07 Notary Public in and for the State of Texas RETURN ORIGINAL TO: Bruce A. Smith P.O. Box 19572 Houston, Tx 77224 -9572 OADepartment FilesTlanning & Development\Dowling & Jones Butler construcftresol 1 ex. C to ex C l.doc5/20/200811:29:52 AM Resolution No. 5- 22 -08 -07 EXHIBIT D TO EXHIBIT "C" NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED Date Grantor TLS PROPERTIES, LTD., a Texas limited partnership Grantor's Mailing Address PO BOX 19572, Houston, TX 77224 -9572 Grantee CITY OF COLLEGE STATION, a political subdivision of the State of Texas Grantee's Mailing Address 1101 Texas Ave., College Station, TX 77842 Consideration Ten Dollars ($10.00) and other good and valuable consideration Property That certain 4.3 65 acres of land described in Exhibit "A" attached hereto and incorporated herein by reference. Exceptions to Conveyance and Warranty GRANTOR and GRANTOR's heirs, legal representatives and assigns, expressly reserve all interests in the oil, gas, and other minerals that are in and under the Property and that may be produced from it. Notwithstanding the use of the words "other minerals" in this paragraph, and as to the reservation by GRANTOR and GRANTOR's heirs, legal representatives and assigns, it is expressly agreed that GRANTOR's reservation applies only to oil, gas and liquid hydrocarbons produced in association with oil or gas, whether in liquid or gaseous form, or other form, and GRANTOR expressly agrees such reservation does not include, without limitation, coal, lignite, uranium, thorium, vanadium or any other fissionable mineral, which are expressly excluded from GRANTOR's reservation in this paragraph, save and except to the extent that any such substance is in solution with, or held in suspension by, oil or gas or other hydrocarbons in gaseous or liquid form and the same is necessarily and indispensably produced along with and as an incidental by- product of the production of a hydrocarbon substance. GRANTOR further expressly agrees that GRANTOR and GRANTOR's heirs, legal representatives and assigns waive the right to use any of the surface of the Property for production of oil, gas and other minerals reserved hereby. The interest reserved by GRANTOR per this paragraph is subject to an existing lease for oil and gas or oil, gas and other minerals, and GRANTOR is entitled to receive the royalties and other benefits that are associated with the interest and payable under the lease and this conveyance is subject to said lease. Subject to said lease, GRANTOR agrees that GRANTOR and GRANTOR's heirs, legal representatives and assigns waive their right to the water located under the Property and will so restrict any future oil, gas and mineral lease. Additionally, this conveyance is subject to all easements and other matters of record or that are visible on the ground to the extent (but no further) that the same are valid, subsisting and affect the Property. 642596.3/SP11/11351/0103/051508 1 Resolution No. 5- 22 -08 -07 GRANTOR warrants that there are no liens covering the Property and taxes on the Property have been paid through 2007. Grant. Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and warranty, GRANTS, BARGAINS, SELLS and CONVEYS unto Grantee the Property, together with all and singular the rights and appurtenances thereto in any wise belonging, to have and hold it to GRANTEE and GRANTEE'S successors and assigns forever. GRANTOR binds GRANTOR and GRANTOR'S successors and assigns to warrant and forever defend all and singular the Property to GRANTEE and GRANTEE'S successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, thru and under GRANTOR but not otherwise. GRANTEE, ACKNOWLEDGES THAT GRANTOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS AS TO THE PHYSICAL CONDITION, OR ANY OTHER MATTER AFFECTING OR RELATED TO THE PROPERTY (OTHER THAN WARRANTIES OF TITLE AS PROVIDED AND LIMITED HEREIN). GRANTEE EXPRESSLY AGREES THAT TO THE MAXMUM EXTENT PERMITTED BY LAW, THE PROPERTY IS CONVEYED "AS IS" AND "WITH ALL FAULTS," AND GRANTOR EXPRESSLY DISCLAIMS, AND GRANTEE ACKNOWLEDGES AND ACCEPTS THAT GRANTOR HAS DISCLAIMED, ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTIES, OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, (EXCEPT AS TO TTI'LE AS HEREIN PROVIDED AND LIMITED) CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION, (i) THE VALUE, CONDITION, MERCHANTABILITY, HABITABILITY, MARKE TABILITY, PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OF THE PROPERTY, (ii) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO ANY IMPROVEMENTS ON THE PROPERTY HEREIN CONVEYED, AND (III) THE MANNER OF REPAIR, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF ANY SUCH IMPROVEMENTS. Taxes for the year to the date hereof are the obligation of GRANTOR and have been prorated based on last year's taxes. To the extent that the taxes for 2008 are greater to the date hereof, GRANTOR shall pay the under payment to GRANTEE when determined. EXECUTED effective as of the date set forth above. TLS PROPERTIES, LTD, aTom limited partnership By: TLS OPERATING COMPANY, LLC, its general partner Bruce A. Smith, President 6425%.3/SPH/11351/0103/051508 2 Resolution No. 5- 22 -08 -07 ATTACHMENT: EXFIIBIT "A" Property description (4.365 acres) ACKNOWLEDGMENT NO NEXT PAGE 642596.3/SPH/11351/0103/051508 Resolution No. 5- 22 -08 -07 This instrument was acknowledged before me on the day of , 2008 by Bruce A. Smith, President of TLS OPERATING COMPANY, LLC, a Texas limited liability company, as general partner of TLS PROPERTIES, LTD., a Texas limited partnership, on behalf of such limited liability partnership. Notary Public in and for the State of T E X A S Name: My Commission Expires: 642596.3/SPH/11351/0103/051508 4 Resolution No. 5- 22 -08 -07 METES AND BOUNDS DESCRIPTION OF A 4.365 ACRE TRACT CRAWFORD BURNETT SURVEY, A -7 COLLEGE STATION, BRAZOS COUNTY, TEXAS METES AND BOUNDS DESCRIPTION OF ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN THE CRAWFORD BURNETT SURVEY, ABSTRACT NO. 7, COLLEGE STATION, BRAZOS COUNTY, TEXAS. SAID TRACT BEING A PORTION OF THE REMAINDER OF A CALLED 134.041 ACRE TRACT AS DESCRIBED BY A DEED TO TLS PROPERTIES, LTD. RECORDED IN VOLUME 3091, PAGE 243 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS. SAID'TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING AT A 5/8 INCH IRON ROD FOUND ON THE WESTERLY LINE OF JONES - BUTLER ROAD MARKING A NORTHEAST CORNER OF SAID REMAINDER OF 134.041 ACRE TRACT AND THE NORTH CORNER OF A CALLED 10.7466 ACRE TRACT AS DESCRIBED BY A DEED TO THE CITY OF COLLEGE STATION RECORDED IN VOLUME 6950, PAGE 42 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS; THENCE: S 42 32' 57" W ALONG THE COMMON LINE OF SAID REMAINDER OF 134.041 ACRE TRACT AND SAID 10.7466 ACRE TRACT FOR A DISTANCE OF 574.71 FEET TO A 5/8 INCH IRON ROD SET MARKING THE SOUTH CORNER OF THIS HEREIN DESCRIBED TRACT, FOR REFERENCE A 5/8 INCH IRON ROD FOUND MARKING THE WEST CORNER OF SAID 10.7466 ACRE TRACT BEARS: S 42° 32'57" W FOR A DISTANCE OF 409.27 FEET; THENCE: THROUGH SAID REMAINDER OF 134.041 ACRE TRACT FOR THE FOLLOWING CALLS: N 11 ° 48'11 " W FOR A DISTANCE OF 155.74 FEET TO A 5/8 INCH IRON ROD SET ON THE SOUTH LINE OF AN EXISTING OILFIELD.PAD SITE; N 78 11'49" E FOR A DISTANCE OF 17.00 FEET TO A 5/8 INCH IRON ROD FOUND MARKING THE SOUTHEAST CORNER OF SAID PAD SITE; N 11 48' 11" W FOR A