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Ordinance No. 10,400 , ORDNANCE NO. 10,400 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AN AGREEMENT FOR REPAIRS WITH KOLTONIUK DEVELOPMENT, LTD, TO REHABILITATE THE STRUCTURES LOCATED AT 2300 TAFT CIRCLE, BAYTOWN, HARRIS COUNTY, TEXAS; 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 City Manager to execute and the City Clerk attest to an Agreement for Repairs with Koltoniuk Development, Ltd, to rehabilitate the structures located at 2300 Taft Circle, Baytown, Harris County, Texas. A copy of said agreement is attached hereto as Exhibit"A" and incorporated herein for all intents and purposes. Section 3: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. / ���„ ,,,,I.TRODUCED, READ and PASSED by the affirmat. - ote of the City Council of the I,,VW* ; wn this the 14th day of September, 2006. au,............._ •,._• $0---i :-. �V11T/ . . ) S EPHEN H. DONCARLOS Ma .r : iiillibigik Jet 1 L 3 ° :/Th I DY, City Clerk APPROVED AS TO FORM: 24 ACIO RAMIREZ, SR., Attorney R:\Karen\Files\City Council\Ordinances\2006\September 14\Agreement4Repairs4TaftCircle.doc AGREEMENT FOR REPAIRS STATE OF TEXAS § § COUNTY OF HARRIS § THIS AGREEMENT FOR REPAIRS is between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, (the "City ") and Koltoniuk Development, LTD, the owner of the property located at 2300 Taft Circle, Baytown, Harris County, Texas (the "Owner "). WHEREAS, the Owner is under contract to purchase the property and all of the buildings and structures on the property located at 2300 Taft Circle. Baytown, Texas (the 'Property" as shown in a plat of the premises marked as Exhibit "A" and being attached hereto and made a part hereof for all purposes); and WHEREAS, the Property was brought before the Urban Rehabilitation Standards Review Board (the "Board") on the 11 `h day of July, 2005: and WHEREAS, at such meeting, the Board ordered ten (10) apartment buildings and a mechanical building located on the Property (the "Structures ") demolished; and WHEREAS, the Owner desires to repair the Structures in strict compliance with the terms herein, and WHEREAS, the City Council is willing to stay the demolition order based upon the terms and conditions herein: NOW THEREFORE, for and in consideration of the foregoing premises and the mutual covenants and agreements herein contained, the parties hereto do hereby mutually agree as follows: Owner's Representations. 1.01 Own Property. Owner hereby represents that it has entered into a valid and binding contract to purchase the Property and shall be the record owner of the Property. which includes all of the structures that are the subject hereof, on or before October 16. 2006, and that no other person or entity will have an ownership interest in the same after such date. Should the Owner fail to close on the Property on or before October 16, 2006, and provide evidence of ownership of the Property by such date, the demolition order of the Board shall no longer be stayed and the City may terminate this Agreement without further notice and demolish the Structures. The provisions of Sections 3 and 6.02 regarding notice and an opportunity to cure shall not apply to a termination according to this Section 1.01. Agreement for Repair, Page 1 EM A AV,,.. 1.02 Ability to Enter Agreement. As of the effective date of this Agreement, the Owner has the power and the authority necessary to enter into and perform under this Agreement. 1.03 Need for Repair. Owner acknowledges that all Structures including, but not limited to, the ten (10) apartment buildings and one (1) mechanical building located at 2300 Taft Circle, Baytown, Harris County, Texas, and collectively known as the Taft Circle Apartments., constitute a danger to the public, whether or not such Structures are secured from entry, and are dilapidated, substandard, unfit for human habitation, in need of repair and a hazard to the public health, safety, and welfare of the citizens of Baytown, if not repaired in accordance with this Agreement. 2. Owner's Commitments. 2.01 Commitment to Repair. The Owner hereby agrees to repair the Structures in conformance with all applicable laws, rules and regulations of the City and any other governmental entity so that, upon approval by the Chief Building Official of the City, the Structure fully satisfies the Codes of the City of Baytown, Texas, including, but not limited to, the Code of Ordinances, Baytown, Texas; the National Electrical Code; the International Plumbing Code; the International Mechanical Code; International Fire Code and the International Building Code, as adopted by the City of Baytown. Texas (collectively, the "Codes ") in accordance with the scope of work, detailing the events and times of completion of each event, which are attached hereto as Exhibit `B" and incorporated herein for all intents and purposes. It is understood and agreed that grandfathering provisions may apply to some of the repairs to be performed by the