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Ordinance No. 12,807ORDINANCE NO. 12,807 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN EARNEST MONEY AGREEMENT WITH BAYTOWN RETAIL, LLC, FOR THE PURCHASE OF 1800 N. ALEXANDER DRIVE, BAYTOWN, HARRIS COUNTY, TEXAS, CONTINGENT UPON THE APPROVAL OF FUNDING FROM THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT; AUTHORIZING PAYMENT OF A PURCHASE PRICE FOR SUCH PROPERTY IN AN AMOUNT NOT TO EXCEED EIGHT HUNDRED TWO THOUSAND ONE HUNDRED NINETY -TWO AND NO 1100 DOLLARS ($802,192.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ********************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: That contingent upon the approval of funding from the Baytown Municipal Development District, the City Council of the City of Baytown, Texas, hereby authorizes the City Manager to execute and the City Clerk to attest to an Earnest Money Contract with Baytown Retail, LLC, for the purchase of 1800 N. Alexander Drive, Baytown, Harris County, Texas, for economic development purposes. A copy of the agreement is attached hereto as Exhibit "A" and is incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment of a purchase price for the property subject to the agreement authorized in Section 1 hereof in an amount not to exceed EIGHT HUNDRED TWO THOUSAND ONE HUNDRED NINETY -TWO AND NO 1100 DOLLARS ($802,192.00). Section 3: That the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of FIFTY THOUSAND AND N01100 DOLLARS ($50,000.00) or less, provided that the amount stated in Section 2 hereof may not be increased by more than twenty -five percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the owners to such decrease unless otherwise provided for in the contract authorized in Section 1 hereinabove. Section 4: This ordinance shall take effect immediately from pW after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote f the City Council of the City of Baytown this the 26`h day of February, 2015. STEP N H-B CARLOS, Mayor AT ST: LETICIA BRYSCH, dity Cle APPROVED AS TO FORM: - NACIO RAMIREZ, SR., Cottomey RAKarenTiles City Council `.Ordinances\2015\February 26 Exhibit "A" EARNEST MONEY CONTRACT STATE OF TEXAS COUNTY OF HARRIS This Earnest Money Contract is made and entered into this _ day of , 2015, by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, hereinafter known as the "Buyer," and BAYTOWN RETAIL, LLC, a Texas limited liability company, hereinafter known as the "Seller." 1. IN GENERAL Subject to Article Il hereof, the Seller agrees to sell and convey to Buyer and Buyer agrees to buy from Seller the property described below. 1l. CONTINGENCY This Agreement and the Buyer's obligations herein are expressly contingent upon an inspection report satisfactory to the Buyer, an environmental site assessment satisfactory to the Buyer, and the City Council's approval of this Agreement on or before April 21, 2015. III. PROPERTY The property subject to this Agreement is that property located at 1800 N. Alexander Drive, Baytown, Harris County, Texas, and being more particularly described in Exhibit "A" which is attached hereto and incorporated herein for all intents and purposes and hereinafter referred to as the "Property." IV. SALES PRICE The sales price of the above- referenced property is SEVEN HUNDRED NINETY -SEVEN THOUSAND SIX HUNDRED SIXTY -TWO AND NO /100 DOLLARS ($797,662.00), hereinafter "Sales Price," which sum shall be paid in full at closing on the Property. Earnest Money Contract, Page 1 V. EARNEST MONEY Buyer shall deposit ONE THOUSAND AND NO /100 DOLLARS ($1,000.00) as earnest money with Chicago Title Insurance Company located at 407 W. Baker Road, Suite T, Baytown, TX 77521, as Escrow Agent, upon execution of this Agreement by both parties. VI. TITLE POLICY AND SURVEY Seller shall obtain at Buyer's sole cost and expense an Owner Policy of Title Insurance (the "Title Policy ") issued by Chicago Title Insurance Company ( "Title Company ") in the amount of the Sales Price, dated at or after closing, insuring Buyer against loss under the provisions of the Title Policy subject to the promulgated exclusions (including existing building and zoning ordinances) and the following exceptions: (1) restrictive covenants common to the platted subdivision in which the Property is located; (2) the standard printed exception for standby fees, taxes and assessments; (3) utility easements created by the dedication deed or plat of the subdivision in which the Property is located; (4) reservations or exceptions