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Ordinance No. 12,835ORDINANCE NO. 12,835 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 HAZELWOOD ENTERPRISES, INCORPORATED, FOR THE PURCHASE OF APPROXIMATELY 25 ACRES OFF OF EVERGREEN ROAD, OUT OF TRACT 4I, ABSTRACT 65 OF THE WILLIAM SCOTT SURVEY, HARRIS COUNTY, TEXAS; AUTHORIZING PAYMENT OF A PURCHASE PRICE FOR SUCH PROPERTY IN AN AMOUNT NOT TO EXCEED TWO HUNDRED SEVENTY -SIX THOUSAND THREE HUNDRED TWENTY AND N01100 DOLLARS ($276,320.00); 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 1: That 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 Hazelwood Enterprises, Incorporated, for the purchase of approximately 25 acres off of Evergreen Road, out of Tracts 4I, Abstract 65 of the William Scott Survey, Harris County, Texas. 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 TWO HUNDRED SEVENTY -SIX THOUSAND THREE HUNDRED TWENTY AND NO/ 100 DOLLARS ($276,320.00). 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 N0I100 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°.. o) 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 fr9rand after its passage by the City Council of the City of Baytown. I. / INTRODUCED, READ and PASSED by the affirmative v te, of the City Council of the City of Baytown this the 23'd day of April, 2015. STXPHEN H. DONCARLOS, Mayor ATT -ST. -TICIA BRYSCH, Ci Ch APPROVED AS TO FORM: ��7 '��'° +use_•f.^.��^ ^ti5�f7 / NACIO RAMIREZ, SR., Ci ttorney Exhibit "A" EARNEST MONEY CONTRACT STATE OF TEXAS COUNTY OF HARRIS This Earnest Money Contract (this "Agreement ") 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 HAZELWOOD ENTERPRISES, INCORPORATED, a Texas corporation, hereinafter known as the "Seller." I. IN GENERAL Subject to Article II hereof, the Seller agrees to sell and convey to Buyer and Buyer agrees to buy from Seller the property described below. II. CONTINGENCY This Agreement and the Buyer's obligations herein are expressly contingent upon the following: 1. the City Council's approval of this Agreement and the Chapter 380 Agreement with the Seller for the golf course development project, which is attached hereto as Exhibit "E" and incorporated herein for all intents and purposes; 2. an environmental site assessment satisfactory to the Buyer; 3. the City of Baytown's voters approving the issuance of general obligations bonds for the purchase and upgrade of the Evergreen Point Golf Course and related properties at the election to be held on November 3, 2015 (the "Election Date "); 4. the City of Baytown's inability to purchase upon terms acceptable to the City the property on which Evergreen Point Golf Course is located as more particularly described in Exhibit "D," which is attached hereto and incorporated herein for all intents and purposes; and 5. the City of Baytown's acquisition of the properties more particularly described in Exhibits `B" and "C" which are attached hereto and incorporated herein for all intents and purposes. III. PROPERTY The property subject to this Agreement is that property in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes, and hereinafter referred to as the "Property." Earnest Money Contract,' Page 1 IV. SALES PRICE The sales price of the above - referenced property shall be ELEVEN THOUSAND AND NO 1100 DOLLARS ($11,000.00) per acre, hereinafter "Sales Price," which sum shall be paid in full at closing on the Property. V. EARNEST MONEY Buyer shall deposit ONE THOUSAND AND NO / 100 DOLLARS ($1,000.00) as earnest money with Chicago Title Company, 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 Company, located at 407 W. Baker Road, Suite T, Baytown, TX 77521 ( "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 applicable to the Property; (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 twenty (20) days after the Effective Date, 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, which survey is at Buyer's expense, Buyer may object in writing to any matter which constitutes a defect or encumbrance to title shown on a survey plat obtained by Buyer. The survey shall be made by a Registered Professional Land Surveyor Earnest Money Contract,' Page 2 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. 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 may, at its option, cure the objection within twenty (20) days after the date Seller receives them and the Closing Date shall be extended as necessary. 