DISTANCE OF 502.09 FEET TO A 5/8 INCH IRON ROD FOUND ON THE SOUTH LINE OF FM 2818 (VARIABLE WIDTH R.O.W.) MARKING THE NORTHEAST CORNER OF SAID PAD SITE; THENCE: ALONG THE SOUTH LINE OF FM 2818 FOR THE FOLLOWING CALLS: N 84 44'20" E FOR A DISTANCE OF 89.87 FEET TO A CONCRETE RIGHT -OF -WAY MARKE FOUND; S 88 54' 15" E FOR A DISTANCE OF 231.19 FEET TO A CONCRETE RIGHT -OF -WAY MARKER FOUND; Resolution No. 5- 22 -08 -07 S 47 15'43" E FOR A DISTANCE OF 208.29 FEET TO A CONCRETE RIGHT -OF -WAY MARKE FOUND ON THE WEST LINE OF JONES - BUTLER ROAD; THENCE: S 20° 50'43" E ALONG THE WEST LINE OF JONES - BUTLER ROAD FORA DISTANCE OF 92.54 FEET TO THE POINT OF BEGINNING CONTAINING 4.365 ACRES OF LAND, MORE OF LESS, AS SURVEYED ON THE GROUND DECEMBER 2007. SEE PLAT PREPARED MAY 2008 FOR MORE DESCRIPTIVE INFORMATION. BEARING SYSTEM SHOWN HEREIN IS BASED ON GRID NORTH AS ESTABLISHED FROM GP S OBSERVATION. BRAD KERR REGISTERED PROFESSIONAL LAND SURVEYOR No. 4502 D:/WORK/MAB /07- 895C.MAB Resolution No. 5- 22 -08 -07 EXHIBIT E TO EXHIBIT "C" METES AND BOUNDS DESCRIPTION OF A 4.365 ACRE TRACT CRAWFORD BURNETT SURVEY, A -7 COLLEGE STATION, BRAZOS COUNTY, TEXAS METES AND BOUNDS DESCRIPTION OF ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN THE CRAWFORD BURNETT SURVEY, ABSTRACT NO. 7, COLLEGE STATION, BRAZOS COUNTY, TEXAS. SAID TRACT BEING A PORTION OF THE REMAINDER OF A CALLED 134.041 ACRE TRACT AS DESCRIBED BY A DEED TO TLS PROPERTIES, LTD. RECORDED IN VOLUME 3 09 1, PAGE 243 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS. SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING AT A 5/8 INCH IRON ROD FOUND ON THE WESTERLY LINE OF JONES- BUTLER ROAD MARKING A NORTHEAST CORNER OF SAID REMAINDER OF 134.041 ACRE TRACT AND THE NORTH CORNER OF A CALLED 10.7466 ACRE TRACT AS DESCRIBED BY A DEED TO THE CITY OF COLLEGE STATION RECORDED IN VOLUME 6950, PAGE 42 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS; THENCE: S 42'32'57" W ALONG THE COMMON LINE OF SAID REMAINDER OF 134.041 ACRE TRACT AND SAID 10.7466 ACRE TRACT FOR A DISTANCE OF 574.71 FEET TO A 5/8 INCH IRON ROD SET MARKING THE SOUTH CORNER OF THIS HEREIN DESCRIBED TRACT, FOR REFERENCE A 5/8 INCH IRON ROD FOUND MARKING THE WEST CORNER OF SAID 10.7466 ACRE TRACT BEARS: S 42'32'57" W FOR A DISTANCE OF 409.27 FEET; THENCE: THROUGH SAID REMAINDER OF 134.041 ACRE TRACT FOR THE FOLLOWING CALLS: N 11 ° 48'11 " W FOR A DISTANCE OF 15 5.74 FEET TO A 5/8 INCH IRON ROD SET ON THE SOUTH LINE OF AN EXISTING OILFIELD PAD SITE; N 78 11' 49" E FOR A DISTANCE OF 17.00 FEET TO A 5/8 INCH IRON ROD FOUND MARKING THE SOUTHEAST CORNER OF SAID PAD SITE; N 11 ° 48'11" W FOR A DISTANCE OF 502.09 FEET TO A 5/8 INCH IRON ROD FOUND ON THE SOUTH LINE OF FM 2818 (VARIABLE WIDTH R.O.W.) MARKING THE NORTHEAST CORNER OF SAID PAD SITE; THENCE: ALONG THE SOUTH LINE OF FM 2818 FOR THE FOLLOWING CALLS: N 84 44'20" E FOR A DISTANCE OF 89.87 FEET TO A CONCRETE RIGHT -OF -WAY MARKER FOUND; S 88 54' 15" E FOR A DISTANCE OF 231.19 FEET TO A CONCRETE RIGHT -OF -WAY MARKER FOUND; Resolution No. 5- 22 -08 -07 S 47 15'43" E FOR A DISTANCE OF 208.29 FEET TO A CONCRETE RIGHT -OF -WAY MARKER FOUND ON THE WEST LINE OF JONES - BUTLER ROAD; THENCE: S 20'50'43" E ALONG THE WEST LINE OF JONES- BUTLER ROAD FOR A DISTANCE OF 92.54 FEET TO THE POINT OF BEGINNING CONTAINING 4.365 ACRES OF LAND, MORE OF LESS, AS SURVEYED ON THE GROUND DECEMBER 2007. SEE PLAT PREPARED MAY 2008 FOR MORE DESCRIPTIVE INFORMATION. BEARING SYSTEM SHOWN HEREIN IS BASED ON GRID NORTH AS ESTABLISHED FROM GPS OBSERVATION. BRAD KERR REGISTERED PROFESSIONAL LAND SURVEYOR No. 4502 ••Q o' • BRAD KERR D:/WORK/MAB /07- 895C.MAB ....f..f ff.O.f Of Q.....Qe. 4502 9�y°�:FSS °.