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Ordinance No. 8,142971125 -4a ORDINANCE NO. 8142 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE PURCHASE OF PROPERTY FOR THE BAYTOWN NATURE CENTER FROM JOHN P. BENDER, INDIVIDUALLY AND AS TRUSTEE; DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN EARNEST MONEY CONTRACT WITH JOHN P. BENDER, INDIVIDUALLY AND AS TRUSTEE; 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, authorizes the purchase of certain property in and/or near the Brownwood Subdivision, which is described in Article II of the Earnest Money Contract, which contract is marked Exhibit "A" and attached hereto and incorporated herein for all intents and purposes, from John P. Bender, Individually and as Trustee, for the development and growth of the Baytown Nature Center. Section 2: That the City Council directs the Mayor and City Clerk of the City of Baytown to execute and attest to that certain Earnest Money Contract with John P. Bender, Individually and as Trustee, which is attached hereto as Exhibit "A." 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 25`h day of November, 1997. PETE C. ALFAR , Mayor ATTEST: ,. EILEEN P. HALL, City Clerk APPROVED AS TO FORM: r ACIO RAMIREZ, S ity Attorney c: \klh68\ council\ Ordinance \BenderGamestMoneyContract .Ordinance 0 EARNEST MONEY CONTRACT • STATE OF TEXAS § COUNTY OF HARRIS § This Earnest Money Contract is made and entered into this day of November, 1997, by and between the CITY OF BAYTOWN, a municipal corporation located in Hams and Chambers Counties, Texas, hereinafter known as the `Buyer," and JOHN P. BENDER, INDIVIDUALLY AND AS TRUSTEE, 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 contract is Seller's undivided one -half interest in approximately 27.9345 acres being a portion of Tract 1, Block 9, Town of Wooster, Baytown, Harris County, Texas (referenced by the Hams County Appraisal District by account number 038 -019 - 000 - 0001), together with Seller's interest in thirty -three (33) tracts, more fully described in Exhibit "A" attached hereto and incorporated herein for all intents and purposes (referenced by the Harris County Appraisal District account numbers indicated in said Exhibit "A "), hereinafter collectively called "Property." However, there is expressly excluded from the conveyance herein contemplated all the oil, gas and sulfur which can be removed from the Property without any right whatsoever remaining to the Seller or to any other owner of such mineral interest of ingress or egress to or from the surface of the Property for the purposes of exploring, drilling, developing, or mining the same. III. SALES PRICE The sales price of the above - referenced Property is TWO HUNDRED FIFTY THOUSAND AND NO 1100 DOLLARS ($250,000.00), which sum shall be paid in full at closing and shall be referred to herein as "Sales Price." Earnest Money Contract, Page I EXHIBIT A IV. EARNEST MONEY Buyer shall deposit FIVE HUNDRED AND N01100 DOLLARS ($500.00) as earnest money with Commerce Land Title, as Escrow Agent, upon execution of this contract by both parties. V. TITLE POLICY AND SURVEY Seller shall furnish to Buyer at Seller's expense an Owner Policy of Title Insurance (the "Title Policy ") issued by Commerce Land Title (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 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. 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 at least one full day, excluding Saturdays, Sundays, and holidays observed by Buyer, prior to the Closing Date, the time for delivery shall be automatically extended up to fifteen (15) calendar days. Buyer shall have one full day, excluding Saturdays, Sundays, and • Earnest Money Contract, Page 2 ® holidays observed by the Buyer, 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. • At any time prior to the Closing Date, 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 on the ground with the comers 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 (1 Q4) year flood plain as shown on the current Federal Emergency Management Agency map; and (0 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, Seiler shall with all diligence cure the objection within fifteen (15) 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. Should the Commitment reflect that Seller does not have an interest in a portion of the Property, the Buyer may proceed with the closing on those parcels more specifically described