Ordinance No. 6,984944414 -16
ORDINANCE NO. 6984
• AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO
EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT WITH
KATHRYN BAYNE, LOLA BLAKE, ROBERT H. EDMUNDSON,
INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF
DOROTHY R. EDMUNDSON, DECEASED, DOROTHY JEAN EDMUNDSON,
AND H. BUSCH ENTERPRISES, INC. FOR THE PURCHASE OF REAL
PROPERTY WITH AN AGREEMENT FOR THE SALE OF SOIL ON SUCH
PROPERTY WITH TRAYLOR BROS., INC. FOR THE SALE OF SOIL;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN, THE SUM OF
ONE HUNDRED DOLLARS ($100.00); AND PROVIDING THE
EFFECTIVE DATE THEREOF.
WHEREAS, Kathryn Bayne, Lola Blake, Robert H. Edmundson,
Individually and as Independent Executor of the Estate of Dorothy
R. Edmundson, Dorothy Jean Edmundson, and H. Busch Enterprises,
Inc., a Texas Corporation (hereinafter "Sellers ") own and /or are
lienholders of approximately one hundred six (106) acres of real
property located within the City of Baytown, Harris County, Texas;
WHEREAS, Sellers desire to sell to the City of Baytown a tract
of land consisting of approximately 8.339 acres, provided that the
City form an agreement with Traylor Bros., Inc. (hereinafter "TBI")
for the purpose of selling approximately 143,684 cubic yards of
soil from such tract;
WHEREAS, the City of Baytown desires to purchase approximately
8.339 acres of such tract from the Sellers in order to place a pond
on such property around which a bike and hike trail may be located
for the use and enjoyment of its citizens;
WHEREAS, TBI desires to purchase 143,684 cubic yards, more or
less, of soil from the tract of land that the City desires to
purchase from the Sellers; and
WHEREAS, TBI agrees to restore the property after obtaining
the soil contemplated herein and transform such property into a
pond of the size and shape desired by the City; NOW THEREFORE,
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 and directs the Mayor and City Clerk of
the City of Baytown to execute and attest to an Agreement with
Kathryn Bayne, Lola Blake, Robert H. Edmundson, Individually and as
Independent Executor of the Estate of Dorothy R. Edmundson, Dorothy
Jean Edmundson, and H. Busch Enterprises, Inc., a Texas
Corporation, for the purchase of real property. A copy of said
Agreement along with a detailed description of the property is
• attached hereto, and marked Exhibit "A" and made a part hereof for
all intents and purposes.
Section 2: That the City Council of the City of Baytown
authorizes payment to Kathryn Bayne, Lola Blake, Robert H.
940414 -16a
• Edmundson, Individually and as Independent Executor of
of Dorothy R. Edmundson, Dorothy Jean Edmundson, an
Enterprises, Inc. of the sum of ONE HUNDRED DOLLARS
pursuant to the Agreement.
the Estate
d H. Busch
($100.00),
Section 3: That the City Council of the City of Baytown,
Texas, hereby authorizes and directs the Mayor and City Clerk of
the City of Baytown to execute and attest to an Agreement with
Traylor Bros., Inc. for the sale of approximately 143,684 cubic
yards of soil. A copy of said Agreement is attached hereto, and
marked Exhibit "B" and made a part hereof for all intents and
purposes.
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 14th day of April, 1994.
44 a
PETE C. ALFARO, MAYOR
ATTEST:
EILEEN P. WALL, , City Clerk
IG ACIO RAMIREZ, SkV City Attorney
• b: dirt
SENT BY :DOW, COGBURN FRIEDMAN ; 4 -13 -94 12 :09PM ;00W, COGBUR" _.. "_ _''713940609913 420 65864 2
AGREEMENT
• This agreement ("Agreement") is by and among (1) KATHRYN BAYNE. (ii) LOI
BLAKE, (fii) ROBERT H. EDMUNDSON, Individually and as Independent Executor
the ESTATB OF DOROTHY R. EDMUNDSON, (iv) DOROTHY JEAN EDMUNDSO
and (v) H. BUSCH ENT INC., a Texas corporation, (collectively referred
herein as "8eller") and (vi) the CITY OF BAYTOWN ("Purchaser').