•y�� Resolution No. 5- 22 -08 -07 0 0 II W J U co Q 3 0 so U Z K7 W � 0) M N w 0 P x- D O� r !!__ bl. ` / - J /w / U\ f / W a I � w� �y ° a m V i[1 CO rn W �} U N J � � m I ai 7 N I I 502.09 N 11'48'11" w I I QPo li I � ,GRAVEL ROAD �S •h <S ��c S 0 � O 2 = O N¢ Z P N U W F- Li W O U U `r CN L� d Q (0 \ \_orn z0 - c0 O tt 3 U tj $N O O Q gz K O U) 11 0 W 4, 155• •s 2 K ( W �9 N J F _, d a Q af coo d - O 1 ? N J W � I Q 1p Z 7 ¢ ai ° z v� ¢ � = U � I 00 Z F O a 00 I Z 2 N _ w 2 LL.. I 0 P x- D O� r !!__ bl. ` / - J /w / U\ f / W a I � w� �y ° a m V i[1 CO rn W �} U N J � � m I ai 7 N I I 502.09 N 11'48'11" w I I QPo li I � ,GRAVEL ROAD �S •h <S ��c S 0 � O 2 = O N¢ Z P N U W F- Li W O U U `r CN L� d Q (0 \ \_orn z0 - c0 Z 0 (J U� O Z =s �-Z ° o O w N!Y Q m O tt U tj $N '0 W 4, 155• •s �9 F OtiQa Li Q af D� M d - O 1 ? N J W � 1p ¢ ai [D v� ¢ W I F O I Z w 0V) I a�� I \ j W O I ZF- af M I Z 0 (J U� O Z =s �-Z ° o O w N!Y Q m Resolution No. 5- 22 -08 -07 EXHIBIT D POSSESSION AND LICENSE AGREEMENT Resolution No. 5- 22 -08 -07 POSSESSION AND LICENSE AGREEMENT The CITY OF COLLEGE STATION, TEXAS and TLS PROPERTIES, LTD., collectively referred to as the parties, hereby enter into and agree to the following Possession and License Agreement: I. DEFINITIONS 1.1 "City" means the City of College Station, Texas, including all elected official, appointed officials, employees, contractors, and agents thereof. 1.2 "Licensor" means TLS Properties, Ltd., a Texas Limited Partnership, including all corporations, partners, members, managers, employees, and agents thereof. 1.3 "Bid Award" means Bid No. 08 -64 awarded by the City Council of the City of College Station, Texas, on May 22, 2008, per the Bid Award Specifications attached as Exhibit "A ", for the acquisition of the Subject Property. 1.4 "Subject Property" means all that certain tract or parcel of land currently owned by Licensor and made the subject of the Bid Award, containing 5.80 acres of land, more or less, lying and being situated in the C. Burnett League, Abstract No. 7, Brazos County, Texas, more particularly described by metes and bounds on Exhibit "A" attached hereto and made a part hereof for all intents and purposes. 1.5 "Project" means the improvement and expansion of the City's electric utility system through the completion of the Dowling Road Substation and associated electric utilities. 1.6 "Agreement" means this Possession and License Agreement. 1.7 "Consideration" means the financial compensation to be tendered by the City to Licensor in order to gain possession and use of the Subject Property prior to the final acquisition and closing of the sale of the Subject Property. II. TERMS AND PROVISION 2.1 Licensor hereby grants to the City, an irrevocable, nonexclusive license on and subject to the terms and conditions hereof for use of the Subject Property, containing 5.80 acres, more or less, for the following public purposes associated with the Project (the "License ") to go upon the Subject Property and make such inspections of the Subject Property as are reasonably necessary to enable the City to plan for the construction and development of the Project; provided, however, that in no event shall the City construct any improvements on the Subject Property during the term hereof other than dirt work, including cut and fill, in order to bring the Subject Property to final grade for an electrical substation site and, if written approval is obtained in advance from Licensor (which approval shall not be unreasonably withheld, delayed or conditioned so long as the Bid Award contract has not been terminated and the date for closing Page 1 OADepartment Files\Planning & Development\Dowling & Jones Butler construct\Possess K 4 fr TLS.D005/21/20081:49:07 PM 642047.3/SPH/11351/0103/051208 Resolution No. 5- 22 -08 -07 the Bid Award contract has been scheduled), the City may also install concrete pads for the substation transformers. Not withstanding anything contained herein to the contrary, the License shall be for a term of the earlier to occur of (a) sixty (60) days from the date hereof, or (b) the termination of the Real Estate Contract that is the subject of the Bid Award. 