Ordinance No. 9,976ORDINANCE NO. 9976
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AND THE CITY
CLERK TO ATTEST TO AN EARNEST MONEY AGREEMENT WITH THE
DIOCESE OF GALVESTON- HOUSTON AND THE SCANLAN
FOUNDATION FOR THE PURCHASE OF 15 ACRES ALONG WARD
ROAD; 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 hereby authorizes the Mayor
to execute and the City Clerk to attest to an earnest money contract with the Diocese of
Galveston - Houston and the Scanlan Foundation for the purchase of 15 acres along Ward Road.
Said contract is attached hereto as Exhibit "A," which is attached hereto and incorporated herein
for all intents and purposes.
Section 2: 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 29th day of December, 2004.
CALVIN MUNDINGER, Mayor
ATTEST:
GX-:K' W. SMITH, City Clerk
APPROVED AS TO FORM:
NACIO RAMIREZ, S ity- Attorney
0 RAKarenTilesTity Council\ QrdinanceMamestMoncyContractWard Road Property December .doc
® EARNEST MONEY CONTRACT
•
STATE OF TEXAS §
COUNTY OF HARRIS §
This Earnest Money Contract is made and entered into this day of
, 200_, by and between the CITY OF BAYTOWN, a municipal
corporation located in Harris and Chambers Counties, Texas, hereinafter known as the "Buyer,"
and THE DIOCESE OF GALVESTON- HOUSTON, a Texas non - profit corporation, and
SCANLAN FOUNDATION, a Texas non -profit corporation, collectively hereinafter known as
the "Seller."
I.
IN GENERAL
Subject to Article II hereof, the Seller agrees to sell and convey to Buyer and Buyer
agrees to buy from Seller the property described below.
II.
CONTINGENCY
This agreement is expressly contingent upon an environmental assessment of the
Property acceptable to the Buyer.
III.
PROPERTY
The property subject to this Agreement is located adjacent to Ward Road in Baytown,
Harris County, Texas, more particularly depicted as follows:
TR 7B
(016 *TR 14)(051 *TR 57A)
ABST 118 W BRITTON, HARRIS COUNTY, TEXAS,
and
TR 7F
(016 *TR 11)(051 *TR 57A -1)
ABST 118 W BRITTON, HARRIS COUNTY, TEXAS,
hereinafter collectively referred to as the "Property."
Earnest Money Contract, Page l
X11 �1.
® IV.
SALES PRICE
The sales price of the above - referenced property is TWO HUNDRED THOUSAND
AND N01100 DOLLARS ($200,000.00), hereinafter "Sales Price," which sum shall be paid in
full at closing on the Property.
V.
EARNEST MONEY
Buyer shall deposit ONE THOUSAND AND NO / 100 DOLLARS ($1,000.00) as earnest
money with Commerce Land Title Company, as Escrow Agent, upon execution of this
Agreement by both parties.
VI.
TITLE POLICY AND SURVEY
Seller shall obtain at Buyer's expense an Owner Policy of Title Insurance (the "Title
Policy ") issued by Commerce Land Title 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 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 ten (10)
Earnest Money Contract, Page 2
® 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 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 (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.
VII.
CLOSING
The closing of the sale shall be on or before the 25th day of March, 2005, or within seven
(7) days after objections to title, environmental assessment and/or 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 famish 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 VI hereof.
VIII.
POSSESSION
• The possession of the Property shall be delivered to Buyer at closing.
Earnest Money Contract, Page 3
IX.
SALES EXPENSES
The following expenses shall be paid at or prior to closing:
A. Buyer shall be responsible for the expenses associated with the appraisal;
environmental assessment; tax statements or certificates; preparation of deed;
escrow fee; and other expenses stipulated to be paid by Buyer under other
provisions of this Agreement.
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; taxes assessed prior to January 1, 2005; 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.
XI.
CHARGES DUE TO SELLER'S CHANGE IN USE
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.
XII.
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
Earnest Money Contract, Page 4
® 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, receive the Earnest Money, and seek such other relief as
may be provided by law, thereby releasing both parties to this Agreement.
•
XIII.
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.
XIV.
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.
XV.
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
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.
Earnest Money Contract, Page 5
® 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.
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:
Earnest Money Contract, Page 6
SELLER
The Diocese of Galveston - Houston
Attn: Real Estate Department
1700 San Jacinto Street
Houston, TX 77002 -8216
Fax:
and
Scanlan Foundation
Attn: Executive Director
2401 Fountain View Drive, Suite 312
Houston, TX 77057 -4827
Fax:
BUYER
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
Fax: 281 - 420 -6586
® 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 a recreational area and other municipal
purposes. 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.
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 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.
Eamest Money Contract, Page 7
® XXII.
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.
XXIII.
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.
XXIV.
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.
XXV.
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.
XXVI.
EXPIRATION
This Contract shall expire if not signed by the Seller on or before the 14`h day of
February, 2005.
Earnest Money Contract, Page 8
® 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 , 200_, the date of
execution by the Seller.
•
ATTEST:
GARY W. SMITH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
Earnest Money Contract, Page 9
SELLER: THE DIOCESE OF GALVESTON-
HOUSTON
Signature
Printed Name
Title
SELLER: SCANLAN FOUNDATION
Signature
Printed Name
Title
BUYER: CITY OF BAYTOWN, TEXAS
GARY JACKSON, City Manager
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, , the undersigned notary public,
on this day personally appeared the
of THE DIOCESE OF GALVESTON- HOUSTON acting in such
capacity, 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 ,
200
Notary Public in and for the State of Texas
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, , the undersigned notary public,
on this day personally appeared the
of SCANLAN FOUNDATION acting in such capacity, 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.
200
SUBSCRIBED AND SWORN before me this day of
Notary Public in and for the State of Texas
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Eamest Money Contract, Page 10