Ordinance No. 7,823962024 -1
ORDINANCE N0. 7823
® AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE
AND THE CITY CLERK TO ATTEST TO A LAND /TAX AGREEMENT AND AN
EARNEST MONEY CONTRACT WITH CHARLES NICKEL, INDIVIDUALLY AND
AS INDEPENDENT EXECUTOR OF THE ESTATE OF LOLA BLAKE, KATHRYN
BAYNE, H. BUSCH ENTERPRISES, INC., ROBERT HARRIS EDMUNDSON,
INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF
DOROTHY R. EDMUNDSON, AND DOROTHY JEAN EDMUNDSON;
AUTHORIZING RELEASE OF CERTAIN TAXES AND ASSESSMENTS OWED TO
THE CITY OF BAYTOWN OF UP TO TWO HUNDRED SEVENTY -SIX THOUSAND
SEVEN HUNDRED FORTY -THREE AND 86/100 DOLLARS ($276,743.86); 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 and directs
the Mayor and the City Clerk of the City of Baytown to execute and attest to a Land /Tax Agreement and
an Earnest Money Contract with Charles Nickel, Individually and as Independent Executor of the Estate
of Lola Blake, Kathryn Bayne, H. Busch Enterprises, Inc., Robert Harris Edmundson, Individually and
as Independent Executor of The Estate of Dorothy R. Edmundson concerning the property more
specifically depicted in Exhibit "A," which is attached hereto and incorporated herein for all intents and
purposes. A copy of the Land /Tax Agreement is attached hereto, marked Exhibit "B," and made a part
hereof for all intents and purposes; and a copy of the Earnest Money Contract is attached hereto, marked
Exhibit "C," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes the release of certain ad
valorem taxes and assessments as identified in the Land /Tax Agreement, in the amount of up to TWO
HUNDRED SEVENTY -SIX THOUSAND SEVEN HUNDRED FORTY -THREE AND 86/100
DOLLARS ($276,743.86).
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 24th day of October, 1996. n
PETE C. ALFAR , Mayor
ATTEST:
EILEEN P: HALL, City Clerk
APPROVED AS TO FORM:
I ACIO RAMIREZ, ity Attorney
cA1dh231city council lordinances\LandTaxSwap.Ord
S'EP, -26' 96 (THU) ID: 13 DOW. tOGBURNRFRIEDMAN ' TEL:94U bM r. . uv:
N I c.
it
J1
if
2i1 f
,; Ia r :1
r6
3; J,
14
Tr
" ..". •; .1 ; I � : ", .: . I I . -
EMBIT A
tj
gi
!till
j ;j!
L1
d
N I c.
it
J1
if
2i1 f
,; Ia r :1
r6
3; J,
14
Tr
" ..". •; .1 ; I � : ", .: . I I . -
EMBIT A
OCT. -22' 96 ME) 16:38 DOWCOGBURN TEL:9406099 P. 002
0
LANDITAX AGREEMENT
This Land/Tax Agreement (this "Agreement ") is by and among CHARLES NICKEL,
Individually and as Independent Executor of the Estate of Lola Blake, Deceased, ]KATHRYN
BAYNE, H. BUSCH ENTERPRISES, INC., a Texas corporation, ROBERT HARRIS
EDMUNDSON, Individually and as Independent Executor of the Estate of Dorothy R.
Edmundson, Deceased and DOROTHY JEAN EDMUNDSON, (collectively referred to
herein as "Seller "), THE CITY OF BAYTOWN, a municipal corporation of the Counties of
Harris and Chambers and the State of Texas ( "Baytown ").