Owner, and to the extent that those provisions apply, the repairs must only come up to the standards applicable at the time of the original construction. Compliance with the Codes shall include, but not be limited to, obtaining an asbestos survey, abating the asbestos, if any, to the extent required by law, providing sealed construction drawings; employing licensed professionals for those repairs required to be made by a licensed professional pursuant to the Codes; providing a structural investigation with recommendations provided by a licensed professional engineer in the state; obtaining or causing to be obtained all required permits pursuant to the Codes; obtaining and satisfying all required inspections; and obtaining a certificate of occupancy for the Structure . 2.02 Cash Bond Required. Within three (3) business days after closing, the Owner shall provide a cash bond in the amount of ONE HUNDRED TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($125,000.00) to the City, the purpose of which is to ensure payment of the expenses associated with demolition of the Structure should Owner fail to fully perform all obligations expressed herein in accordance with the terms and conditions of this Agreement. The funds will be maintained in an interest- bearing account and will earn interest at the City's Texas Local Government Investment Pool ("TxPOOL ") rate. In the event the City. determines that any work is not complete in accordance with all applicable Agreement for Repair. Page 2 AW building or construction codes in a timely manner as required herein or if the Owner breaches any other provision of this Agreement, the City shall demolish the Structures and deduct all costs associated in any way with the asbestos abatement and demolition from the cash bond amount upon fifteen (15) days notice as provided in this Agreement to the Owner. Within 30 days of the issuance of a certificate of occupancy for all buildings or within 30 days after completion of the demolition, the City shall refund any balance of the cash bond to Owner including interest earnings thereon. Should the costs to abate the asbestos together with the demolition of the Structures exceed the amount of the cash bond, the City shall have the right to pursue all legal remedies as provided by law. This section shall survive termination of this Agreement and if this Agreement is terminated, the ONcner agrees that, upon termination. the Owner forfeits and relinquishes any and all rights to the bond. AVOK Should the Owner fail to timely provide the cash bond in accordance with this Section, the demolition order of the Board shall no longer be stayed and the City may terminate this Agreement without further notice and demolish the Structures. The provisions of Sections 3 and 6.02 regarding notice and an opportunity to cure shall not apply to a termination according to this Section 2.02. 2.03 Memorandum of the Stay of Demolition Order. The Owner shall also execute, contemporaneously with the execution of this Agreement, a Memorandum of the Stay of the Demolition Order, the form of which is attached as Exhibit `C," to be recorded as a short form of this Agreement as a public record in the appropriate jurisdiction in which the Property is located, and to be held in the possession of the City. The Owner shall reimburse the City with all expenses of recordation of such Memorandum within 30 days from the date of an invoice therefor. 2.04 Multifamily License. The Owner shall make an application for a multi - family license once all Structures are rehabilitated in accordance with the City of Baytown Code of Ordinances. 2.05 Release. The Owner assumes full responsibility for the work to be performed and the condition of the Structures. The Owner releases, relinquishes, and discharges the City, its officers, agents and employees from all claims, demands and causes of action of every kind and character for any loss, injury or damage caused by the Owner, its officers, agents, employees, servants, representatives, contractors and subcontractors to the parties or of third persons related to, arising out of, or connected with the work to be performed under the Demolition Order of the Board and this Agreement The release provided for in this paragraph shall not expire but shall survive the expiration or termination of this Agreement. 