2.2 For the Consideration paid by the City, which is set forth below, the receipt and sufficiency of which is hereby acknowledged, Licensor does hereby grant to the City the License for use of the Subject Property for the purposes described herein. This Agreement will extend to the City, its contractors, subcontractors and agents engaged on the Project. 2.3 In full consideration for this irrevocable grant of possession and use, the City will tender to Licensor the amount of $10.00 in cash (the "Consideration "), which sum has been paid by the City to Licensor. 2.4 The parties agree that the Consideration represents adequate and full compensation for the use of the Subject Property by the City per this Agreement. 2.5 The parties agree that the Consideration will be a credit to the City for payment for the Subject Property per the Bid Award in the event that the Subject Property is purchased by the City (the "Closing" or "Closed "). In the event that the Bid Award is not Closed and/or this Agreement terminates at the end of sixty (60) days, Licensor shall retain the Consideration, and the City cease activities on the Subject Property and shall vacate the Subject Property. Any ground work done and any concrete pads on the Subject Property shall become the property of the Licensor; provided, if the City wants to remove the concrete pads within ten (10) days from termination of this Agreement at the City's sole risk and expense, the City may do so. 2.6 Until the termination of this Agreement, the parties agree that Licensor shall have the right to possess and use the Subject Property for all uses that do not unreasonably interfere with the City's efficient, safe, or convenient use of the Subject Property. 2.7 This Agreement will also extend to and bind the heirs, devisees, executors, administrators, legal representatives, successors and assigns of the parties; provided, however, that neither party hereto shall assign this Agreement or any right hereunder without the prior written consent of the non - assigning party. 2.8 All obligations of the parties in this Agreement are expressly contingent upon the timely payment by the City of the Consideration. 2.9 All preliminary recitations of this Agreement are incorporated by reference. 2.10 This Agreement and no copy thereof shall be recorded in the real property records of Brazos County, Texas. If any copy is filed, Licensor may immediately terminate this Agreement by filing a simple notice of termination and all rights hereunder shall cease. This Agreement is executed and is effective as of the date of the signature of the last Page 2 OADepartment Files\Planning & Development\Dowling & Jones Butler construct\Possess K 4 fr TLS.D005/21/20081:49:07 PM Resolution No. 5- 22 -08 -07 party, as shown below. EXECUTED in duplicate originals this day of , 2008. THE CITY OF COLLEGE STATION, TEXAS By: City Manager Date: APPROVED: TLS PROPERTIES, LTD. BY: TLS Operating Company, LLC., its General Partner Chief Financial Officer Date: City Attorney Date: By Bruce A. Smith, President Date: or Page 3 OADepartment Files\Planning & Development\Dowling & Jones Butler construct \Possess K 4 fr TLS.D005/21/20081:49:07 PM