Ordinance No. 6,396921022 -4
ORDINANCE NO. 6396
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY
MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A
PERMIT TO MAINTAIN ALLOWING GARTHBAY LIMITED
PARTNERSHIP, A TEXAS LIMITED PARTNERSHIP ( "DEVELOPER")
TO MAINTAIN AN OUTDOOR GARDEN SHOP ON REAL PROPERTY
BURDENED BY A COVENANT NOT TO ERECT BUILDINGS, WHICH
COVENANT RUNS WITH THE LAND; REPEALING ORDINANCES
INCONSISTENT HEREWITH; CONTAINING A SAVINGS CLAUSE;
AND PROVIDING FOR THE EFFECTIVE DATE HEREOF.
WHEREAS, Garthbay Limited Partnership, a Texas limited
partnership ( "Developer "), has constructed a Kmart store and
certain improvements, including, without limitation, a fenced -in,
partially covered outdoor garden shop (the "Outdoor Garden Shop ")
on that certain real property described in Exhibit "A" attached
hereto and made apart hereof for all purposes (the "Real
Estate "); and
WHEREAS, a portion of the Outdoor Garden Shop extends over
the setback line established by the restriction contained in that
certain instrument filed as Clerkfs File No. D313645, attached
hereto as Exhibit "A", which restricts the erection of any
building within ten (10) feet of the easement granted in the
above described instrument (the "Setback Line "); and
WHEREAS, the Developer has contracted to sell the Kmart
store development to Rolf Piller, an individual (the "Buyer ");
and
WHEREAS, the Buyer has obtained a commitment for financing
for his purchase of the Kmart store development from Life
Insurance Company of Georgia, a Georgia Corporation (the
"Lender "); and
WHEREAS, the Buyer, as a condition to purchasing the Real
Estate and the Lender, as a condition to providing its financing
for such purchase, have required an affirmative assurance from
the City that the City shall not request the removal of the
Outdoor Garden Shop during the lease term due to any claimed
violation of the Setback Line restriction, nor, should the
Outdoor Garden Shop be damaged by any casualty event, forbid the
restoration of the Outdoor Garden shop to a condition
substantially the same as its condition prior to such casualty
event due to the Setback Line restriction; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
• Section 1: That the City Manager of the City of Baytown is
hereby authorized to execute and the City Clerk of the City of
Baytown to attest to a Permit, the form of which is attached
hereto as Exhibit "B" permitting the Developer to maintain the
presently existing Outdoor Garden Shop within the setback line,
0
set out in Exhibit "A" hereto referred to
ordinance and binding the City of Baytown
referred to in Exhibit "B" regarding said
921022 -4a
in the recitals to this
to all other covenants
Outdoor Garden Shop.
Section 2: All ordinances or parts of ordinances
inconsistent with the terms of this ordinance are hereby
repealed, provided however, that such repeal shall be only to the
extent of such inconsistency and in all other respects this
ordinance shall be cumulative of other ordinances regulating and
governing the subject matter covered by this ordinance.
Section 3: If any provision, section, exception,
subsection, paragraph, sentence, clause or phrase of this
ordinance or the application of same to any person or set of
circumstances, shall for any reason be held unconstitutional,
void or invalid, such invalidity shall not affect the validity of
the remaining provisions of this ordinance or their application
to other persons or set of circumstances and to this end all
provisions of this ordinance are declared to be severable.
Section 4: This ordinance shall take effect immediately
from and after its passage by the City Council of the City of
Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the
City Council of the City of Baytown this 22nd day of October,
1992.
ATTEST:
E LEEN P. HALL, City Clerk
CIO RAMIREZ, 540., Eity Attorney
C:1:30:16
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FROM HOPKINS & SUTTER T"
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i EXHIBIT A
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. for and M e mooed radorl of ONS DGUAR acrd ether good acrd valuable ce"Idera• .
Verne paid to Canter, by do Clrt Or lAYt'01tlN., tha receipt erf e►Wch is hmeby
i
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HAVC ramff D. 1105.0 and cOl1vl m and der by thet•e "mu ,
:,WW' scu and comm aft 1M CI IV Or MTWTN* s aalalaipol cerrpnrssrouU4
V sitwtom in Hal"* CmW, bami ;Wis r Baled OWWUC, du eesara 0 far atraat, ,
coed, highway and aunty pewpeesea la. and erooa, Owre under, skm and aaoaa
the following doew9mW trout err /Wool Of lead lueatad 1" the Cltt► d 1yt►"",
barrio CAmilty, Toans, is- 12. .
