Ordinance No. 13,167ORDINANCE NO. 13,167
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 CONTRACT WITH MOMS AGAINST HUNGER
FOR THE PURCHASE OF APPROXIMATELY A 21.885 -ACRE TRACT OF LAND
ALONG TABBS BAY LOCATED WEST OF EVERGREEN ROAD, AND MORE
PARTICULARLY DESCRIBED AS TRACT 4P -1, ABSTRACT 65, W. SCOTT SURVEY,
HARRIS COUNTY, TEXAS; AUTHORIZING PAYMENT OF A PURCHASE PRICE
FOR SUCH PROPERTY IN AN AMOUNT NOT TO EXCEED THREE HUNDRED
THIRTY -THREE THOUSAND SIX HUNDRED SIXTY AND NO/100 DOLLARS
($333,660.00); 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 Moms against Hunger for
the purchase of approximately a 21.885 -acre tract of land along Tabbs Bay located west of Evergreen Road,
and more particularly described as tract 4P -1, Abstract 65, W. Scott Survey, Harris County, Texas. A copy of
the contract 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 contract authorized in Section 1 hereof in an amount not to exceed THREE
HUNDRED THIRTY -THREE THOUSAND SIX HUNDRED SIXTY AND NO/ 100 DOLLARS
($333,660.00).
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 %) 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
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the
Baytown this the 14'' day of April, 2016.
A T:
LETICIA BRYSCH, Ci erk
and after its passage by the City
of the City Council of the City of
H. DONCARLOS,
APPROVED AS TO FORM: \�1iJ''•••5�
NACIO RAMIREZ, SR., C- A tomey
MCarenTilesiCity Council \Ordinances' pril 14\EamestMoneyContractwithMomsAgains tHunger.doc
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APPROVED AS TO FORM: \�1iJ''•••5�
NACIO RAMIREZ, SR., C- A tomey
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Exhibit "A"
EARNEST MONEY CONTRACT
STATE OF TEXAS §
COUNTY OF HARRIS §
This Earnest Money Contract is made and entered into this _ day of , 2016,
by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers
Counties, Texas, hereinafter known as the "Buyer," and MOMS AGAINST HUNGER, hereinafter
known as the "Seller."
1[.
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 (i) an
inspection report satisfactory to the Buyer, (ii) an environmental site assessment satisfactory to the Buyer,
(iii) the City Council's approval of this Agreement, and (iv) the Buyer's receipt of grant funds from the
Texas Parks and Wildlife Department and Harris County for the acquisition and development of the
Property. If Buyer has not received such grant funds on or before July 29, 2016, the Seller may extend
the Closing Date or terminate this Agreement by sending Buyer written notice of its election to extend or
terminate. If notice of extension or termination is not received by Buyer on or before August 8, 2016, the
Seller will be deemed to have extended the Closing Date for the Buyer to receive the grant funds.
M.
PROPERTY
The property subject to this Agreement is depicted in Exhibit "A," which is attached hereto and
incorporated herein for all intents and purposes, and is more particularly described as follows:
TRS 4P and 4P -1
ABST 65 W SCOTT
HARRIS COUNTY, TEXAS,
hereinafter referred to as the "Property." It is expressly understood and agreed that should the Property
include a pipeline right -of -way owned in fee by a third party, the Property shall be redefined to exclude
such pipeline right -of -way and the Sales Price shall be reduced per square foot accordingly. If Seller has
an easement over such property, Seller shall convey such easement to the Buyer and the Sales Price shall
be reduced by one -half of the Sales Price per square foot for that portion to be conveyed as an easement.
Earnest Money Contract, Page 1
_4�
IV.
SALES PRICE
The sales price of the Property shall be THREE HUNDRED THIRTY -THREE THOUSAND SIX
HUNDRED SIXTY AND NO 1100 DOLLARS ($333,660.00), hereinafter "Sales Price," which sum shall
be paid in full at closing on the Property.
V.