RECITALS
WHEREAS, Seller owas acres of land m
particularly wdescrlbed on H:hibit "A" attached hereto ea m a part hereof (1
P�yl% Perty larger Parse of land owned by Seiler (cinch Imm
parcel consists of apps Wmately 106 acres and is rid to is this Agreement m i
"Seller Parcel "r
WHEREAS, ,Seller Intended to enter into a contract with Traylor Bros., I
( "Traylor ") for purposes of selling approximately 145,684 cubic yards of dirt to Tray14
WHEREAS, as a condition to selling the Property to Purchaser, Seller requi:
Purchaser to enter into a contract with Traylor for purposes of selling approximate
149,684 cubic yards of dirt to Traylor;
WHEREAS, Purchaser has evaluated all relevant information, includi
information regarding the sale of dirt to Traylor, and believes it is in the but ifltere
of Purchaser to purchase the Property from Seller;
WHEREAS, Purchaser will enter into a contract with Traylor (the "Tray;
Contract's, of even date herewith, for purposes of selling dirt located on the Property
Traylor;
WHEREAS, Purchaser, Seller, Hands County, and (loose Creek Independk
School District (the "School District") have had discussions regarding a Pr'opa
agreement ("Land/Tax Agreement") whereby Seller would convey a portion of the Set'
Parcel, is fee or undivided interests, to the School District, Harris County, and Purchm
(the School District, Harris County, and Purchaser are collectively referred in t]
Agreement as the "Taxing Authorities") in exchange for to owed by Seller to t
Taxing Authorities as of the date of the Land/Tax Agreement.
WHRREAS, in connection with the sale of the Property from Seller to Purchase
the parties desire to clarify certain aspects of such sale as mole particularly set for
WHEREAS, Purchaser has complied with all appropriate requirements of ate
law and City charter requirements; and
NOW, THEREFORE, for and in consideration of the promises, and other good
valuable consideration, the receipt and sufficiency of which are hereby aclwowled
Seller acrd Purchaser hereby agree as follows:
1
EXHIBIT A
SENT BY: DOW, COGBURN FRIEDMAN 4 -13 -94 ;12 .'10PM ; DOW, COGBUR" """ "'713940509913 420 65864 3
L The recitals set forth above are true, correct, and Incorporated herein for
• purposes.
2. All money received by Purchaser under the Traylor Contract $om Trayl
Its successors or assigns, shall be paid directly to Dow, Cogburh & Friedman, P.C.,
escrow agent for Seller. Seller agrees to .apply the proceeds $nm the Traylor Contract
costs and izPenses incurred and to be incumd by Seller (e.g. survey costa, appraisal fe
environmental report fees, attorney's fees, and other costs incurred by Seller)
connection with the Land1rax Agreaanent. If there are any fonds remaining after payl
for expenses incurred and to be incurred by Bell e; in connection with the LanW
Agreement, Sell er shall be entitled to retain the same. Purchaser, and Sal]
acknowledge that there is no guarantee that the Lan&Ta: Agreement will ever
entered into in that there are parties other than Purchaser and Seller involved in su
negotiations, but Purchaser and Seller agree to exercise their good frith efforts to eat
Into the Land)Tax Agreement (although Seller shall got be required to spend gay nwn
other than that received Jim the Mmwlor Contract).
3. If Purchaser and Seller an unable to eater into the L m&Tax Agrsemi
despite their pod faith efforts, Purchaser shall have no obligation to reoanvey 1
Property to Seller, nor any obligation to pay to Seller any additional consideration.