RECITALS
WHEREAS, Seller owns approximately arses of land more
particularly described on Exhibit "A" attached hereto and made a part hereof (the
"Property"),
WHEREAS, Seller and Baytown have reached an agreement whereby Seller will
convey the Property to Baytown in exchange for: (i) the release of all taxes owed by Seller to
Baytown as of the date of this Agreement on certain other properties owned by Seller, as
more particularly described on Exhibit "B" attached hereto and made a part hereof (the
"Seller Properties "), {ii) a credit on future taxes owned to Baytown on the Seller Properties,
and (iii) the agreement by Baytown to assume the costs of removal of trash, debris and other
items from the Property
NOW, THEREFORE, for and in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller
and the Taxing Authorities hereby agree as follows:
1. The recitals set forth above are true, correct, and incorporated herein for all
purposes.
2. Seller agrees to convey and Baytown agrees to accept the Property, which is
agreed by the parties to have a fair market value equal to $ (the
"Purchase Price "), which Purchase Price is in excess of the amount of all taxes, assessments
(including, without limitation, road assessments), penalties, interests, and other charges
(collectively, the "Taxes ") owed by Seller to Baytown on the Property and the Seller
Properties through and including October 31. 1996, the amount of which Taxes is hereby
agreed by the parties to be $ . This Agreement is dated effective October
31, 1996. This Agreement is executed for the express purpose that Seller will not have any
liability, personal or otherwise, for the Taxes accrued and accruing on the Property and the
Seller Properties through and including the 1996 tax year.
3. Without limiting the generality of Paragraph 2, above, and subject to the
condition that nothing in this paragraph shall be construed as a waiver, discharge, acquittal,
or release of Seller for any taxes or subsequent assessments for prior years due to changes in
land usage or ownership, it is expressly agreed by Baytown that Baytown hereby waives,
discharges, acquits and forever releases each Seller from any and all liability for the Taxes
accrued and accruing on the Property and the Seller Properties through and including the
1996 tax year.
4. Without limiting the generality of Paragraph 2, above, Baytown further hereby
releases, discharges and forever acquits the Property and the Seller Properties from any and
EXHIBIT B
OCT. -22' 96 (TUE) 16:39 DOWCOGBURN TEL: 9406099 P.003
all liens held by Baytown, including, without limitation, any and all liens pertaining or
related to the Taxes accrued and accruing on the Property and the Seller Properties through
and including the 1996 tax year, including, without limitation, liens for road assessments.
5. Sellers agree that the first $ of the excess of the Purchase Price
over the Taxes (the "Cleanup Amount ") shall be applied toward the removal of trash, debris
and other items located at the Property, as Baytown deems appropriate in its sole discretion;
provided, however, that the costs of the removal of such items in excess of the Cleanup
Amount shall be borne by Baytown at its sole cost and expense; and provided, further, that
in the event the cost of such removal is less than the Cleanup Amount, Baytown may retain
the difference.
6, Baytown hereby agrees that the excess of the Purchase Price over the Taxes
and the Cleanup Amount (agreed by the parties to be $ ) shall be applied as
a credit toward the payment of all Taxes owing on the Seller Properties as follows (provided,
however, that Seller shall not be entitled to any interest on such excess): (i) for the tax year
1997, toward the payment of all Taxes owing on that portion of the Seller Properties
designated as Tracts 1 and 2 on the attached Exhibit "B "; and (ii) for tax year 1998 and all
subsequent years, in such manner as shall be designated by written instruction from Seller
to Baytown from time to time, until such excess amount is exhausted.
7. Baytown further agrees to pay for the cost of preparation of that certain survey
plat, prepared by Weisser Engineering Company, dated
8. The obligations of the parties contained in this Agreement are expressly made
contingent upon the closing of that certain Earnest Money Contract of October 31_1996, by
and between Sellers, collectively as "Seller," and Baytown, as "Buyer."
9. All obligations of Seller under this Agreement are the several obligations of the
persons constituting Seller and not the joint and several obligations of such persons (the
several liability being equal to the percentage ownership of the Property and/or Seller's
Properties owned by such person).
EXECUTED in multiple counterparts to be effective the day of
.1996.