otherwise permitted by this Agreement or as may be approved by Buyer in writing; (5) the standard printed exception as to discrepancies, conflicts, shortages in area or boundary lines, encroachments or protrusions or overlapping improvements; (6) the standard printed exception as to marital rights; and (7) the standard printed exception as to waters, tidelands, beaches, streams, and related matters. Within ten (10) days after the Title Company receives a copy of this Agreement, Seller shall furnish to Buyer a commitment for Title Insurance (the "Commitment ") and, at Buyer's expense, legible copies of restrictive covenants and documents evidencing exceptions in the Commitment other than the standard printed exceptions. Seller authorizes the Title Company to mail or hand - deliver the Commitment and related documents to Buyer at Buyer's address shown below. If the Commitment is not delivered to Buyer within the specified time, the time for delivery shall be automatically extended up to fifteen (15) days. Buyer shall have ten (10) days after the receipt of the Commitment to object in writing to matters disclosed in the Commitment. Buyer may object to existing building and zoning ordinances and items (1) through (7) listed above if Buyer determines that any such ordinance or item prohibits the proposed use of the Property as hereinafter described. Within ten (10) days after Buyer's receipt of a survey plat, Buyer may object in writing to any matter which constitutes a defect or encumbrance to title shown on a survey plat obtained by Buyer at the expense of Buyer. The survey shall be made by a Registered Professional Land Surveyor acceptable to the Title Company and the Buyer. The plat shall (a) identify the Property by metes and bounds or platted lot description; (b) show that the survey was made and staked on the ground with the corners permanently marked; (c) set forth the dimensions and total area of the Property; (d) show the location of all improvements, highways, streets, roads, railroads, rivers, creeks or other waterways, fences, easements and rights -of -way on the Property with all easements and rights -of -way referenced to their recording information; (e) show any discrepancies or conflicts in boundaries, any visible encroachments, and any portion of the Property lying within the one hundred (100) year flood plain as shown on the current Federal Emergency Management Agency map; and (f) contain the surveyor's certificate that the survey as shown by the plat is true and correct. Earnest Money Contract, Page 2 Utility easements created by the dedication deed and plat of the subdivision in which the Property is located shall not be a basis for objection. Buyer's failure to object under this article within the time allowed shall constitute a waiver of Buyer's right to object except that the requirements in Schedule C of the Commitment shall not be deemed to have been waived. If objections are made by Buyer, Seller shall cure the objection within the earlier of (i) twenty (20) days after the date Seller receives them or (ii) the Closing Date. If objections are not cured by the extended Closing Date, this Agreement shall terminate and the Earnest Money shall be refunded to Buyer, unless Buyer elects to waive the objections. VII. CLOSING The closing of the sale shall be on or before the 28`h day of April, 2015, such date hereinafter referred to as "Closing Date." If either party fails to close this sale by the Closing Date herein specified, the non -defaulting party shall be entitled to exercise any remedies contained in Article XII hereof. At closing, Seller shall furnish tax statements or certificates showing no delinquent taxes are due and owing on the Property, and Seller shall tender a Special Warranty Deed conveying good and indefeasible title showing no additional exceptions, other than those not objected to by Buyer or waived by Buyer pursuant to Article VI hereof. Vlll. POSSESSION The possession of the Property shall be delivered to Buyer at closing. IX. SALES EXPENSES The following expenses shall be paid at or prior to closing: A. Buyer shall be responsible for the expenses associated with the appraisal; environmental assessments; preparation of deed; escrow fee; and other expenses stipulated to be paid by Buyer under other provisions of this Agreement. B. Seller shall be responsible for the expenses associated with the following: releases of existing liens, including prepayment penalties and recording fees; release of Seller's loan liability; taxes