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fhllrg a psre:ol of land# Out of that *mWo throe (5) aexe
%met destrlOad is Bleed to O. f'. Womm•ne js.. doled June
16, 1945. and I-an dm 11 a vetseaa ter••. Page 156 of Ills Dead. ,
accords of Howls Coma►. Tame: sold parch of lam situstad
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dated 1sa.16. alas. "m two elf,Zommmsswoat al•e Aslrttl
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points
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f eeau.e>teKererws�V�wlt ! .
'r1 MC-r. lenrth 116. 28' 300 West.a dlst a of lss feet 4.
to a PDT-'
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TMCMGC. f4frrh e9. 41' West, a uld+oca of I30 toot to = ~`
T1ila1C9 !North 0' If' 320 Beat. along the fast rightd -n s7 s
;a
lima of Cstth Read, a distafte of 56 foal to " MUT or
110G111NiNG. COMUing 0.065 +ens score or lasr. .
WWI* ttrarttor eeereys rte faterest In any 0110 qae or outer minerals j
- n M under said essaerer Cnnter does bomber setae aq hehslf d hleuelf,
Me -.1, ISO" snd assigns, as eho ewrters et said m1 oral Ineareet ths4 tto floe
Of the NwrfaNre 41 00 esaeaNeet shall be made to easseatlee with the ArUUM,
expterleg tar. produeiug. wastlfg, elft" or hsndUng a%" eratorials.
TO HAYC AHD =O M= the eb~ desorsbW essea.*a . fo6ethw with
A sad sl"Wor the rights and apprtenanees thereto in any else bsloaglfg, tints j
ft Nola clt; of 2031sm . N.s eve os tall 204 +rs+grr 10WOMO•; awl f mtw AmR
hereby bMd himself, his Bmimilmll sled 1986M 10 Warrant and f'ararar Defend ,
the said eaeemont unto the sold City of Min. Its emoeaeers sad assigns '
i
against evoy powson whemseavor lawfully claiming or m claim Me "Me W any
part thnrsofo
car the eatM oassldWoMms havotnsbers set forth, Ids said Oremor
does hereby roeronsnt and e7roa an balmll of himself. his stl000ssers sed '
41"39M. 69 CW1110fles MOM with. the lead entelteesble by dw Bald Grantee ;
that: ;
1. Tho meaertr adlolnlne dw horolnebore described essewont is
horebr rostrtetod so that no bulldlrtga will her"tur be even"
w4thrn ear 091 left of .oM N►ide of the sesenrent heratq devenbed.
2. The Creator. his smeeessors sad asslmes shell. moon ohm
datrelopeont of his obutunt oreporty sad the se"fltlen of a
r•+ WJ— penal► Mr th e diVA" eeMreet eoat eft &b.—
. wI- -W . ,...... _.
h- n-lftoh& a donartlMd osswunt an a straw. pwM with ens
rontrote Section IS tent is width, Incledloo cvft sad owurs.
in seeerdseee with the present *mount staidsres estabilshvii
by the City of sertown for public streets.
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w
s
'r1 MC-r. lenrth 116. 28' 300 West.a dlst a of lss feet 4.
to a PDT-'
GG;
TMCMGC. f4frrh e9. 41' West, a uld+oca of I30 toot to = ~`
T1ila1C9 !North 0' If' 320 Beat. along the fast rightd -n s7 s
;a
lima of Cstth Read, a distafte of 56 foal to " MUT or
110G111NiNG. COMUing 0.065 +ens score or lasr. .
WWI* ttrarttor eeereys rte faterest In any 0110 qae or outer minerals j
- n M under said essaerer Cnnter does bomber setae aq hehslf d hleuelf,
Me -.1, ISO" snd assigns, as eho ewrters et said m1 oral Ineareet ths4 tto floe
Of the NwrfaNre 41 00 esaeaNeet shall be made to easseatlee with the ArUUM,
expterleg tar. produeiug. wastlfg, elft" or hsndUng a%" eratorials.
TO HAYC AHD =O M= the eb~ desorsbW essea.*a . fo6ethw with
A sad sl"Wor the rights and apprtenanees thereto in any else bsloaglfg, tints j
ft Nola clt; of 2031sm . N.s eve os tall 204 +rs+grr 10WOMO•; awl f mtw AmR
hereby bMd himself, his Bmimilmll sled 1986M 10 Warrant and f'ararar Defend ,
the said eaeemont unto the sold City of Min. Its emoeaeers sad assigns '
i
against evoy powson whemseavor lawfully claiming or m claim Me "Me W any
part thnrsofo
car the eatM oassldWoMms havotnsbers set forth, Ids said Oremor
does hereby roeronsnt and e7roa an balmll of himself. his stl000ssers sed '
41"39M. 69 CW1110fles MOM with. the lead entelteesble by dw Bald Grantee ;
that: ;
1. Tho meaertr adlolnlne dw horolnebore described essewont is
horebr rostrtetod so that no bulldlrtga will her"tur be even"
w4thrn ear 091 left of .oM N►ide of the sesenrent heratq devenbed.