Page 2
SELLER:
CHARLES NICKEL, Individually
and as Independent Executor of the Estate
of Lola Blake, Deceased
KATHRYN BAYNE
OCT. -22' 96 (TUE) 16:40 DOWCOGBURN TEL :9406099 P. 004
0
is
H. BUSCH ENTERPRISES, INC.
By
Hazel Busch, President
ROBERT HARRIS EDMUNDSON,
Individually and as Independent
Executor of the Estate of Dorothy
R. Edmundson, Deceased
DOROTHY JEAN EDMUNDSON
BAYTOWN:
THE CITY OF BAYTOWN, a municipal
corporation of the Counties of Harris and
Chambers and the State of Texas
By:
Name:
Title:
STATE OF TEXAS §
COUNTY OF HARRIS §
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared
CHARLES NICKEL, Individually and as Independent Executor of the Estate of Lola Blake,
Deceased, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that she executed the instrument for the purposes
expressed in the instrument.
Given under my hand and seal of office on this _ day of , 1996.
Page 3
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
OCT. -22' 96 (TUE) 16 : 40 DOWCOGOURN TEL : 9406099 P.005
0
•
STATE OF TEXAS
COUNTY OF HARRIS
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared
KATHRYN BAYNE, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that she executed the instrument for the purposes
expressed in the instrument.
Given under my hand and seal of office on this _ day of , 1996.
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
STATE OF TEXAS
COUNTY OF HARRIS
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared
HAZEL BUSCH, President of H. Busch Enterprises, Inc., a Texas corporation, known to me
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to
me that she executed the instrument for the purposes expressed in the instrument, on behalf
of said corporation.
Given under my hand and seal of office on this _ day of , 1996.
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
STATE OF TEXAS
COUNTY OF HARRIS
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared
ROBERT HARRIS EDMUNDSON, Individually and as Independent Executor of the Estate
of Dorothy R. Edmundson, Deceased, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that she executed the instrument for
the purposes expressed in the instrument.
Given under my hand and seal of office on this _ day of 11996.
Page 4
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
OCT. -22' 96ITUEI 16:41 DOWCOGBURN TEL:9406099 P.006
STATE OF TEXAS §
COUNTY OF HARRIS
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared
DOROTHY JEAN EDM TNDSON, known to me -to be the person Whose name is subscribed
to the foregoing instrument, and acknowledged to me that she executed the instrument for
the purposes expressed in the instrument.
Given under my hand and seal of office on this day of '1996.
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
STATE OF TEXAS
COUNTY OF HARRIS
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared
of THE CITY OF BAYTOWN, a municipal corporation of the
Counties of Harris and Chambers and the State of Texas, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he executed the
instrument for the purposes expressed in the instrument, on behalf of said municipal
corporation.
Given under my hand and seal of office on this , day of , 1996.
FM M\ 4.\ WPDOGS \1ow2a,wol4\LTAr,M7w.EsDuo=mi& B
•
Page 5
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
OCT. -22' 96 (TUE) 16:41 DOWCOGBURN
STATE OF TEXAS
COUNTY OF HARRIS
TEL:9406099
=-.4 Of._
§ KNOW ALL MEN BY THESE PRESENTS:
P. 007
CHARLES NICKEL, Individually and as Independent Executor of the Estate of
Lola Blake, Deceased, KATHRYN BAYNE, H. BUSCH ENT MPRISE.S, INC., a Texas
corporation, ROBERT HARRIS EDIVIUNDSON, Individually and as Independent Executor of
the Estate of Dorothy R. Edmundson, Deceased and DOROTHY JEAN EDMUNDSON
(collectively, "Grantor "), for and in consideration of the sum of Ten Dollars ($10.00) in hand
paid and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, has GRANTED, SOLD, and CONVEYED, and by these presents does GRANT,
SELL, and CONVEY unto the CITY OF BAYTOWN ( "Grantee "), whose address is 2401
Market, P.O. Box 424, Baytown, Texas 77522, the real property described on Exhibit "A ",
which is attached hereto and incorporated herein for all purposes (the "Property ").