assessed prior to January 1, 2015; tax statements or certificates; and other expenses stipulated to be paid by Seller under other provisions of this Agreement. X. PRORATIONS Current taxes, any rents, maintenance fees, and assessments shall be prorated through the Closing Date. If the amount of the ad valorem taxes for the year in which the sale is closed is not available on the Closing Date, proration of the taxes shall be made on the basis of the taxes assessed in the previous year. Earnest Money Contract, Page 3 XI. CHARGES DUE TO SELLER'S CHANGE IN USE If Seller's change in use of the Property prior to the closing or denial of a special use valuation on the Property claimed by Seller results in the assessment of additional taxes for periods prior to closing, the additional taxes shall be the obligation of the Seller. Obligations imposed by this article shall survive closing. X11. DEFAULT If Buyer fails to comply with this Agreement, Buyer shall be in default, and Seller, as its sole remedies, may (a) enforce specific performance or (b) terminate this Agreement and receive the Earnest Money as liquidated damages, thereby releasing both parties from this Agreement. If Seller is unable without fault to deliver the Commitment within the time allowed, Buyer may either terminate this Agreement and receive the Earnest Money as the sole remedy or extend the time for performance up to fifteen (15) days and the Closing Date shall be extended as necessary at the discretion of the Buyer. If Seller fails to comply with this Agreement for any other reason, Seller shall be in default and Buyer, as its sole remeidies, may either (a) enforce specific performance or (b) terminate this Agreement, receive the Earnest Money, and seek such other relief as may be provided by law, thereby releasing both parties to this Agreement. XIII. ESCROW The Earnest Money is deposited with Escrow Agent with the understanding that Escrow Agent is not (a) a party to this Agreement and does not have any liability for the performance or non - performance of any party to this Agreement, (b) liable for interest on the Earnest Money, or (c) liable for any loss of Earnest Money caused by the failure of a financial institution in which the Earnest Money has been deposited unless the financial institution is acting as Escrow Agent. If either party makes demand for the payment of the Earnest Money, Escrow Agent has the right to require from all parties a written release of liability of Escrow Agent for disbursement of the Earnest Money. Any refund or disbursement of Earnest Money under this Agreement shall be reduced by the amount of unpaid expenses incurred on behalf of the party receiving the Earnest Money, and Escrow Agent shall pay the same to the creditors thereto. At closing the Earnest Money shall be refunded to Buyer. Demands and notices required by this paragraph shall be in writing and delivered by hand delivery or by certified mail, return receipt requested. XIV. REPRESENTATIONS Seller represents that as of the Closing Date there will be no liens, assessments, or Uniform Commercial Code or other security interests against any of the Property which will not be satisfied out of the Sales Price, other than ad valorem taxes. If any representation in this Agreement is untrue on the Closing Date, this Agreement may be terminated by Buyer and the Earnest Money shall be refunded to Buyer. All representations contained in this Agreement shall survive the closing. Earnest Money Contract, Page 4 XV. SALE OF INTEREST The Seller may not sell or assign all or part interest in the Property to another party or parties without the express prior written approval of the City Manager of such sale or assignment, nor shall Seller assign any monies due or to become due to it hereunder without the previous consent of the City Manager. It is expressly understood and agreed that this provision shall only apply to the Property as defined in Article 111. XVI. NOTICES All notices required to be given hereunder shall be given in writing in person or by overnight, certified or registered mail, return receipt requested at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: SELLER BAYTOWN RETAIL, LLC Attn: Eshagh Malekan, Member I 1 I E. Jerico Turnpike, Suite 200 Mineola, NY 11501 -3145 BUYER City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 XVII. FEDERAL TAX REQUIREMENTS If Seller is a "foreign person" as defined by applicable law or if Seller fails to deliver an affidavit that Seller is not a "foreign