EARNEST MONEY
Buyer shall deposit ONE THOUSAND AND N01100 DOLLARS ($1,000.00) as earnest money
with Chicago Title Company located at 407 W. Baker Road, 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 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, 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; however, it is expressly understood and agreed that the survey shall not
be obtained until after the contingencies in Article II have been satisfied in full. The plat shall (a) identify
the Property by metes and bounds or platted lot description; (b) show that the survey was made and
Earnest Money Contract, Page 2
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 (1) contain the
surveyor's certificate that the survey as shown by the plat is true and correct.
Utility casements created by the dedication decd and plat of the subdivision in which the Property
is located shall not be a basis 1'6r 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.
VII.
CLOSING
The closing of the sale shall be (i) on the 29 °i day of July, 2016, (ii) seven (7) days after
objections to title, inspection report, environmental assessment and /or survey have been cured, (iii) ten
(10) days after Buyer's receipt of grant funds, or (iv) ten days alter Buyer's receipt of the plat survey,
whichever 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 arc due and owing on the Property, and Seller shall tender a General
Warranty Decd 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:
A. Buyer shall be responsible for the expenses associated with the appraisal; environmental
assessments; preparation of decd; escrow fee; and other expenses stipulated to be paid by
Buyer under other provisions of this Agreement.
B. Seiler shall be responsible for the expenses associated with tite following: releases of
existing liens, including prepayment penalties and recording fees. release of Seller's loan
liability; taxes assessed prior to January 1, 2016; tax statements or certificates; and other
expenses stipulated to be paid by Seller under other provisions of this Agreement.
Earnest Money Contract, Page 3
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 (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.
Earnest Money Contract, Page 4 A
)IV.
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.
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
MOMS AGAINST HUNGER
2104 Underwood Road
La Porte, TX 77571 -9470
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.
Eamest Money Contract. Page 5
XVIII.
USE
'file intended use of the Property by Buyer is for municipal purposes. If Buyer ascertains that
applicable zoning ordinances, casements, 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 perlormance of any of the agreements herein or
to exercise any rights or remedies accruing thereunder upon default or failure of perl'orniance 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 perfonnance.
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 perfonnance. The place of making and the place of perfonnance for all purposes shall be
Baytown, i larris County, Texas.
XXI.
SEVERABILITV
All parties agree that should any provision of this Agreement be dctcnrnincd to be invalid or
unenforceable, such detennination shall not affect any other term of this Agreement, which shall continue
in full force and effect.
XXIL
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.
Earnest Money Contract, Page 6 16W,01 �m
XXIII.
COMPLETE AGREEMENT
This Agreement contains all the agreements of the parties relating to the subject matter hereof and
is the titll and final expression of the agreement between the parties.
XXIV.
AUTIIORITY
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 1" day of April, 2016.
IN WITNESS WIIEREOI -, 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 _I day of , 2016, the date of execution by the Seller.
SELLER: MOMS AGAINST HUNGER
AS Irt-3
(Signature)
—P,2 es o2 L fi 01 k-e
(Printed Name)
?rl C S 1
(Title)
STATE Or TEXAS
COUNTY OF I IARRIS
Before me, 4 Kell Y-h' K Z , the undersigned notary public, on this
day personally appeared kAyanoyv L& a ley , the of Moms
Against 1lungcr, known to me t b bi tl c person whole name is subscribed to the foregoing instrument and
Earnest Money Contract, Page 7
acknowledged to me that he/she executed the saute for the purposes and consideration and in the capacity
therein expressed.
SUBSCRIBED AND SWORN before tile this __ day of .2016.
q941X(P
Notary Pu is n d for the State of Texas
RAAUEI P. MARTINET
Notary Public, State of Texas
My Commission Expires
'�o►````' December 16, 2018
anus „`
BUYER: CITY OF BAYTOWN
RICI IARD L. DAVIS, City Manager
ATTEST:
LETICIA BRYSCI I, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
R. (wren riles ConlracL% bAuns against I lunher Eamst Money Contract EamestMoneyContrict?016.doc
Earnest Money Contract, Page 8
Exhibit "A"
Exhibit "n," Page Solo