the other band, it is anticipated that in connection with the Landaa: Agreement,l
parties to the Land)Tax Agreement will obtain an appraisal of the Property and
portions of the Seller Parcel that are to be conveyed (whether in fee or undivi(
Interests) to the Taxing Authorities. It Is agreed by Seller and Purchaser that if 1
Lan<az went is entered into, Seller shall be entitled to a credit against tai
awed by Seller to Purchaser in an amount equal to the appraised value of the PwX
(Le. that is, the value of the Property shall be taken into account as property convey
to Purchaser in connection with the Lan&Tax Agreement). Additionally, Sell er sh
convey to Purchaser (either in fee or as an undivided interest) portions of the Sella
Parcel in an amount equal to the amount of taxes owed by Seller to Purchaser (of
giving effect to and a credit for the value of the Property) through 1894 (if actual tau
for 1884 are not available at the time of conveyance, 1993 taxes shall be used as
estimate of taken owed for 1994 and once taxes for 1984 are known, Seller shall sitl
convey an additional portion of the Seller's Parcel (to be located actacent to the Propea
along Goose Creek) in an amount equal to the un1 erpa3maent, or if taxes for 1994 are h
than the taxes for 1993, Purchaser shall give Seller a credit against taxes that accrue
19915 in an amount equal to the overpRMantk By way of example, and not in limitati
of the forepiag, if (1) Seller owed Purchaser $100,000.00 in property taxes, intere
paving assessments, and the like, and (ii) the Property was valued at $3,000.00 an aces
then Seller would be entitled to a credit equal to ,
ft h 41 - N"17-001 to be applied Est the amounts owed
Seuer to Purchaser and Seller shall convey to Purchaser an additional portion of t
Seller's Parcel (either in fee or in undivided interests) in an amount equal
(i.e. the difference between the total tales and oth
amounts owed by Seller to Purchaser and the appraised value of the Property).-*
F
C�
SENT BY :DOWN GHBURN FRIEDMAN 4 -13 -94 ;12 :10PM ;DOWP COGBUR" _____ "713940609913 420 65864 4
4. A"tionally, s part of the consideration far the oonvs�rana of the
to Purchaser, Purchaser agrees to pay to Bona the sum of $100.00.
5. All obligations of Hell er under this Asreenmt are the several obli
of the persons oonstitutiag Seller and not the joint and several obligations of such 1
(the several liability being equal to the permtep ownership of the Property
seller's Parcel owned by such person).
EXECUTED in multiple counterparts to be effective the day of April,
LOLA BLAKE
ROBERT H. EDMUNDSON. Individually and
Independent Executor Of the RAde
of Dorothy R. Edmundson, Dewased
i•-•
H. BUSCH >NTER,PR.I3F..9 INC., a
Te=as corporation
La
Hemel Busch. President
CITY OF BAYTOWN
is Nul
3
SENT BY:DOW,COGBURN FRIEDMAN ; 4 -13 -84 ►12:11PM ;DOW,COGBUR" —" " " "" "'713940609913 420 65884 5
• oaw111010CM�oe+a u"lm
i
Fl
L'
•
THIS AGREEMENT, made effective this day of April, 1994 between
Traylor Bros., Inc., an Indiana corporation ('TBI "), and the City of Baytown, Harris
County, Texas, a municipal corporation formed under the laws of the State of Texas
( "the City")
WITNESSETH:
WHEREAS, TBI is the general contractor on Texas Department of Transportation
Project NH94(12 -M), Control No. 0389 -13 -034, (Loop 201) in Harris County, Texas ( "the
Project "), which requires the use of fill dirt material as a part of TBI's construction
process, and,
WHEREAS, the City is the owner of an 8 acre tract, more or less, of real estate
located in Harris County, Texas, more particularly described on Exhibit A ( "the Real
Estate "), attached to, and made a part hereof, and
WHEREAS, TBI desires to purchase, and the City desires to sell 143,000 cubic
yards, more or less, of soil from the Real Estate (the "Borrow Pit Area "),
NOW, THEREFORE, for and in consideration of the sum of $35,921, and other
good and valuable consideration, paid by TBI to the City, receipt of which is
acknowledged, the City grants TBI the right to remove 143,684 cubic yards, more or less,
of soil from the Borrow Pit Area, according to the following terms and conditions:
1. Commencing on the date of this Agreement, and continuing through
the term of the Project, TBI shall have the right to remove 143,684 cubic yards (more or
less) of soil from the Borrow Pit Area in the configuration set out on Exhibit B, attached
to, and made a part hereof.