To the extent the same are validly existing and applicable to the Property, this
Deed is executed by Grantor and accepted by Grantee subject to: (i) the matters herein stated;
(ii) all matters of record in Harris County, Texas; and (iii) all matters that an on -the- ground
staked survey of the Property would reveal; (all of the foregoing are hereinafter collectively
referred to as the "Permitted Encumbrances ").
TO HAVE AND TO HOLD the Property, together with any and all the rights and
appurtenances thereto in anywise belonging to Grantor, unto Grantee, its successors and assigns,
FOREVER, subject to the Permitted Encumbrances. Grantor does hereby bind themselves, their
successors, and assigns to WARRANT AND FOREVER DEFEND all and singular the title to
the Property, unto the said Grantee, its successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof.
EXCEPT FOR THE WARRANTY OF TITLE SET FORTH ABOVE, GRANTOR
EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY NATURE, KIND OR CHARACTER
WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE PROPERTY OR THE IMPROVEMENTS ON
THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF
HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE,
AND GRANTEE ACCEPTS SUCH PROPERTY AND IMPROVEMENTS IN AN "AS IS ",
"WHERE IS" CONDITION, WITH ALL FAULTS.
GRANTEE, BY ITS ACCEPTANCE OF THIS DEED EXPRESSLY WAIVES
ANY RIGHT OR CLAIM AGAINST GRANTOR FOR DAMAGES, RESCISSION OR OTHER
REMEDY AT LAW OR IN EQUITY WITH RESPECT TO OR RESULTING FROM THE
PHYSICAL CONDITION OF THE PROPERTY AND THE IMPROVEMENTS, IF ANY,
THEREON, INCLUDING WITHOUT LIMITATION, THE ENVIRONMENTAL CONDITION
OF THE PROPERTY AND THE FACT THAT PORTIONS OF THE PROPERTY MAY BE
EXHIBIT A
-I -
OCT. -22' 96 (TUE) 16:42 DOWCOGBURN TEL; 9406099 P.008
•
0
LOCATED WITHIN THE 100 -YEAR FLOOD PLAIN. THE WAIVER AND EXCULPATION
PROVIDED ABOVE SHALL BE DEEMED TO BE COVENANTS RUNNING WITH THE
PROPERTY AND BINDING ON ALL SUCCESSORS AND ASSIGNS OF GRANTEE AND
ALL OPERATORS OF THE PROPERTY.
Grantee agrees to pay (a) all 1996 taxes that accrue from and after the date of this
Deed and (b) any and all taxes for all subsequent years of ownership.
The maximum liability of Grantor hereunder shall be limited to the consideration
received by Grantor for this Deed, it also being agreed that the liability of each person or entity
constituting Grantor is the several obligation of each such person or entity and not the joint and
several obligation of any such person or entity. Grantee shall not assert any claim against
Grantor hereunder until Grantee has first pursued all applicable rights and remedies available
under the tide insurance policy, if any, received by Grantee in connection with this Deed and
all applicable appeal periods have expired.
Executed in multiple counterparts, on the dates set forth in the acknowledgments
below, to be effective the day of , 1996.
-2-
CHARLES NICKEL, Individually
and as Independent Executor of the Estate of
Lola Blake, Deceased
KATHRYN BAYNE
H. BUSCH ENTERPRISES, INC.
Lo
Hazel Busch, President
ROBERT HARRIS EDMUNDSON,
Individually and as Independent
Executor of the Estate of Dorothy*,
R. Edmundson, Deceased
DOROTHY JEAN EDMUNDSON
OCT. -22' 96 (TUE) 16:42 DOWCOGBURN
•
is
STATE OF TEXAS §
§
COUNTY OF HARRIS §
TEL :9406099 P.009
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally, appeared
CHARLES NICKEL, Individually and as Independent Executor of the Estate of Lola Blake,
Deceased, known to me to be the person whose name is subscribed to the foregoing instrument,
and acknowledged to me that he executed the instrument for the purposes expressed in the
instrument.