2.06 Indemnity. THE OWNER HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, PROTECT AND DEFEND CITY, ITS OFFICERS, Agreement for Repair. Page 3 AGENTS, AND EMPLOYEES (THE "CITY PARTIES ") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMIAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL REASONABLEEXPENSES OF LITIGATION, COURT COSTS AND REASONABLEATTOR1NEY'S FEES, FOR ANY INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO ANY PROPERTY INCURRED IN CONNECTION WITH ALL CLAIMS, INCLUDING ANY ACTION OR PROCEEDINGS BROUGHT, THEREON ARISING FROM, AS A RESULT OF, OR IN ANY WAY RELATED TO OWNER'S AND ITS SUBTENANTS', OFFICERS', AGENTS', EMPLOYEES', CONTRACTORS', GUESTS', AND /OR INVITEES' (THE "OWNER PARTIES ") USE OR OCCUPANCY OF THE PREMISES AND /OR PREMISES LNIPROVEMIENTS OCCURRING OR EVENTS ARISING PRIOR TO EXPIRATION OR TERMINATION OF THIS AGREEMENT OR ANY OF THE ACTIVITIES OF ANY SUCH OWNER PARTIES IN OR ON THE PREMIISES, OR THE DESIGN OR CONSTRUCTION OF THE PREMISES IMPROVEMENTS, OCCURING OR EVENTS ARISING PRIOR TO THE EXPIRATION OR TERMINATION OF THIS AGREEMENT WHERE SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY PARTIES AND ANY OTHER PERSON OR ENTITY OR THE JOINT AND /OR SOLE NEGLIGENCE OF THE OWNER PARTIES. IT IS THE EXPRESS INTENTION OF BOTH CITY AND OWNER THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY OWNER TO INDEMNIFY, HOLD HARNH.,ESS, PROTECT, AND DEFEND TIIE CITY PARTIES FROM (I) THE CITY PARTIES' JOINT NEGLIGENCE AND /OR (II) THE OWNER PARTIES' SOLE OR CONCURRENT NEGLIGENCE. THE INDEMINITY CONTAINED IN THIS PARAGRAPH SHALL APPLY TO ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR LIABILITIES REGARDLESS OF THE JOINT NEGLIGENCE OF THE CITY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, OWNER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. Notwithstanding anything to the contrary contained in this Agreement, the indemnity provided in this section shall not terminate upon the termination or expiration of this Agreement, but shall continue in full force and effect. 2.07 Waiver. In consideration of the opportunity to repair the Structures, the Owner hereby agrees to waive any and all rights of appeal arising out of or in connection with the demolition, construction, or reconstruction of the Structures. All decisions of the City, its officers and employees shall be final and binding upon Agreement for Repair, Page 4 Apik the Owner and all others claiming by and through the Owner; and there shall be no right of appeal any such decisions to a court of law or any other tribunal, council, board or commission. , . The decision to demolish the Structure shall be made in the sole discretion of the Chief Building Official and the Owner hereby waives any and all rights to further appeal this matter and matters related thereto. The waiver provided for in this paragraph shall not expire but shall survive the expiration or termination of this Agreement. 3. City's Commitment. The City hereby agrees to stay the demolition order provided that each of the terms of the Agreement are timely satisfied, including, but not limited to, the timely completion of each of the events described in Exhibit "B." If this contract is fully and timely performed by the Owner, upon the issuance of the certificate of occupancy, the City Manager shall quash the demolition order of the Board. On the other hand, if the Owner fails to meet any of the deadlines referenced in Exhibit `B" hereof or otherwise fails to comply with the terms of this Agreement, as determined by the Chief Building Official, the City shall provide notice of such failure as required herein. The Owner shall have fifteen (15) days in which to remedy and cure the deficiencies as determined by Chief Building Official. In the event Owner fails to remedy or cure the deficiencies, the demolition order of the Board shall no longer be stayed and the City shall demolish the Structure without further notice to the Owner. Nothing herein shall prevent the City from granting extensions to remedy or cure such deficiencies. Nothing herein shall be construed to allow the City to demolish any building(s) that have been issued a certificate of occupancy after satisfactory rehabilitation pursuant to this Agreement. 4. Term. This Agreement shall become effective immediately upon the City Manager's execution this Agreement and shall remain in full force and effect until the Owner makes the required repairs or the City demolishes the building(s). 5. Termination. The City, besides all other rights or remedies it may have, may immediately terminate this Agreement for cause if, upon proper notice, Owner fails to cure any deficiency as provided above. A breach of this Agreement shall include, but not be limited to, the following: a. failing to pay any payments due the City under this Agreement; b. the institution of voluntary or involuntary bankruptcy proceeding against the Owner to the extent termination is allowed by law; and/or C. the violation of any provision of this Agreement. 6. Miscellaneous Provisions. 