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Ordinance No. 8,27498051.4 -7 ORDINANCE NO. 8274 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, ® TEXAS, AUTHORIZING THE PURCHASE OF PROPERTY AT 2505 MARKET STREET, BAYTOWN, TEXAS, FROM BAYSHORE NATIONAL BANK; DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN EARNEST MONEY CONTRACT FOR SUCH PURCHASE; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. / 1 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, 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 Bayshore National Bank, Section 2: That the City Council directs the Mayor and City Clerk of the City of Baytown to execute and attest to the Earnest Money Contract, which is attached hereto as Exhibit "A," with Bayshore National Bank. 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 14`h day of May, 1998. ATTEST: — EILEEN P. HALL, City Clerk APPROVED AS TO FORM: c: kIW\Counci1\ Ordinances \EarnestMoneyContract. Bayshore PETE C. ALFARO, Mayor ® EARNEST MONEY CONTRACT CJ STATE OF TEXAS § COUNTY OF HARRIS § This Earnest Money Contract is made and entered into this day of May, 1998, by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, hereinafter known as the `Buyer," and BAYSHORE NATIONAL BANK, 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 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 Property is SIXTY -FIVE THOUSAND AND NO /100 DOLLARS ($65,000.00), 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 NO / 100 DOLLARS ($500.00) as earnest money with Commerce Land Title, Inc., as Escrow Agent, located at 5223 Garth Road, Baytown, Texas, upon execution of this contract by both parties. V. TITLE POLICY AND SURVEY Seller shall furnish to Buyer at Buyer's expense an Owner Policy of Title Insurance (the "Title Policy ") issued by Commerce Land Title, Inc., (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 Eamest Money Contract, Page I EXHIBIT A ® 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 at the specified time, the time for delivery shall be automatically extended up to fifteen (15) calendar 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 in Article XVII hereof. 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 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 Earnest Money Contract, Page 2 I u a ® in boundaries, any visible encroachments, and any portion of the Property lying within the one hundred (100) year flood plain as shown do 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 C of the Commitment shall not be deemed to have been waived. If objections are made by Buyer, Seller 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. VI. CLOSING The closing of the sale shall be on or before fhe 8' day of June, 1998, 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, Seller shall furnish tax statements or certificates showing no delinquent taxes are due and owing on the Property, and Seller shall tender a Special 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 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: A. Appraisal fees, escrow fees as well as fees associated with the preparation of the deed 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; and other expenses stipulated to be paid by Seller under other provisions of this contract. Earnest_ Money_ Contract, Page 3 4 0 • IX. PRORATIONS Except as otherwise provided in this article, interest on any loan, current taxes, any rents, maintenance fees, and assessments shall be prorated through the Closing Date. However, the Buyer expressly agrees to pay the current year's ad valorem taxes to the appropriate entities, without the necessity of any contribution from the Seller of the appropriate prorated amount. 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 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, oi• (b) terminate this contract, receive the Earnest Money, and seek such other relief as may be provided by law, thereby releasing both parties to this contract. XI. 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. XII. 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 Eamest Money Contract, Page 4 -. • 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. XIII. REPRESENTATIONS Seller represents that as of the Closing Date 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. XIV. 