Given under my hand and seal of office on this _ day of 31996.
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
STATE OF TEXAS §
COUNTY OF HARRIS §
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared
KATHRYN BAYNE, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that she executed the instrument for the purposes expressed
in the instrument.
Given under my hand and seal of office on this W day of , 1996.
-3-
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
OCT.- 22'96(TUE) 16:42 DOWCOGBURN TEL:9406099
•
STATE OF TEXAS §
COUNTY OF HARRIS §
•
P. 010
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared
HAZEL BUSCH, President of H. Busch Enterprises, Inc., a Texas corporation, known to me
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that she executed the instrument for the purposes expressed in the instrument, on behalf of said
corporation.
Given under my hand and seal of office on this _ day of
STATE OF TEXAS
COUNTY OF HARRIS §
1996.
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared
ROBERT HARRIS EDMUNDSON, Individually and as Independent Executor of the Estate of
Dorothy R. Edmundson, Deceased. known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that he executed the instrument for the
purposes expressed in the instrument.
Given under my hand and seal of office on this day of
-4-
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
OCT. -22' 96 (TUE) 16:43 DOWCOGBURN
STATE OF TEXAS §
COUNTY OF HARRIS §
TEL:9406099 P.011
BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared
DOROTHY JEAN EDMUNDSON, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that she executed the instrument for the
purposes expressed in the instrument.
Given under my hand and seal of office on this _ day of 11996.
O:\ WPDOCS kl0o5Z3=14%S WDF-ED09. LSD11022961617
•
-5-
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS
0 EARNEST MONEY CONTRACT
STATE OF TEXAS §
COUNTY OF HARRIS §
This Earnest Money Contract is made and entered into this day of October, 1996,
by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers
Counties, Texas, hereinafter known as the 'Buyer," and CHARLES NICKEL, Individually and as
Independent Executor of the Estate of Lola Blake, Deceased, KATHRYN BAYNE, H. BUSCH
ENTERPRISES, INC., a Texas corporation, ROBERT HARRIS EDMUNDSON, Individually and
as Independent Executor of the Estate of Dorothy R. Edmundson, Deceased, and DOROTHY JEAN
EDMUNDSON, hereinafter collectively known as the "Seller."
1.
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 acres of land located in
Baytown, Harris County, Texas, more particularly described in Exhibit "A," which is attached hereto
and incorporated herein for all intents and purposes and shall be hereinafter referred to as "Property."
III.
SALES PRICE
The sales price of the above - referenced property is
($ ), hereinafter "Sales Price," which sum shall be paid through the extinguishment of all
taxes and assessments owed by Seller to Buyer through the date of the closing on the Property and
on certain other properties owned by Seller, and more particularly described in Exhibit "B," which
is attached hereto and incorporated herein for all intents and purposes and shall be hereinafter referred
to as "Properties."
Earnest Monet/ Contract, Page 1 EXHIBIT C
® IV.
EARNEST MONEY
Buyer shall deposit FIVE HUNDRED AND N01100 DOLLARS ($500:00) as earnest money
with San Jacinto Abstract Company, as Escrow Agent, upon execution of this Agreement by both
parties.
V.
TITLE POLICY AND SURVEY
Seller shall obtain at Buyer's expense an Owner Policy of Title Insurance (the "Title Policy ")
issued by San Jacinto Abstract Company (the "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 Conunitment
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
Earnest Money Contract, Page 2
® 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) 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 (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. 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 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.
VI.
CLOSING
The closing of the sale shall be on or before the 31 st day of October, 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
X hereof. At closing, Buyer shall furnish tax statements or certificates showing no delinquent taxes
to Buyer are due and owing on the Property and Properties as well as a release of all appropriate
assessments, and Seller shall tender a General Warranty Deed conveying good and indefeasible title
showing no additional exceptions, other than those not object to by Buyer or waived by Buyer
pursuant to article V hereof.