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 18s' day of November, 2015, or within seven (7) days after (i) objections to title, inspection report, environmental assessment and/or survey have been cured; (ii) the satisfaction of the contingencies expressed in Article II; and (iii) the closing and receipt of funds for the general obligation bond debt issuance for the financing of the Evergreen Point Golf Course and related properties, whichever date is later, such date hereinafter referred to as "Closing Date." Unless earlier terminated for failure to meet the contingencies or the above - referenced conditions, the parties agree that the Closing Date shall not extend beyond December 31, 2015. 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, Title Company 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. VIII. 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: Earnest Money Contract,' Page 3 A. Buyer shall be responsible for the expenses associated with the environmental assessments; preparation of deed; escrow fee; and other expenses related to this Agreement, except as provided in Section B of this article. B. Seller shall be solely 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, of the year of the Closing Date; prorations as specified in Article X hereof; tax statements or certificates; any additional taxes as contemplated in Article XI; and any escrow expenses contemplated in Article XV. 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. 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. XII. DEFAULT If Buyer fails to comply with this Agreement, Buyer shall be in default, and Seller may, as its sole and exclusive remedy (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 may, as its sole and exclusive remedy (a) enforce specific performance, or (b) terminate this Agreement, receive the Earnest Money, 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 Earnest Money Contract,' Page 4 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 escrow 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. Additionally, Seller and Buyer represent and warrant to the other that it has not dealt with any party which would give rise to a real estate commission or similar fee. If any representation by the Seller 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 for a period of six months. 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 Acting City Manager of such sale or assignment, nor shall Seller assign any monies due or to become due to it prior to disbursement of funds on the Closing Date. It is expressly understood and agreed that this provision shall only apply to the Property as defined in Article III. 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 HAZELWOOD ENTERPRISES, INCORPORATED Attn: President 4004 Highway 146 Baytown, TX 77520 BUYER City of Baytown Attn: Acting City Manager P.O. Box 424 Baytown, TX 77522 Earnest Money Contract " Page 5 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. XVIII. 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. 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, Harris 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. Earnest Money Contract." Page 6 NMI. 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. XXIII. ACCEPTANCE OF PROPERTY SELLER HEREBY DISCLOSES TO BUYER AND BUYER ACKNOWLEDGES THAT THERE MAY BE ENVIRONMENTAL CONTAMINATION OF THE PROPERTY. BUYER REPRESENTS THAT IT IS A KNOWLEDGEABLE BUYER OF REAL PROPERTY AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF ITS CONSULTANTS IN ENTERING INTO THIS CONTRACT AND PURCHASING THE PROPERTY. PURCHASER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY, INCLUDING THE PHYSICAL AND ENVIRONMENTAL CONDITION THEREOF, AS BUYER DEEMS NECESSARY. BUYER FURTHER AGREES, EXCEPT AS EXPRESSLY SET FORTH BELOW, THAT BUYER IS ACQUIRING THE PROPERTY ON AN "AS IS, WHERE IS AND WITH ALL FAULTS BASIS" WITHOUT REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH RESPECT TO THE QUALITY, PHYSICAL CONDITION OR VALUE OF THE PROPERTY, THE PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES IN, ON OR UNDER THE PROPERTY, THE COMPLIANCE OF THE PROPERTY WITH APPLICABLE LAW, OR THE INCOME TO BE DERIVED FROM, OR EXPENSES ASSOCIATED WITH, THE PROPERTY. NOTWITHSTANDING THE FORGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED BY THE PARTIES THAT NOTHING CONTAINED HEREIN SHALL BE DEEMED TO RELIEVE OR RELEASE SELLER OF ANY LIABILITY IT MAY HAVE TO BUYER OR ANY OTHER PERSON UNDER ANY ENVIRONMENTAL LAW, INCLUDING BUT NOT LIMITED TO THE UNITED STATES FEDERAL WATER POLLUTION CONTROL ACT, THE UNITED STATES RESOURCE CONSERVATION & RECOVERY ACT, THE UNITED STATES CLEAN WATER ACT, THE UNITED STATES SAFE DRINKING WATER ACT, THE UNITED STATES ATOMIC ENERGY ACT, THE UNITED STATES OCCUPATIONAL SAFETY AND HEALTH ACT, THE UNITED STATES TOXIC SUBSTANCES CONTROL ACT, THE UNITED STATES CLEAN AIR ACT, THE UNITED STATES COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, THE UNITED STATES HAZARDOUS MATERIALS TRANSPORTATION ACT, ALL ASSOCIATED AMENDMENTS AND SUBSEQUENT RELATED LEGISLATION THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS PROVISION WAS FREELY NEGOTIATED BETWEEN THE PARTIES AND PLAYED AN IMPORTANT PART IN THE BARGAINING PROCESS FOR THIS AGREEMENT. This Section shall survive Closing and shall not be merged into the Deed. Eamest Money Contract.' Page 7 XXIV. NOTICE REGARDING POSSIBLE LIABILITY FOR ADDITIONAL TAXES If, for the current ad valorem tax year, the taxable value of the Property is determined by a special appraisal method that allows for appraisal of the Property at less than market value, the person to whom the Property is transferred may not be allowed to qualify the Property for that special appraisal in a subsequent tax year and the Property may then be appraised at its full market value. In addition, the transfer of the Property or a subsequent change in the use of the Property may result in the imposition of an additional tax plus interest as a penalty for the transfer or the change in the use of the Property. The taxable value of the Property and the applicable method of appraisal for the current tax year is public information and may be obtained from the tax appraisal district established for the county in which the Property is located. XXV. 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. XXVI. 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. XXVII. EXPIRATION This Contract shall expire if not signed by the Seller on or before the 23'd day of April, 2015. Eamest Money Contract,' Page 8 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. ATTEST: LETICIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney BUYER: CITY OF BAYTOWN, TEXAS RON BOTTOMS, Acting City Manager SELLER: HAZELWOOD ENTERPRISES, INCORPORATED TIM HAZELWOOD, President R:\ Karen \Files \Contracts\Hazelwood Enterprises Earnest Money Contract\ Earnes tMoneyContract04212015.doc Earnest Money Contract,' Page 9 Exhibit "A" 512-36 -'253 EXHIBIT *A' Being a 26.12 ace tract or parcel of land situated In the WILLIAM SCOTT LOWER LEAGUE. Abstract No. 65, Hands County, Twm s, being out of and a pan of that artsln tract of land ) ceded 1541 acres conveyed to Ashbef SmIlh Lend Company by B. W. Armstrong, at al, in deed dated November 29, 1936, recorded M Volume 986 of Pago 379 of 0e Dead Records of Hells County, Texas, said 25.12 am tract or parcel of lead heroin des ribad being more particularly described by metal and bounds as foNotvs, lawn: NOTE: ALL BEARINGS ARE LAMBERT GRID SWINGS AND ALL COORDINATES REFER TO THE STATE PLANE COORDINATE SYSTEM, SOUTH CENTRAL ZONE, AS DEFINED BY ARTICLE 5300A OF THE REVISED CIVIL STATUTES OF THE STATE OF TEXAS, 1927 DATUM. ALL DISTANCES ARE ACTUAL GROUND DISTANCES. COMMENCING at a 1f2" Iron rod hoovered In the Westerly most do" -way One of Tit City Beach Road at Its Intanadbn with the Northwesterly most rlgftof-wey One of Evergreen Road, said Iron rod bake the Eeshdy moat Wmet of a treed of land called 192.9755 W*3 convoyed out of the said 1541 aces Ashbal Smith Land Company tract to HaesNwod Enterprises, Inc. by dead dated Jane 30, 1905, recorded under Herds County CWWs Fib No. R462464 of the Real Property Records of Harris County, Taxes, and has a State Prove Coadhrato Value of Y404,769.84 and Xw3,264,482.24. THENCE South 48 dog. 15 min. 58 sae. Well along the Southeasterly most One of the sold 192.9758 acre Hazelwood Entsrpd$es, Inc, Vast (celled South 48 deg. 04 min. 31 sea West) and along the Northwesterly most dghI cfkway time of Evergreen Road as evident and generally facognIsod, a dletana of 4,459.07 fa+l to a 1W Iron rod recovered for the South* most come ac of the sold 192.9765 we Hazelwood