in Article Ii hereof in which the Seller does have an interest according to the Commitment; provided that the Sales Price is reduced in proportion to the value of the land which the Buyer is not purchasing. For purposes of this paragraph, the parties hereto agree that the values of the properties are as follows: Earnest Money Contract, Page 3 ® VI. CLOSING The closing of the sale shall be on or before the 26' day of November, 1997, or within five (S) 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 XII hereof. At closing, Seller shall furnish tax statements or certificates showing no delinquent taxes are due and owing on the Property, and Seller shall tender a General Warranty Deed conveying good and indefeasible title showing no additional exceptions, other than those not objected to by Buyer or waived by Buyer pursuant to article V hereof If Buyer requests a survey and it is not available. by the Closing Date for any reason, this shall not extend the Closing Date or this Earnest Money Contract, and Buyer shall have the option of closing without a survey. Further, if Buyer shall obtain a survey after the Closing Date, Seller agrees to cooperate with Buyer in executing any documents containing a more specific legal description of the property from the survey or otherwise, if obtained subsequent to the Closing Date. VII. POSSESSION The possession of the Property shall be delivered to Buyer at closing. VIII. SPECIAL CONDITION -- CONTINGENCY This contract is contingent on the Seller identifying the true owner of the Property to the Buyer and submission to the Buyer of a copy of the trust agreement identifying the true owner of the same. If the true owner of the Property is not identified and a copy of the trust agreement identifying the true owner is not obtained as required herein by 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 contract. IX. PROPERTY TO BE CONVEYED "AS IS" Both parties hereto expressly agree that, as is the case with all property, there may be hazardous substances located on or beneath the Property or in the groundwater underlying the Property. Seller has not done a specific environmental audit of the Property. Buyer is advised and hereby given permission to undertake a thorough investigation prior to concluding the proposed purchase of the Property. Since the Property is being sold "as is," Buyer assumes the risk of hazardous substances being found on or beneath the Property whether or not Buyer undertakes an investigation prior to concluding the purchase. Should such an investigation be conducted by the • Buyer and should the results of the investigation reveal the presence of hazardous materials of Earnest Money Contract, Page 4 ® whatever nature being found in any way connected with the Property, (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 contract. X. 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 the expenses associated with the following: any appraisal fees incurred by Seller, 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 the escrow fee; and other expenses stipulated to be paid by Seller under other provisions of this contract. X.I. 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. X1 1. 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, receive the Eamest Money Contract, Page 5 Earnest Money, and seek such other relief as may be provided by law, thereby releasing both parties to this contract. XIII. 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. . XI V. 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 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 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 cost, 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. XV. 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, other than ad valorem taxes. 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. XVI. 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. Earnest Money Contract, Page 6 • XVII. 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 John P. Bender, Individually and as Trustee Mueller & Vacek, L.L.P. 1005 Congress Avenue Suite 950 Austin, TX 77522 BUYER City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 XVIII. 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. XIX. USE The intended use of the Property by Buyer is for public use as the Baytown Nature Center. 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 prior to the Closing Date, 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. Earnest Money Contract, Page 7 XX. 