2. Contemporaneously with the execution of this Agreement the City
shall provide to TBI an area upon which to construct a suitable access road to the
borrow pit area from the nearest public access road (Spur 201) consisting of an easement
of not less than thirty feet in width (the "Access Road Area "), a plat of which is attached
as Exhibit C.
3. TBI shall promptly cause the Borrow Pit Area and the Access Road
Area to be completely surrounded by a permanent, opaque fence, wall or other solid
structure not less than six (6) feet high which extends downward to within three (3)
inches of the ground, and which shall test, plumb and square throughout its length and at
all times. Such fence shall be constructed of redwood, rough cedar, chain link with wood
or metal slats, brick, brick columns with any one of the above, heavy metal with baked
enamel finish, or pressure- treated lumber. Plywood and corrugated metal fences are
prohibited. The City may waive such fence wall or other solid structure surrounding
such excavations on one or more sides if the City is satisfied that natural obstructions or
barriers make such unnecessary. Every opening in such fence or wall shall be equipped
EXHIBIT B
with a self - closing and self - latching device designed to keep, and capable of keeping,
• such doors or gates securely closed and locked at all times when not in actual use.
4. TBI shall deliver to the City Certificates of Insurance which will
meet the minimum amounts listed below and that the Contractor shall maintain the
same throughout the period of this contract.
a) Worker's Compensation: This coverage must comply with all
statutory amounts as required by Texas law.
b) Commercial General Liability: Requires a general Aggregate
of $1,000,000.00 and minimum of 5500,000 /--per occurrence.
c) Automobile Liability: Combined Single Limits of
$1,000,000.00 or limits of $250, 000 .00 /$500,000.00/$250,000.00 are acceptable.
No policy required herein shall be cancelable or subject to reduction
of coverage or other modification except after thirty (30) days prior written notice to the
City. TBI shall furnish the City with certificates of insurance for all subcontractors that
will be utilized on the project. Such subcontractors are required to meet all applicable
limits listed above. TBI shall cause the City to be named as an additional insured on all
liability policies along with a waiver of subrogation for the worker's compensation policy.
All insurance carriers providing coverage should have an A.M. Best rating of (A) or
higher and be licensed to do business in the State of Texas.
5. TBI agrees to and shall indemnify, hold harmless, and defend the
City, its officers, agents, and employees, from and against any and all claims, losses,
damages, causes of action, suits, and liability of every kind, including all expenses of
litigation, court costs, and attorneys' fees, for injury to or death of any person, or for
damage to any property, ( "an occurrence ") arising out of or in connection with the work
done by TBI under this contract, where such injuries, death, or damages are caused by
the joint negligence of the City or its agents. It is the expressed intention of the parties
hereto, both TBI and the City, that the indemnity provided for in this paragraph is
indemnity by TBI to indemnify and protect the City from the consequences of the City's
own negligence, only where that negligence is a concurring or contributing cause of the
injury, death, or damage; provided, however, that nothing contained herein shall require
TBI to indemnify the City from its sole negligence for any such occurrence.
6. The City warrants to TBI that it holds fee simple title to the Borrow
Pit Area.
7. In removing soil from the Borrow Pit Area, TBI agrees to at all
times be in full compliance with any federal, state or city statutes, laws or ordinances
governing soil removal.
8. TBI shall not voluntarily or by operation of law assign, transfer,
sublet or otherwise encumber all or any part of TBI's interest created under this
Agreement.
9. TBI warrants that the configuration of the Borrow Pit Area follow-
ing its removal of the soil contemplated by this Agreement shall meet or exceed any
federal, state or local ordinances in effect at the time TBI removes itself from the said
property.
10. This Agreement contains all agreements of the parties with respect
to the subject matter hereof. No prior Agreement or understanding pertaining to any
such matters shall be effective, and this Agreement may be modified in writing only,
signed by the parties in interest at the time of modification.
