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Ordinance No. 7,616960125 -1 ORDINANCE NO. 7616 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE PURCHASE OF PROPERTY ALONG MASSEY TOMPKINS FROM RACCOON ROAD LIMITED AS THE NEW FIRE STATION SITE; DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN EARNEST MONEY CONTRACT WITH RACCOON ROAD LIMITED FOR THE PROPERTY; 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 purchase of property along Massey Tompkins, which is described in Exhibit "A" which is attached hereto and incorporated herein for all intents and purposes, from Raccoon Road Limited as the new fire station site. Section 2: That the City Council of the City of Baytown, Texas, directs the Mayor and City Clerk of the City of Baytown to execute and attest to an Earnest Money Contract with Raccoon Road Limited. Such contract is attached hereto as Exhibit `B" and incorporated herein for all intents and purposes. Section 3: 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 the 25th day of January, 1996. ATTEST: EILEEN P. HALL, City Clerk 0 PETE C. ALFAR , Mayor ® APPROVED AS TO FORM: ACIO RAMIREZ, SR., ity Attorney cAklh l 2kooncikordinanceMiire prop. 25 • 960125 -1a • 0 EXHIBIT A I 1 i 4 , A Z / G / F EARNEST MONEY CONTRACT STATE OF TEXAS § COUNTY OF HARRIS § This Earnest Money Contract, hereinafter known as "Agreement," is made and entered into this day of , 1996, by and between the City of Baytown, a municipal corporation located in Harris and Chambers Counties, Texas, hereinafter known as the "Buyer," and Raccoon Road Limited, hereinafter known as the "Seller." I. IN GENERAL The Seller agrees to sell and convey to Buyer and Buyer agrees to buy from Seller the property described below. II. PROPERTY The property subject to this agreement is approximately 1.43 acres being a portion of Abstract 69 of the Christian Smith Survey, Baytown, Harris County, Texas, hereinafter called "Property." Such property being more specifically described in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes. III. SALES PRICE The sales price of the above - referenced property is THIRTY -ONE THOUSAND ONE HUNDRED FIFTY AND NO /100 DOLLARS ($31,150.00), which sum shall be paid in full at closing and shall be referred to herein as "Sales Price." IV. - EARNEST MONEY Buyer shall deposit FIVE HUNDRED AND N01100 DOLLARS ($500.00) as earnest money with Stewart Title, as Escrow Agent, upon execution of this contract by both parties. isEarnest Money Contract, Page 1 EXHIBIT 13 V. i TITLE POLICY AND SURVEY Seiler shall furnish to Buyer at Seller's expense an Owner Policy of Title Insurance (the "Title Policy ") issued by Stewart Title (the "Title Company ") in the amount of the Sales Price, dated at or after closing, ensuring 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 contract 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 contract, 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 five (5) 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 Buyer. 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 of 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) showing any discrepancies or conflicts in boundaries, any visible encroachments, and any portion of the Property lying within the Earnest Money Contract, Page 2 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. Buyers 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 the Schedule of the Commitment shall not be deemed to have been waived. If objections are made by Buyer, or any third party lender, 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 contract shall terminate and the Earnest Money shall be refunded to Buyer, unless Buyer elects to waive the objections. VI. CLOSING The closing of the sale shall be on or before the 17th day of April, 1996, or within seven (7) days after objections to title and 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 XI hereof. At closing, the Seller shall furnish tax statements or certificates showing no delinquent taxes are due and owing on the Property and shall tender a General Warranty Deed conveying good and indefeasible title showing no additional exceptions. VII. POSSESSION The possession of the Property shall be delivered to Buyer at closing. VIII. SPECIAL CONDITION -- CONTINGENCY This Agreement is contingent on the Seller's successful filing of a plat approved by the Growth Management and Development Advisory Commission dividing the 4.12 acre tract of land owned by Raccoon Road Limited into the three tracts as identified in Exhibit "A" prior to the Closing Date. If such property is not platted on or before the Closing Date, (a) the Buyer shall not be obligated under this contract to proceed with the purchase of the property; (b) the Earnest Money shall be immediately refunded to Buyer; and (c) the parties shall be released of all obligations under this Agreement. 0 Eamest Money Contract, Page 3 IX. SALES EXPENSES The following expenses shall be paid at or prior to closing: . A. Appraisal fees shall be paid by Buyer. B. Seller shall be responsible for all expenses associated with the following: releases of existing liens, including prepayment penalties and recording fees; release of Seller's loan liability; tax statements or certificates; preparation of deed; one -half of escrow fee; the surveying and platting requirements for the subdivision of the Property; and other expenses stipulated to be paid by Seller under other provisions of this Agreement. X. PRORATIONS Interest on any loan, 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. 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. XI. DEFAULT If Buyer fails to comply with this contract, 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 contract and receive the Earnest Money as liquidated damages, thereby releasing both parties from this contract. If Seller is unable without fault to deliver the Commitment within the time allowed, Buyer may either terminate this contract 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 contract 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 contract and receive the Earnest Money, thereby releasing both parties to this contract. 0 Earnest Money Contract, Page 4 XII. ATTORNEY FEES If the Buyer or Seller is a prevailing party in any legal proceeding brought under or with relation to this contract, such party shall be entitled to recover from the non - prevailing parties all costs of such proceeding and reasonable attorney's fees. XIII. ESCROW The Earnest Money is deposited with Escrow Agent with the understanding that Escrow Agent is not (a) a party to this contract and does not have any liability for the performance or non- performance of any party to this contract, (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 parry 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 contract 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 applied first to any cash down payment, then to Buyer's closing costs, and any excess 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 (a) 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. If any representation in this contract is untrue on the Closing Date, this contract may be terminated by Buyer and the Earnest Money shall be refunded to Buyer. All representations contained in this contract 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 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. 0 Eamest Money Contract, Page 5 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: ES LLER Raccoon Road Limited c/o .lames Brill P.O. Box 22870 Houston, TX 77227 -2870 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 a fire station for the City of Baytown. If Buyer ascertains that applicable zoning ordinances, easements, restrictions or governmental laws, rules or regulations prevent such intended use or that the Property is located within the one hundred (100) year flood plain as shown on the current Federal Emergency Management Agency, and Buyer so notifies Seller within 30 days after the effective date of this contract, the same 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. 0 Earnest Money Contract, Page 6 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. X.X. 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 of complete relief to be recorded in the arbitration proceeding. isEarnest Money Contract, Page 7 XXIII. MISCELLANEOUS PROVISIONS This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Seller and the Buyer only. 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. XIV. 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. 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 , 1996, the date of execution by the Mayor of the City of Baytown. N0got; 7 Raccoon Road Limited Property Owner BUYER PETE C. ALFARO, Mayor City of Baytown, Texas 0 Earnest Money Contract, Page 8 ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney STATE OF TEXAS COUNTY OF HARRIS Before me on this day personally appeared , in his official capacity as of Raccoon Road Limited, Owner of the Property, 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 day of ,1996. 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