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 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 Bayshore National Bank Attn: Mickey H. Ryals, Vice President 6810 Garth Road Baytown, TX 77521 Earnest Money Contract, Page 5 Q. BUYER City of Baytown Attn: City Manager P.O. Boa 424 Baytown, TX 77522 • XVI. 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. XVII. USE The intended use of the Property by Buyer is as an annex for City Hall. 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. XVIII. 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. XIX. 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. XX. 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. Earnest_ Money_ Contract, Page 6 .. XXI. 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. XXII. 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. XXIII. AUTHORITY This contract is subject to approval of Seller's board of directors at its meeting on May 27, 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 May,-1998, the date of execution by the Mayor of the City of Baytown. SELLER: Earnest Money Contract, Page 7 C': Officer's Signature Officer's Printed Name Officer's Title BAYSHORE NATIONAL BANK Property Owner 0 ­ l BUYER: PETE C. ALFARO, Mayor CITY OF BAYTOWN, TEXAS ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR:, -City Attorney -- W STATE OF TEXAS § COUNTY OF HARRIS § Before me, _ , the undersigned notary public, on this day personally appeared , the , of Bayshore National. Bank, the__Owner _of the Property,.: known to me (or proved to me on the oath _of or .through his/her current (description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person)) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he /she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this _day of May, 1998. Notary Public in and for the State of Texas My commission expires: 0 - cAkIh86% contracts\ BayshorcNational Bank Propertylf_ arncsttitoncyCon tract, Bays horcNationaI [lank Earnest Money Contract, Page 8 • EXHIBLT ..A•. TRACT T: All Ellose certain lots or tracts situated in the l�llliam Scott Upl +er League out of flcrman hospital Es Cate, 71,641 acres tract described in Slier if f 5 Decd in Volume 569, Page cc ln 4. f acre rrnct o of of tl+c Harris County Decd Records and being a part of that uly land conveyed by Ilerman hospital Estate to F. u. Bert wheeler), on July 16, 1945, by 1)eed recorded in Volume 1391, Page 566 of 01c Harris County Deed RCCOCdr; sold [ract l+crein- described being described more particularly by mores and bounds is follows: [he BEGINNING at an iron pipe on the Soutl+easc side of Market Street Mond, Ni s and t1+e SouLhwcstcrly corner of Lot Nine (9) and being Northwest corner of Lot EighC (8), purchased 288.1 feet, South GO deg. 07' West from clic North corner of the 4.946 acres P f rntr. Herman hospital Estate by F. la. Bert Wheeler; ith cl+c Son n ch right -of -wily lie of Market Strecc, North 60 dcg• 07' 4tesL, a 1'iILNCE, w distance of L50 feet. co a point for corner; THENCE, South 29 deg. 53' Easc, a distance of 64.78 feet to a point for corner; THENCE, South 34 deg• 30' West, 164.66 feet to n Point for corner; Ten 10 and Eleven (11) of BERT Mll,r1-r•.1t'S BAY'roWtl TIIGNCE, North 29 deg. 53' 4tcst, a diTcance jE 135.06 feet to the PLACE Of F1f:CINNINC, said trace being known ns Lots Nine (9), BUSINESS MDITION. 'I' M C'f l I All [I,at certaln lot of trot[ situated in the ullliaru Scott Upper League Abs[ract tto. GG m e of [hilt CCrInin out of the 1lcrman`itoepittl eEllarria7CountyaDeed RecordaeandL being naSlperiff'a Dec n on volume 569, Page 437 of Wheelcr), t,,g1,G acre [race of land conveyed by Her,oan 11oep�nac 566 of t1+c111nrrts`Councy Deed July 16, 19/5, by Deed recorded in volume 1391, S Records; said bract 1+ereLn described bciug described more particularly by metes and bounds as follows: on [he Sautltrasc L side pucchaEedafrom Merman IlosPl[almEse tcgbyl +F• W. BEGINNING at an iron pipe Norchermosc corner of Elie 4.946 acre I T1 {E�;CE, with Elie South right- Of-u'afar!coroec beingStl+eeSo cl+uesCOColrner of�01115 4�csC, a distance of 138.1 feet Lo a point triangular shaped tract; bein the THENCE, $0colrnc0r ofgLhlslCrlangularlsl+aPc�l of ract l �78 feet co a point for corner, s Sou cl+cast THENCE, Nort1 34 deg. 30' East, 152.52 feet CO t,e POINT OF UEG1NNIttG, said tract being 011W BUSINESS ADDITION known as I-OC 12 of BERT NIIEELER'S BAYT 0