Entapdsa, Inc. Wad and the Southeutarly most cane of the haraln deealbed tract and POINT OF BEGINNING: THENCE Nodh 41 deg. 46 min, 15 tab. Worst With the Southwntey most One of the Bald 192.9765 aces Haalwood Entupdses, ko Vaal Srtd on Esahtrly most Bte of the herein described IrW. a distance of 373.00 feet (called 387.84"to a 618' Iron rod recovered for a point of Intersection In the Wntgrly most One of the nit Hwalwood Enterprises. Inc. Wad and a comer of the herein desadbed bad. THENCE North 26 deg. 22 min. 60 sac, East continuing with the WaUrly most ens of the said Haz#hwod Entap+lsas, Ina bad, a distance of 308.63 feet to a 1)2° Inn rod eel for the Northeasterly most corner of gee herein described Vaal: THENCE North 70 dog. 40 min. 00 an. West, eve and atones$ a portion of the residue of the sold Ashbol Smith Lend Company Wad GOW 15410ma and wllh the Nodhedy most IN of the heroin deSedbed Wad, a dle wm of 1,008.91 Ieal to a IW Iron rod at for the NodhwSstelly meet NMI Of the herein desMbed bad: THENCE South 19 deg. 20 min. 00 sea West continuing over and across a poraon of the said residue of the Ashbel Smith Land Company bast celled 1641 sea and with the Watedy most the of the hwaIn de$crfb a tract, a ddgncs of 1,o06.e6 feat to a 1/!' ton rod set for tie Westerly most caner of the heroin described trays; EXHIBIT X Page 1 of 2 Pages 512 -3E =3254 Pape 2 of 2 Pages DESCRIPTION OF 25.12 ACRE TRACT CONTINUED: THENCE South 70 deg. 40 min. 00 sac. East, continuing over and across a potion of the said residue of the Ashbol Smith Land Company Intel c lied 1541 acme and with the South" most line of the heroin deserb od btct, a did&= of 818.38 feat to a 112' Iron rod set for e point of Intersaftn In the Southerly most line of On herwn descrbed "M THENCE South 62 deg. 36 min. 38 emo. East. continuing, over and across a portion of the sold raaldue of the Ashbel Smith Lend Company VW ce ad 1641 acres and with the Southerly most line of the herein described tract, a dlsta hGe of 202.60 fact to a IM Iron rod sot In the oxlsting Northwesterly mod dght•of -way line of Gvergroen Road for 1M Southeasterly most owner of the herein daseAbed tract; THENCE North 48 deg. 16 min. 58 oec. East along the Nath watedy most right-of way One of Evangnmen Road and with the Southeasterly most Un of the heroin described bact, a distance of 560.00 last to the POINT OF BEGINNING, containing 1,094,013.78 square feat or 36.12 acres of land. 12-2.96 EXHIBIT'A' Page 2 of 2 Pagan DANIEL J. BAGGETT REGISTERED PROFF.SSIONAL LAND SURVEYOR 0e NO. 42432 ♦ *' 1� DANIEL J. B 44 EXHIBIT'A' Page 2 of 2 Pagan Exhibit "B" Exhibit "C" Exhibit "D" Exhibit "E" CHAPTER 380 ECONOMIC DEVELOPMENT AGREEMENT STATE OF TEXAS COUNTY OF HARRIS This Chapter 380 Economic Development Agreement ( "Agreement ") is made and entered into by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, hereinafter known as the "City," and HAZELWOOD ENTERPRISES, INCORPORATED, a Texas corporation, hereinafter known as the "HEI." RECITALS WHEREAS, the City seeks to develop certain property owned by HEI as part of a municipal golf course (the "Project "); and WHEREAS, the Project is expected to cause the promotion of state and local economic development and stimulate business and commercial activity within the corporate limits of Baytown; and WHEREAS, in accordance with Article III, Section 52 -a of the Texas Constitution and Chapter 380 of the Texas Local Gov't Code, the City may establish and provide for the administration of a program for making loans and grants of public money to promote state or local economic development and to stimulate business and commercial activity in the City of Baytown; and WHEREAS, in accordance with Chapter 380, Texas Local Gov't Code, the City hereby establishes such a program to provide incentives to HEI to encourage and promote the development of the Project thereby enhancing and stimulating business and commercial activity in the City of Baytown; and WHEREAS, as part of the Program and as a material inducement to HEI selling the property more particularly described in Article III hereof, the City has agreed to offer a monetary incentive for the sale of the same; and WHEREAS, HEI has agreed, in exchange and as consideration of the incentive provided by the City to satisfy and comply with certain terms and conditions, including the sale of the property and the closing of the same in accordance with the Earnest Money Contract (defined hereinbelow); and WHEREAS, the City and HEI agree that the provisions of this Agreement substantially advance a legitimate interest of the City by expanding the property tax base as well as the sales and use tax base of the City, by promoting economic development; NOW, THEREFORE, in consideration of the mutual benefits and promises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and HEI agree as follows: I. Recitals 1.01 Recitals. The recitals set forth above are declared true and correct and are hereby incorporated into and made a part of this Agreement. 