person," then Buyer shall withhold from the sales proceeds an amount sufficient to comply with the applicable tax law and deliver the same to the Internal Revenue Service together with appropriate tax forms. IRS regulations require the filing of written reports if cash in excess of specified amounts is received in the transaction. XV1II. USE The intended use of the Property by Buyer is for municipal purposes. If Buyer ascertains that applicable zoning ordinances, easements, restrictions or governmental laws, rules or regulations prevent such intended uses, and Buyer notifies Seller within thirty (30) days after the effective date of this Agreement (but in all events at least seven (7) days prior to closing) of Buyer's inability to use the property as herein proposed, the Agreement shall terminate and the Earnest Money shall be refunded to Buyer. Buyer's failure to give the notice within the required time shall constitute Buyer's acceptance of the Property. Earnest Money Contract. Page 5 XIX. NON- WAIVER Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. XX. GOVERNING LAW This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City of Baytown, regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Hams County, Texas. XXI. SEVERABILITY All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. XX1I. NO RIGHT TO ARBITRATION Notwithstanding anything to the contrary contained in this Agreement, the Buyer and the Seller hereby agree that no claim or dispute between the Buyer and the Seller arising out of or relating to this Agreement shall be decided by any arbitration proceeding, including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable state arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the Buyer is subjected to an arbitration proceeding notwithstanding this provision, the Seller consents to be joined in the arbitration proceeding if the Seller's presence is required or requested by the Buyer for complete relief to be recorded in the arbitration proceeding. XXI I I. COMPLETE AGREEMENT This Agreement contains all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. Earnest Money Contract, Page 6 XXI V. AUTHORITY The persons executing this Agreement on behalf of the parties hereby represent that such persons have full authority to execute this Agreement and to bind the party he /she represents. XXV. EXPIRATION This Contract shall expire if not signed by the Seller on or before the 26th day of February, 2015. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same Agreement on the day of , 2015, the date of execution by the Seller. SELLER: BAYTOWN RETAIL, LLC ESHAM MALEKAN, Member BUYER: ROBERT D. LEIPER, City Manager City of Baytown ATTEST: LETICIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney RAKarenTiles\Contracts\Kroger Earnest Money Contract \EamestMoneyContract2232015 doc Earnest Money Contract, Page 7 Exhibit "A" Legal Description A 9.1559 acre tract, more or less, said tract being a 10.0739 acre tract, described below, SAVE AND EXCEPT 0.9180 acres contained in ADVANCE AUTO PARTS NORTH ALEXANDER, a subdivision in Harris County, Texas, according to the map or plat thereof, recorded at Film Code No. 616253 of the Map Records of Harris County, Texas, said property being described as follows, to -wit: Being a tract or parcel of land situated in the Whitney Britton Survey, Abstract No. 118, in Harris County, Texas, and being all of that certain parcel called 10.0739 acres described in a deed of record in Harris County Clerk's File No. M467358, said tract being more particularly described by metes and bounds as follows (with all bearings referenced to southeast line of State Highway No. 146 as described in M467358): BEGINNING at a P -K nail set in a concrete paving joint, for the most westerly northern corner of the herein described tract, being in the southeast line of State Highway No. 146 (120 feet wide - called Alexander Street), being also the west comer of that certain tract conveyed to Edward Cammack, described in Harris County Clerks File No. R971491; THENCE South 53 012'00" East along the southwest line of said Cammack tract, a distance of 222.33 feet (called 222.30' in M467358) to a 60d nail set in a concrete joint for the southerly corner of said Cammack tract and an interior corner of the herein described tract; THENCE North 36 048'00" East, along the southeast line of said Cammack tract, a distance of 120.00 feet to a 5/8 -inch iron rod found for the most easterly northern corner of the herein described tract, being the easterly