6.01 Assignment. The Owner agrees that it shall not assign this Agreement. Any purported assignment or attempted assignment shall result in this Agreement to be law void and no longer in effect: and in the demolition order to be no longer stayed as Agreement for Repair, Page 5 01k to any of the Structures which have not been issued a certificate of occupancy on the date of the purported or attempted assignment. The Owner shall secure a written agreement prior to closing any transaction involving the transfer of all or part of the premises on which the Structures are located, stating that upon such any transfer the demolition order shall no longer stayed and the Structures shall be demolished in accordance with this Agreement. The failure to secure such written statement, shall in no way affect the lifting of the stay. Alm 6.02. Notices. All notices required or permitted to be given hereunder may be given by letter sent via registered or certified mail, return receipt requested, or any other form of written communication to which Owner acknowledges receipt and shall be deemed to be duly served and given for all purposes: (a) To City when received at: City of Baytown Attn: City Manager P.O. Box 424 Baytown, Texas 77522 (b) To Owner when received at: Koltoniuk Development, LTD Attn: President 6500 East Pacific Coast Highway, Suite 140 Long Beach, CA 90803 as the case may be. Any party may change the address for the giving of notices to it by giving at least fifteen (15) days' written notice of the new address to the other parties, provided that the new address must be at a place in the United States where the mails or similar conununications are regularly received. Notice given by mail shall be deemed given three (3) days after the date of the mailing of the same to the above- referenced address. It shall be sufficient and be deemed proper notice if the Owner and/or his attorney as indicated above acknowledge receipt of any notice. If the attorney as stated above is not authorized to receive notices for Owner, said attorney shall notify the City within five (5) days. 6.03. Essence. Time is expressly declared to be of the essence in regard to this Agreement. 6.04 Entire Agreement. This Agreement, including the exhibits hereto, contains all the agreements between the parties with respect to the Property and Structure and may not be modified orally or in any other manner other than by an agreement in writing, signed by all parties. Agreement for Repair, Page 6 JVhI 6.05 Headings. The headings as to contents or particular articles or sections herein are inserted only for convenience, and they are in no way to be construed as a part of this Agreement or as a limitation on the scope of the particular sections to which they refer. AIMIk 6.06 Texas Law. The laws of the State of Texas shall govern the construction, interpretation and performance of this Agreement. 6.07 Venue. Both parties hereby irrevocably agree that any legal proceeding arising out of or in connection with this Agreement shall only be brought in the District Courts of Harris County, Texas, or in the United States District Court for the Southern District of Texas, Houston, Harris County, Division. 6.08 Consent. The City reserves all rights granted to it to deny consent to litigation as may be provided to it by Charter or state law. Nothing contained herein shall be construed so as to waive or limit the City's sovereign immunity. 6.09 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. 6.10 No Third Party Beneficiaries. This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit Owner and the City only. 6.11 Authority to Enter Contract. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. 6.12 Right to Inspect Property. The City has the right to inspect the Property at all reasonable times during the period of this Agreement to ensure compliance with the terms and conditions of this Agreement. Unless requested by Owner, its contractors, or agents, the City shall give Owner twenty-four (24) hours oral notice of the date and time the City intends to inspect in order that the Owner may have a representative present during the inspection. 6.13 Force Maie ure. Neither the City nor the Owner, shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations hereunder by reasons of strikes, boycotts, labor disputes, embargoes, shortage of material, acts of God. acts of public enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellion, sabotage, or any other circumstances for which it is not responsible or which is not in its control, and the time for performance shall be automatically extended by the period the party is prevented from performing its obligations hereunder. Agreement for Repair, Page 7 Aft 6.14 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. AW 6.15 Non - Waiver. Failure of the City to insist on the strict performance of any of the agreements contained herein or to exercise any rights or remedies accruing hereunder 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. 6.16 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 6.17 Multiple Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. 