1.02. Public Purpose. The City finds that the benefits provided by HEI and described herein promote economic development in the City of Baytown and stimulate business and commercial activity in Baytown. II. Authority 2.01 Cam. This Agreement and the City's obligations herein are expressly contingent upon the City Council's approval of the terms and conditions of this Agreement. Once approved by the City Council, this Agreement, which is authorized by Chapter 380 of the Texas Local Government Code, constitutes a valid and binding obligation of the City. 2.02 HEI. HEI's execution and performance of this Agreement constitutes a valid and binding obligation of HEI. The City acknowledges that HEI is acting in reliance upon the City's performance of its obligations under this Agreement in making its decision to sell the property described in Article III in order for the City to develop the Project and to promote economic development in Baytown. III. Definitions 3.01 "Effective Date" is the date upon which the City Manager executes this Agreement. 3.02 "HCAD" means the Harris County Appraisal District or its successor. 3.03 "Program" means the economic development program for this Project established by the City pursuant to Texas Local Government Code Chapter 380 to promote local economic development and stimulate business and commercial activity within the City. 3.04 "Project" means the development of a municipal golf course and related amenities. 3.05 "Property" means the land and improvements on the property depicted in Exhibit "A" and being approximately 25.12 acres off of Evergreen Road, known as Tract 4I, Abstract 65 of the William Scott Survey, Harris County, Texas. Chanter 380 Economic Development Aereement. Page 2 IV. HEI Obligations 4.01 Sale of Property. Between the Effective Date and December 31" or seven days after objections to title, inspection report, environmental assessment and/or survey have been cured, HEI shall convey good title to the Property in accordance with the Earnest Money Contract, which is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes (the "Earnest Money Contract "), which property shall be used as part of the Project. 4.02 Failure to Meet Obligations. In the event that HEI fails to fulfill its obligations under the performance obligations contained in the Earnest Money Contract, the City may, at its option, terminate this Agreement in accordance with Section 6.02. V. City Obligations 5.01 Economic Development Grant. The City shall pay to HEI an economic development grant in the form of a one -time payment, which shall be added to the appraised value as last certified by HCAD to reach a sales price of ELEVEN THOUSAND AND NO /100 DOLLARS ($11,000.00) per acre. Specifically, the grant shall be as follows and shall be paid by the City at closing: HCAD Appraised Value per Acre: $ 1,960.19 Economic Development Grant per Acre: 9,039.81 Sales Price per Acre: VI. General Terms 6.01 Term. This Agreement shall become enforceable upon execution by the City Manager of the City and shall be effective on the Effective Date. Unless terminated earlier in accordance with its terms, this Agreement shall terminate once HEI has conveyed good title to the Property to the City. 6.02 Termination. If either the City or HEI should default in the performance of any obligations of this Agreement or the Earnest Money Agreement, such default shall be governed by the terms of the Earnest Money Contract. Chanter 380 Economic Development Agreement, Page 3 6.03 Mutual Assistance. The City and HEI will do the things commercially reasonable, necessary or appropriate to carry out the terms and provisions of this Agreement, and to aid and assist each other in carrying out such terns and provisions. 