11. Any notice required to be given with regard to this Agreement shall
be in writing and may be given by personal delivery or by certified mail. Notice shall be
deemed given for the purposes of this Agreement upon personal deliver or seventy -two
(72) hours after deposited in any US postal service mailbox. Either parry may, by notice
to the other, specify a different address for notice purposes. TBI's address for notice
purposes shall be:
Traylor Bros., Inc. AND
2300 Decker Road
Baytown, TX 77520
Attn: Thomas W. Traylor, Jr.
The City's address for notice purposes shall be:
The City of Baytown, Texas
P.O. Box 424
Baytown, TX 77522
Attn: Ignacio Ramirez, Sr., Esq.
Traylor Bros., Inc.
835 N. Congress Ave.
P.O. Box 5165
Evansville, IN 47716 -5165
Attn: Joseph W. Annakin
12. This Agreement shall be governed by the laws of the State of Texas.
Venue shall lie in Harris County, Texas.
13. If either party brings an action to enforce the terms hereof, or
declare rights hereunder, the prevailing party in -any such action, on trial or appeal, shall
be entitled to its reasonable attorney's fees to be paid by the losing party as fixed by the
court.
EXECUTED effective the date and year first above written above.
TRAYLOR BROS., INC.
THE CITY OF BAYTOWN, TEXAS
i By: A By:
V President
•
LENTZ
ENGINEERING
CONSULTING CIVIL ENGINEERS AND PLANNERS
FIELD NOTES
FOR A
2.0000 ACRE TRACT
GEORGE ELIUS SURVEY, A-21
HARRIS COUNTY, TEXAS
A PARCEL OF LAND CONTAINING 2.0000 ACRES (87,121 SQUARE FEET) MORE OR LESS OUT OF
THAT CERTAIN 20.335 ACRE TRACT CONVEYED TO CHARLEITA CONDER BYTOM CONDER IN CAUSE
82-41657 IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS, 245th JUDICIAL DISTRICT, SAID 2.0000
ACRE TRACT BEING OUT OF LOT 5 OFTHE SUBDIVISION OFTHE GEORGE EW S SURVEY, ABSTRACT
NO. 21, HARRIS COUNTY, TEXAS AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A FOUND 518 INCH IRON ROD ON THE SOUTHERLY OFFSET CORNER OF
THE INTERSECTION OF THE NORTHERLY LINE OF INTERSTATE HIGHWAY 10 WITH THE
EASTERLY LINE OF GARTH ROAD, SAID POINT BEING THE MOST SOUTHERLY SOUTHWEST
CORNER OFTHAT CERTAIN 0.6346 ACRE TRACT CONVEYED TO EXXON COMPANY, U.SA BY
TOM CONDER BY DEED RECORDED UNDER COUNTY CLERKS FILE NO. H036275, OFFICIAL
PUBLIC RECORDS OF REAL PROPERTY, HARRIS COUNTY, TEXAS;
THENCE, N SW 15'198 E. ALONG THE NORTHERLY LINE OFTHE SAID INTERSTATE HIGHWAY
10 AT 150.00 FEET PASS A FOUND 1 114 INCH IRON PIPE, AT 285.00 FEET PASS A FOUND 112
INCH IRON ROD, AT 345.00 FEET [ASS A SET 518 INCH IRON ROD IN ALL A DISTANCE OF
G80 00 FEET TO A SET 518 INCH IRON ROD BEING THE POINT OF BEGINNING;
THENCE, N OB• 29' 16' W, A DISTANCE OF 414.97 FEET TO A SET 5/8 INCH IRON ROD;
THENCE, N SO. 15' 19' E, A DISTANCE OF 210.00 FEET TO A SET 518 INCH IRON ROD;
THENCE, S OS• 29' 18' E, A DISTANCE OF 414.97 FEET TO A SET 5/8 INCH IRON ROD;
THENCE, S 80.15' 19' W, ALONG THE NORTHERLY LINE OFTHE SAID INTERSTATE HIGHWAY
NO. 10 A DISTANCE OF 210.00 FEET TO THE POINT OF BEGINNING AND CONTAINING 20000
ACRES (87,121 SQUARE FEET) OF LAND MORE OR LESS.
