Ordinance No. 12,968ORDINANCE NO. 12, 968
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 KINGBIRD, L.L.C., KEITH
JAEHNE, AND BRANDON JAEHNE FOR THE PURCHASE OF 2.7453 ACRES,
LOCATED BEHIND THE CITY OF BAYTOWN'S MUNICIPAL SERVICE CENTER;
AUTHORIZING AN AMOUNT NOT TO EXCEED SIXTY THOUSAND AND N01100
DOLLARS ($60,000.00); MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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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 Kingbird, L.L.C., Keith
Jaehne, and Brandon Jaehne for the purchase of 2.7453 acres, located behind the City of Baytown's Municipal
Service Center, for municipal 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 SIXTY
THOUSAND AND NO/ 100 DOLLARS ($60,000.00).
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 NO /10O 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
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative
Baytown this the 10`" day of September, 2015.
/ P i
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APPROVED AS TO FORM:
NACIO RAMIREZ, S ., Attorney
after its passage by the City
of the City Council of the City of
H. DONCARLOS, Mayor
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Exhibit "A"
EARNEST MONEY CONTRACT
STA rE OF TEXAS
COUNTY OF HARRIS
This Earnest Money Contract is made and entered into this — day of , 201;
by and between the CITY OF B \Y -roWN. a municipal corporation located Al Harris and Ci nbers
Counties. Texas. hereinafter known as the "Buyer." and Kinebird. L.L.C.. Keith Jaehne. and Brandon
Jachne hereinafter collectively known as the "Seller."
I.
iN GENERAL
Subject to :Article iI hercot; the Seller murees to sell and convey to Buyer and Buyer agrees to bu_v
from Seller the proper[} described below.
IL
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 Buver, and the City
Council's approval of this Aurreement.
111.
PROPERTY
I he property subject to this :I4_reement is that property more particularly described in Exhibit
"A." w hich is attached hereto and incorporated herein for all intents and purposes, hereinafter referred to
as the "Property."
iV.
SALES PRICE
The sales price of the above- referenced property is SIXTY H IOUSAND AND NO 100
DOLLARS (S60.000.00), hereinafter "Sales Price," which sum shall be paid in full at closing on the
Property.
V.
EARNEST MONEY
Buyer shall deposit ONE THOI'SAND AND NO 100 DOLLARS (w 1,000.00) as earnest money
with Chicago Title Insurance Company located at 407 W. Baker Road, Suite T. Baytown, fX 77521, as
Escrow Agent, upon execution of this Agreement by both parties.
Earnest \lonev Contract. Page 1
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 twenty (20) 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 dated October 7, 2014, 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 Seller. 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) 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 shall
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.
Eamest Money Contract, Page 2
VII.
CLOSING
The closing of the sale shall be on or before the 13'h day of November, 2015, or within seven (7)
days after objections to title, inspection report, environmental assessment and/or survey have been cured,
whichever date is later, 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.
VIII.
POSSESSION
The possession of the Property shall be delivered to Buyer at closing. No other person or entity
other than the Buyer shall have possession of the property at closing. All tenants and/or persons
physically occupying the Property or any portion thereof must be removed by Buyer prior to closing,
except SignAd sign structure. The SignAd lease will be conveyed with the Property at Closing and Buyer
will provide ingress and egress through Buyer's adjacent property to the north to access Market Street.
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.
PROBATIONS
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.
XII.
DEFAULT
If Buyer fails to comply with this Agreement, Buyer shall be in default, and Seller may (a)
enforce specific performance, seek such other relief as may be provided by law, or both, 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 either (a) enforce specific performance, seek such other relief as may
be provided by law, or both, 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 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
Kingbird, L.L.C.
Keith Jaehne
Brandon Jaehne
9525 Katy Freeway, Suite 434
Houston 77024
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.
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
Earnest Money Contract, Page 5
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.
XXII.
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.
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
KX1v.
tUTHOR1 I'1
the persons executing_ this Agreement on behalf of the parties hereby represent that such persons
have full authority to execute this A�,,reenient and to bind the party he she represents.
XX V.
E \PIRA I'1O`
This Contract shall expire if not signed by the Seller on or before the I ' day of September, 2015.