2. The Creator. his smeeessors sad asslmes shell. moon ohm
datrelopeont of his obutunt oreporty sad the se"fltlen of a
r•+ WJ— penal► Mr th e diVA" eeMreet eoat eft &b.—
. wI- -W . ,...... _.
h- n-lftoh& a donartlMd osswunt an a straw. pwM with ens
rontrote Section IS tent is width, Incledloo cvft sad owurs.
in seeerdseee with the present *mount staidsres estabilshvii
by the City of sertown for public streets.
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known to As to be the paraan mime name is sulmalbsd to tM to ova no :
' Instr+tmont and aCRaewled�ed m ar that M s�ovested tt�v servo foe tAe perpeeat i
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4- -�F
PERMIT TO MAINTAIN IN REAL ESTATE BURDENED BY A COVENANT
• RUNNING WITH THE LAND
WHEREAS, Garthbay Limited Partnership, a Texas limited
partnership ( "Developer "), has constructed a Kmart store and
certain improvements, including, without limitation, a fenced -in,
partially covered outdoor garden shop (the "Outdoor Garden Shop ")
on that certain real property described in Exhibit A attached
hereto and made apart hereof for all purposes (the "Real
Estate "); and
WHEREAS, a portion of the Outdoor Garden Shop extends over
the setback line established by the restriction contained in that
certain instrument filed as Clerk's File No. D313645, which
restricts the erection of any building within ten (10) feet of
the easement granted in the above described instrument (the
"Setback Line "); and
WHEREAS, the Developer has contracted to sell the Kmart
store development to Rolf Pillar, an individual (the "Buyer $$);
and
WHEREAS, the Buyer has obtained a commitment for financing
for his purchase of the Kmart store development from Life
Insurance Company of Georgia, a Georgia Corporation (the
"Lender"); and
WHEREAS, the Buyer, as a condition to purchasing the Real
Estate and the Lender, as a condition to providing its financing
for such purchase, have required an affirmative assurance from
the City that the City shall not request the removal of the
Outdoor Garden Shop during the lease term due to any claimed
violation of the Setback Line restriction, nor, should the
Outdoor Garden Shop be damaged by any casualty event, forbid the
restoration of the Outdoor Garden shop to a condition
substantially the same as its condition prior to such casualty
event due to the Setback Line restriction; and
NOW THEREFORE, with the knowledge that the Buyer is basing
its decision to purchase the Real Estate and the further
knowledge that the Lender is basing its decision to provide
financing for the purchase of the Real Estate on the
representations, warranties, covenants and rights set forth
below, the City agrees as follows:
1) Permit to Maintain said Garden Shop within said Setback
Line (the "Permit ") is hereby issued to the Developer (the
"Permittee"), whose address is c/o Trammell Crow Company, 1800
West Loop South, Suite 600, Houston, Texas 77027, for the
maintenance of the Outdoor Garden Shop on the Real Estate.
2) During the lease term, the City shall not request the
partial or total removal or modification of the Outdoor Garden
Shop due to any claimed or actual violation of the Setback Line
restriction.
EXHIBIT B
•
3) During the lease term, if the Outdoor Garden Shop
should be damaged or destroyed by any casualty event, the
responsible party may restore the Outdoor Garden Shop to a
condition substantially the same as its condition prior to such
casualty event.
4) During the lease term, if the Permittee or Kmart should
desire to remodel the Outdoor Garden Shop, any such remodeled
outdoor Garden Shop shall be entitled to the same protections of
this Permit as the Outdoor Garden Shop existing on the date
hereof, provided such remodeled Outdoor Garden Shop does not
substantially differ in its structure from the existing Outdoor
Garden Shop.
5) This Permit is irrevocable.
6) This Permit may be assigned by the Permittee to the
Buyer, and may be further assigned as many times as necessary to
permit the continued maintenance of the Outdoor Garden Shop
during the lease term. Upon each and every such written
assignment, the assignee shall be deemed to be an shall become
the Permittee hereunder, with no further action being required to
make such assignment effective.
7) The following parties are intended to be beneficiaries
of the rights granted by the Permit: (1) the Permittee, (2) any
mortgage of a Permittee, including, without limitation, the
Lender; (3) Kmart.
8) It is expressly understood that the Permittee assumes
all risks incident to the construction and maintenance of the
Outdoor Garden Shop and the City shall never by liable for any
damage occasioned to such structure or appurtenance thereto by
reason of the granting of permission to maintain such structure.
IN WITNESS THEREOF, this Permit has been executed in the
City of Baytown and its official seal affixed hereto this the
day of October, 1992.
CITY CLERK
ATTORNEY
CITY MANAGER
PERMITTEE
C:1:30:30