VII.
POSSESSION
The possession of the Property shall be delivered to Buyer at closing.
VIII.
SALES EXPENSES
® The following expenses shall be paid at or prior to closing:
Earnest-M- ongY Contract, Page 3
® A. Appraisal fees have been previously paid by Buyer.
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; tax statements or certificates; preparation of deed, one -half of escrow
fee; and other expenses stipulated to be paid by Seller under other provisions of this
Agreement.
1X.
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.
X.
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 and receive
the Earnest Money, thereby releasing both parties to this Agreement.
XI.
ATTORNEY FEES
If the Buyer or Seller is a prevailing party in any legal proceeding brought under or with
• relation to this Agreement, such party shall be entitled to recover from the non - prevailing parties all
costs of such proceeding and reasonable attorney's fees.
Earnest Money Contract, Page 4
El
XII.
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.
XIII.
REPRESENTATIONS
Seller represents that as of the Closing Date (a) there will be no Gens, 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 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.
Xv.
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
• Earnest Money Contract, Page 5
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:
ELLER
Thomas J. McCaffrey
Dow, Cogburn & Friedman, P.C.
The Coastal Tower, Suite 2300
9 Greenway Plaza
Houston, TX 77046
BUYER
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
X VI.
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.
X VII.
USE
The intended use of the Property by Buyer is a municipal park as well as a site for a future
animal control facility. 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 Buyer. Buyer's failure to give the notice within
the required time shall constitute Buyer's acceptance of the Property.
X VIII.
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
Earnest Money Contract, Page 6
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.
XIX.
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.
XX.
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.
XXI.
NO RIGHT TO ARBITRATION
Notwithstanding anything to the contrary contained in this Agreement, the Buyer and the
Seiler 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.
XXH.
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.
XIII.
® 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.
Earnest Money Contract, Page 7
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 , 199_, the date of execution
by the Mayor of the City of Baytown.
Earnest Money Contract, Page 8
SELLER:
CHARLES NICKEL, Individually and as Independent
Executor of the Estate of Lola Blake, Deceased
H. BUSCH ENTERPRISES, INC.
HAZEL BUSCH, President
ROBERT HARRIS EDMUNDSON, Individually and
as Independent Executor of the Estate of Dorothy R.
Edmundson, Deceased
DOROTHY JEAN EDMUNDSON
BUYER: CITY OF BAYTOWN, TEXAS
PETE C. ALFARO, Mayor
0 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 CHARLES NICKEL, Individually and as
Independent Executor of the Estate of Lola Blake, Deceased, 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
STATE OF TEXAS §
COUNTY OF HARRIS §
1996.
Notary Public in and for the State of Texas
Before me on this day personally appeared KATHRYN BAYNE, known to me to be the
person whose name is subscribed to the foregoing instrument and acknowledged to me that she
executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of 1996.
Earnest Money Contract, Page 9
Notary Public in and for the State of Texas
0 STATE OF TEXAS
COUNTY OF HARRIS
Before me on this day personally appeared HAZEL BUSCH, in his capacity as President of
H. BUSCH ENTERPRISES, INC., a Texas Corporation, known to me to be the person whose name
is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the
purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of , 1996.
Notary Public in and for the State of Texas
STATE OF TEXAS
COUNTY OF HARRIS
Before me on this day personally appeared ROBERT HARRIS EDMUNDSON, Individually
and as Independent Executor of the Estate of Dorothy R. Edmundson, Deceased, 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
STATE OF TEXAS §
§
COUNTY OF HARRIS §
1996.
Notary Public in and for the State of Texas
Before me on this day personally appeared DOROTHY JEAN EDMUNDSON, known to me
to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that
she executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of , 1996.
Notary Public in and for the State of Texas
® c:1kIf lkoatmc.Weamms
Earnest Money Contract, Page 10