IN WITNESS WHEREOF, the parties hereto bare executed this :kgreement in multiple copies.
each of \%hick shall be deemed to be an original, but all of nhick shall constitute but one and the same
-k�,reemcnt on the ..7_ day of A k 4 1 .2015. the date of execution by the Seller.
SELLER: KINGBIRD, L.L.C.
By
(St._naturc)
(Printed Name)
r`"1iJ,-" /1 hEe-
(Title)
STATE OF TEXAS
COUNTY OF HARRIS I, I
Before me. C C� t:0.J gt „� ,1 w the undersigned notar< public, on this
day personally appeared C y — the /7 .t .v.r of
Kingbird, L.L.C., known to me to be the person whose name is subscribed to the foregoing instrument
and acknowledged to me that he she executed the sane I'or the purposes and consideration therein
expressed.
SUBSCRIBL-D AND SWORN before me this 16day of 2015.
Notary Public i l for the State of Texas
;t 7,� ;
Earnest Money Contract, Page
1CX .
SELLER: KEITH JAEHNE
JAEHNE
STATE OF TEXAS
COUNTY OF HARRIS §
Before me, W„y, the undersigned notary public, on this
day personally appeared Keith Jaehne, known to me tfo be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
SUBSCRIBED AND SWORN before me this _4 day of t'+�l�,t�l� , 2015.
`A,enr n��r
EDWIN E WOOLORiC_ . Notary Public in and for the St a of Texas
My Commission Exp!ras
January 26. 2017
SELLER: BRANDON JAEHNE
BRANDON JAE
STATE OF TEXAS
COUNTY OF HARRIS
Before me,1 - , the undersigned notary public, on this
day personally appeared Brandon Jaehne, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
SUBSCRIBED AND SWORN before me this'jday of , 2015.
r
?&ry P is in and for the State of Texas
L W '
Earnest Money Contract, Page 8
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APPROVED AS TO FORM:
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Earnest Mono Contract. Pane 9
Exhibit "A"
TRACT 1
DESCRIPTION OF A TRACT OF LAND CONTAINING
2.7453 ACRES (119,587 SQUARE FEET) SITUATED
IN THE WILLG\:NI SCOTT UPPER LEAGUE, ABSTRACT 66
HARRIS COUNTY, TEXAS
Being a tract of land containing 2.7453 acres (119.587 square feet), situated in the William Scott
Upper League, Abstract 66. Hands County, Texas, being a portion of a tract of land conveyed unto
Kathryn Bayne, by deed recorded under County Clerk's File No. 20140407037 of the Official Public
Records of Hams County. Texas. Said 2.7433 -acre tract being more particularly described by metes
and bounds as follows:
BEG M.. ING at a found TX Dot Disc at the intersection of the northeast right -of -way line of State
Highway 146 (150.00 feet wide) with the northeast right -of -way line of Missouri Pacific Railroad
(60.00 feet wide) and for the most westerly south corner of the said tract herein described.
THENCE North 27 °32'59" Wcst. along the northeast right -of -way line of said State Highway 146, a
distance of 460.36 feet to a found 1:2 inch iron rod for the northwest comer of the said tract herein
described:
THENCE South 87°04'59" East. passing a set 112 inch iron rcd with cap marked "Survey I" at a
distance of 400.83 feet and continuing for a total distance of 477.49 feet to a point for the northeast
corner of the said tract herein described:
THENCE South 03 °19'01" West, a distance of 199.30 feet to a point for the southeast comer of the
said tract herein described:
THENCE South 52 °49'01" West, passing a set 112 inch iron rod with cap marked "Survey I" at a
distance of 137.63 feet and continuing for a total distance of 309.16 feet to a point in the northeast
right -of -way line of said Missouri Pacific Railroad and for the south comer of the said tract herein
described.
THENCE North 72 °56'59" West, along the northeast right- of -%av line of said Missouri Pacific
Railroad, a distance of 6.33 feet to the POINT OF BEGINNING and containing 2.7453 acres
(119.587 square feet), more or less.
More: This metes and bounds description is referenced to a survey drawing prepared by Survey 1
Inc. (Finn Registration Na. 109753 -00) dated Jan. 24. 2015. job number 10-3143544'
Survey 1. Inc.
P.O. Box 2543
Alvin. TX 77512
281- 393 -1382
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Jan. 23.2015