• J . r • O , . •. r I , .. • • . •
.!
{ ') 2`Yi
THIS DESCRIPTION IS BASED ON THE SURVEY AND PLAT MADE BY ALFRED E. LENTZ,
REGISTERED PROFESSIONAL LAND SURVEYOR, ON APRIL 21, 1993, JOB NO. 93026.
1325 SOUTH LOOP WEST, SUITE 201 HOUSTON, TEXAS 77054
(713) 796.1212 FAX (713) 796.1219 EXHIBIT A
41
LtNn
0 ENGINEERING
CONSULTING CIVIL ENGINEERS AND PLANNERS
TRACT 2
FIELD NOTES
FOR A
0.9711 ACRE TRACT
GEORGE ELLIS SURVEY, A -21
Emil COUNTY, TE MS
A parcel of land containing 0.9711 Acres (429298 square feet) more
or less out of that certain 20.335 Acre tract conveyed to Charleita
Condor by Tom Conder in Cause 82 -41667 in the District Court of
Harris County, Texas, 245th Judicial District, said 0.9711 acre
tract being out of Lot 5 of the subdivision of the George Ellis
Survey, Abstract No. 21, Harris County, Texas and being more
particularly described as follows:
COimNCING at a found 5/8 inch iron rod on the southerly
offset corner of the intersection of the northerly line of
Interstate Highway 10 with the easterly line of Garth Road,
said point being the most southerly southwest corner of that
certain 0.6346 acre tract conveyed to Exxon Company, U.S.A. by
Tom condor by deed recorded under County Clerks File No.
H036275, Official Public Records of Real Property, Harris
County, Texas;
THENCE, N 800 15' 19" E. along the northerly line of the said
Interstate Highway 10 at 150.00 feet pass a found 1 1/4 inch
iron pipe, at 285.00 feet pass a found 1/2 inch iron rod, at
345.00 feet pass a set 5/8 inch iron rod in all a distance of
660.00 feet to a set 5/8 inch iron rod on the southeasterly
corner of that certain tract conveyed by Vona Charleita Conder
to Cracker Barrell Old Country Store, Inc. by deed recorded
under County Clerk's File No. P212031, Official Public Records
of Real Property, Harris County, Texas;
THENCE, N 080 29' 16" W. along the
easterly line of the said
Cracker Barrel tract a distance of
414.97 feet to a found 5/8
inch iron rod being the POINT OF
BEGINNING, said iron rod
being the northeasterly corner of the said Cracker Barrel
tract;
THENCE. S 800 15' 19" W. along the
northerly line of the said
Cracker Barrel tract a distance of
315.00 feet to a found 5/8
• inch iron rod on the northwesterly
corner of the said Cracker
Barrel site;
1328 SOUTH LOOP WEST, SUITE 201 HOUSTON, TEXAS 77054 EXHIBIT
0
THENCE, S 080 29' 16" E, along the westerly line of the said
Cracker Barrel tract a distance of 119.97 feet to a found 5/8
inch iron rod;
THENCE, S
80° 15' 19"
W, a
distance of 60.00 feet to a set
5/8
inch iron
rod;
THENCE, N
08°
29' 16"
W,
a distance of 179.97 feet to a
set
5/8 inch iron
rod;
THENCE, N
800
15' 19"
E.
a distance of 585.00 feet to a
set
5/8 inch iron
rod;
THENCE, S
080 29' 16"
E. a
distance of 60.00 feet to a set
5/8
inch iron
rod;
THENCE, S 80° 15' 19" W. a distance of 210.00 feet to the
POINT OF BEGINNING and containing 0.9711 acres (42,298 square
feet) of land more or less.
�uTZ• AM 21
•• ••••.••..••:.•• ALFRED E. LEIM, .P.L.S. #241
r 2413 •/'y
F 'MGiw .Lw`i�
This description is based on the survey and plat made by
Alfred E. Lentz, Registered Professional Land Surveyor, on
April 21, 1993, Job No. 93026.
EXHIBIT 4