6.04 Entire Agreement. This Agreement contains the entire agreement between the parties. All prior negotiations, discussions, correspondence, and preliminary understandings between the parties and others relating hereto are superseded by this Agreement. This Agreement may only be amended, altered or revoked by written instrument signed by the City and HEI. 6.05 Binding Effect. ffect. This Agreement shall be binding on and inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns. 6.06 Assignment. Except as provided below, HEI may not assign all or part of its rights and obligations to a third party without prior written approval of the City. 6.07 Release. By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing contained herein shall be construed in any way so as to waive in whole or part the City's sovereign immunity. HEI assumes full responsibility for its obligations under this Agreement performed hereunder and hereby releases, relinquishes, discharges, and holds harmless the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character that is caused by or alleged to be caused by, arising out of, or in connection with HEI's obligations hereunder. This release shall apply with respect to HEI's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 6.08 Notice. Any notice and/or statement required or permitted to be delivered shall be deemed delivered by actual delivery, by facsimile, with receipt of confirmation, or by depositing the same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses: HEI: HAZELWOOD ENTERPRISES, INCORPORATED Attn: President 4004 Highway 146 Baytown, TX 77520 CITY: City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 -0424 Either party may designate a different address at any time upon written notice to the other party. Chanter 380 Economic Development Agreement. Page 4 6.09 Interpretation. Each of the parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute regarding its meaning or application, be interpreted fairly and reasonably and neither more strongly for, nor against any party. 6.10 Applicable Law. This Agreement is made, and shall be construed and interpreted, under the laws of the State of Texas and venue shall lie in the State courts of Harris County, Texas. 6.11 Severability. In the event any provisions of this Agreement are illegal, invalid or unenforceable under present or future laws, and in that event, it is the intention of the parties that the remainder of this Agreement shall not be affected. It is also the intention of the parties that in lieu of each clause and provision that is found to be illegal, invalid or unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 6.12 Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. 6.13 No Third Party Beneficiaries. This Agreement is not intended to confer any rights, privileges or causes of action upon any third party. 6.14 No Joint Venture. It is acknowledged and agreed by the parties that the terms of this Agreement are not intended to and shall not be deemed to create any partnership or joint venture among the parties. 6.15 Public Information. Records and information provided to the City or its representative(s) to verify compliance with this Agreement shall be available for public inspection. 6.16 Exhibit. The following Exhibit "A" is attached and incorporated by reference for all purposes. 6.17 Multiple Originals. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute but one and the same instrument, which may be sufficiently evidenced by one counterpart. 6.18 Authority to Enter Contract. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective entities. Chanter 380 Economic Development Agreement, Page 5 6.19 Non - Waiver. Failure of either party hereto to insist on the strict performance of any of the agreements contained herein or to exercise any rights or remedies accruing hereunder 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. EXECUTED by the authorized representatives of the parties on the dates indicated below. CITY OF BAYTOWN, TEXAS ATTEST: RON BOTTOMS, Acting City Manager (Date) LETICIA BRYSCH City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR. City Attorney HAZELWOOD ENTERPRISES, INCORPORATED TIM HAZELWOOD, President (Date) R:\ Karen \Files \Contracts\Hazelwood Enterprises Earnest Money Cont act\380 Agreement.doc Chanter 380 Economic Development Agreement Page 6