corner of said Cammack tract, and being in the southwesterly line of that certain 50 -wide tract conveyed to Calvin Evans, recorded in Harris County Clerk's File No. R044924; THENCE South 53 012'00" East along the southwest line of said Evans tract, a distance of 377.67 feet to a %z -inch iron rod set for a point of curvature in the Evans tract (called an angle point in M467358); THENCE in a southerly direction, a distance of 116.25 feet along the westerly line of said Evans tract, following the arc of a curve to the right, having a radius of 308.85 feet and a central angle of 21 °34'00" (Chord = S42 125'00 "E, 115.57) to a % -inch iron rod set for the easterly corner, same being a southerly corner of said Evans tract, in the northerly line of that certain tract conveyed to Eastside Baptist Church of Baytown in Volume 4438, Page 127, of the Deed Records of Harris County, Texas; THENCE South 580*22'00" West along the north line of said Church tract, a distance of 314.81 feet (called 312.89') to a punch mark made in concrete for an interior corner, being a northwest corner of said Church tract, and being in the original east line of that certain tract conveyed to C. White, recorded in Volume 2068, Page 220, of the Deed Records of Harris County, Texas; THENCE in a southerly direction, a distance of 122.71 feet (called 124.75') along the original southeast line of said White tract and the northwesterly line of said Church tract, following the arc of a curve to the right, having a radius of 321.98 feet and a central angle of 21 050'11" (Chord = S21 °14'57 "E, 121.97) to a punch mark made in concrete for a point of tangency; THENCE South 10 019'51" East (called S10 004'00 "E) along the line common to said White tract and said Church tract, a distance of 171.11 feet to a P -K nail set in concrete for a point of curvature, being also a northerly corner of that certain tract conveyed to Roy J. Walker in Volume 3086, Page 540, of the Deed Records of Harris County; THENCE in a southwesterly direction, a distance of 96.85 feet along the line common to said White tract and said Walker tract, following the arc of a curve to the right, having a radius of 48.67 feet and a central angle of 114 001'00" (Chord = S46 040'39 "W, 81.64') to a P -K nail set in concrete for a point of tangency; THENCE North 76 018'51" West (called N76 003'00 "W) along the southwest line of said White tract, common to said Walker tract, a second Walker tract described in Harris County Clerk's File No. F213177, and a portion of a tract conveyed to D. T. Savell in Harris County Clerk's File No. E186125, a distance of 240.62 feet (called 238.82') to a P -K nail set in asphalt for a point of curvature; THENCE in a westerly direction, a distance of 27.53 feet along the be common to said White tract and said Savell tract, following the arc of a curve to the right, having a radius of 58.70 and a central angle of 26 052'00" (Chord = N62 052'51 "W, 27.27') to a 3/4 -inch iron pipe found for a point of tangency, being also the northerly corner of said Savell tract and the easterly corner of that certain tract conveyed to Baytown Equity Investors, Ltd. in a deed of record in Harris County Clerk's File No. D423707; THENCE North 49 °26'51" 1" West (called N4901 1'00"W) along the line common to said White tract and said Baytown Equity Investors, Ltd. tract, a distance of 177.40 feet (called 176.15) to a 5/8 -inch iron rod found for an angle point; THENCE North 52 042'09" West (called N53 012'00 "W) along the line common to said White tract and said Baytown Equity Investors, Ltd. tract, a distance of 384.55 feet (called 380.92') to a 1/2 -inch iron rod set for the westerly comer, in the southeast right -of -way line of said State Highway No. 146; THENCE in a northeasterly direction, a distance of 183.35 feet along the northwest line of said White tract and the southeast fine of said State Highway No. 146, following the arc of a curve to the right, having a radius of 5670.00 feet and a central angle of 01 051'10" (Chord = N35 152'25 "E, 183.34') to a 1/2 -inch iron rod set for a point of tangency; THENCE North 36 048'00" East along the southeast line of said State Highway No. 146 and the northwest line of said White tract and the call 10.0739 acre tract, a distance of 356.56 feet to the POINT OF BEGINNNG; SAVE AND EXCEPT all of ADVANCE AUTO PARTS NORTH ALEXANDER, a subdivision in Harris County, Texas, according to the map or plat thereof, recorded at Film Code No. 616253 of the Map Records of Harris County, Texas.