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. XXI. GOVERNING LAW This contract 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. XXII. SEVERABILITY All parties agree that should any provision of this contract be determined to be invalid or unenforceable, such determination shall not affect any other term of this contract, which shall continue in full force and effect. XXIII. NO RIGHT TO ARBITRATION Notwithstanding anything to the contrary contained in this contract, 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 contract 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 proceedings. XXIV. MISCELLANEOUS PROVISIONS This contract shall not bestow any rights upon any third party, but, rather shall bind and benefit the Seller and the Buyer only. This contract 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. Earnest Money Contract, Page 8 ® XV. AUTHORITY • The persons executing this contract on behalf of the parties hereby represent that such persons have full authority to execute this contract and to bind the party he /she represents. IN WITNESS WHEREOF, the parties hereto have executed this contract in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same contract on the day of November, 1997, the date of execution by the Mayor of the City of Baytown. ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: JCKXCIO RAMIREZ, SR. y Attorney Earnest Money Contract, Page 9 SELLER: JOHN P. BENDER, Individually and as Trustee, Property Owner BUYER: PETE C. ALFARO, Mayor City of Baytown, Texas • • STATE OF TEXAS § COUNTY OF HARRIS § Before me on this day personally appeared John P. Bender, Individually and as Trustee, as 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 November, 1997. Oki h69\ contracts\ DcndcrPropertics\ EamcstMoncyContratt .Bcndcr.Clean Eamest Money Contract, Page 10 Notary Public in and for the State of Texas • EXHIBIT "A" Tract t o /d OWned ' Property Description HCAD Tax Account - ° APProx. Acreage Approx.- _Net Acreage 1 1/3 Tract A being out of Lots 13 & 14, Block AA (Lot 14A, Block AA) 066 -104- 002 -0043 1.0274 0.3425 2 1/3 Block AA, Lot 14 066 -104 -002 -0014 1.6550 0.5517 3 1/3 Block A, Lot 16 066 -104 -001 -0017 0.9200 0.3067 4 1/3 Block A, Lot 17 066 -104 -001 -0035 1.8370 0.6123 5 1/3 Block A, Lot 18 066 -104 -001 -0037 1.0640 0.3547 6 1/3 Tract 20D, Block AA, part of Lot 20 (016* Lot G) 066 -104 -002 -0038 0.1298 0.0433 7 1/3 Block B, Lot 26 066 -104- 003 -0026 0.6541 0.2180 8 1/3 Block BB, Lot 18 066 -104- 004 -0018 0.6681 0.2227 9 1/3 Block BB, Lot 15 066 -104- 004 -0020 0.4878 0.1626 10 1/3 Block F, Lots I & 18 through 33 066 -105- 003 -0001 5.3830 1.7943 11 1/3 Block W, Tract 4A & Lots 5 through I 1 066 -105- 006 -0005 9.8233 12744 12 1/3 Block W, Lot 12 066 -105- 006 -0014 1.5811 0.5270 13 1/3 Block X, Lots 10 & I 1 066- 105- 007 -0010 1.0101 0.3367 14 1/3 Block XA, Lot 12 066 - 105 -010 -0012 0.2893 0.0964 15 1/3 Block XC, Lot 11 066-105-012-0011 0.2536 0.0845 16 1/3 Block.XC, Lots 20 through 22 066 - 105 -012 -0020 -0.9667 0.3222 17 1/3 Block XD, Lots 20, 21, 24, & 22A 080 -308- 000 -0020 0.8527 0.2842 18 1/3 Block XE, Lot 27 through 36 080- 307 - 000 -0027 3.0281 1.0094 19 1/3 Block XF, Lot I through 3 & 16 through 18 066 - 105 -013 -0001 1.5908 0.5303 20 I/3 Block XF, Lots 6 through 8 & I 1 through 13 066 - 105 -013 -0006 1.3452 0.4484 21 1/3 Block XH, Lots 9 through 15 (016 *Lots I through 17) (Replat Blocks XH to XK] 091 -321- 000 -0009 1.6892 0.5631 22 1/3 Block XI, lots I through 9 (016 *Lots 1 through II) 091 -322- 000 -0001 2.1829 0.7276 23 1/3 Block XJ, Lots I through 3 (016* Lots I through 4) 091 -323- 000 -0001 1.0000 0.3333 24 I/3 Block XK, Lots I through 4 091 -324- 000 -0001 0.8103 0.2701 25 1/3 Block XK, Lot 7 091 -324- 000 -0007 0.2204 0.0735 26 1/3 Block XK, Lots 10 though 12 091 - 324 -000 -0010 0.6860 0.2287 27 1/3 Block Y, Lots 10 & 11 066 -105- 008 -0010 0.9986 0.3329 28 1/3 Block Z, Lots 14, 15 & 16 066 -105- 009 -0014 1.4636 0.4879 29 1/3 Block 7, Tract I Town of Wooster 038 - 017 - 000 -0001 3.2070 1.0690 30 1/3 Block K, Tract 7A Town of Wooster 038- 009 -000 -0007 0.4580 0. 1527 31 1/2 Block 8, Tract 1 Town of Wooster 038 -018- 000 -0001 8.9139 4.4570 32 1/3 Block 81 Tract IA Town of Wooster 038 -018- 000 -0004 3.5611 1.1870 33 113 Block 8, Tract I B, Town of Wooster 038 -018- 000 -0006 5.000 1.6667 :Total 23:07 l7 •