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 , 2006, the date of execution by the City Manager of the City of Baytown. ATTEST: LORRI COODY, City Clerk Agreement for Repair, Page 8 OWNER KOLTONIUK DEVELOPMENT, LTD DAVID KOLTENIUK, CITY OF BAYTOWN GARY JACKSON, City Manager r� APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney KIM L. LAWRENCE, P.C., Attorney for Koltoniuk Development, LTD STATE OF TEXAS § COUNTY OF HARRIS § Before me, , the undersigned notary public, on this day personally appeared DAVID KOLTONIUK, the of Koltoniuk Development, LTD, in its capacity 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 2006. Notary Public in and for the State of Texas RAKaren\Files\Legal\.SuitsW &K & Woodcreek\FormContract4Repairs2300TaftCircle .doc Agreement for Repair, Page 9 EXHIBIT "A" r TR 8K (016 *TR 17B PHASE II) (051 *TR 73A -2) ABST 118 W BRITTON, BAYTOWN, HARRIS COUNTY, TEXAS TR 8G (016 *TR 17B PHASE I) (051 *TR 73A -1) ABST 118 W BRITTON, BAYTOWN, HARRIS COUNTY, TEXAS 3 'Iti 1,6v Vpd% 1lb Ilk �Af got 4 #Iasi SON 6b law Ak IND tee -1 )F Avok EXHIBIT "B" Rehabilitation of Building(s) The Owner shall apply for and secure a building permit or other permits as may be required to rehabilitate two or more of the Structures within ten (10) days after the Owner closes on the Property and becomes the sole owner of the same, which shall be on or before October 16, 2006. In such application(s), the Owner shall satisfy all requirements, of the Code of Ordinances and other applicable laws and regulations pertinent to the issuance of said building permits or other permits as may be required. The Chief Building Official of the City of Baytown shall make such determination. The Chief Building Official shall not unreasonably withhold the issuance of the permits. 2. Within ninety (90) days following the issuance of the building permit or other permits as may be required, the Owner shall complete ( "complete" means substantial completion to the degree that the Owner is entitled to apply for final building inspection for the issuance of a certificate of occupancy) the rehabilitation of no fewer than two (2) buildings, in compliance with any and all building codes enacted by the City of Baytown, as uniformly applied by Baytown. Nothing shall herein require Owner to complete more than two building per each ninety (90) day period, even if building permits are issued to continence work on additional buildings. 3. In the event the Owner fails to meet the ninety (90) day completion date, the City shall have the right to exercise its right of demolition pursuant to the Agreement and/or terminate this Agreement. 4. The Owner shall continue to rehabilitate the remaining buildings in accordance with the requirements mandated herein. 5. There shall be no exceptions to the ninety (90) day deadline, except for extensions or periods for cure as stated herein or a force majeure event. 6. If the building fails a final inspection and the certificate of occupancy is not issued by Baytown, then the Owner shall be allowed one 15 -day cure period to correct any deficiencies that resulted in the failed inspection. Baytown shall not unreasonably withhold approval of the final inspection and issuance of the certificate of occupancy. The City may grant only one 15 -day cure period per building, except in such instances where the Chief Building Official, in his opinion, deems that additional extensions are necessary based upon circumstances then existing. If a building fails final inspection, the City must provide to Owner in writing, a list of the items that failed inspection and the reasons therefor. 7. The Owner shall submit an application for and secure building permit(s) or other permits as may be required for the rehabilitation of two or more additional J. building(s) in the Taft Circle Apartment complex on or before 4:00 pan. on the third (3`d) business day following the scheduled time for completion of the Exhibit "B,- Page 1 AW apartment buildings specified Paragraph (1) above. Any period of time that is required by the Chief Building Official to review the application shall not be counted toward the time limitations afforded the Owner under this Agreement. 8. The Owner shall complete the rehabilitation of two additional buildings on or before the ninetieth (90th) day following the issuance of the permits as specified in Paragraph 7 above. 9 Thereafter, the Owner shall follow this same process in completing all of the remaining buildings. 10. Upon completion of each apartment building in accordance with this Agreement, the Owner shall have the right to apply for a certificate of occupancy. Such certificate shall not be unreasonably withheld provided such apartment building complies with this agreement and such building can be occupied in a safe manner by tenants as determined by the Chief Building Official. 11. The Owner shall have the right to occupy one (1) apartment during the rehabilitation of the buildings. Such apartment shall be not used for habitation and shall be used only as an office facility during normal work hours. Such apartment must be rehabilitated in accordance with all building code provisions of the City of Baytown and shall be weatherproofed and watertight. 12. On or before September 28, 2006, the Owner agrees that it shall construct and/or repair all perimeter fencing around the entire property and obtain all necessary permits therefor. Such fencing shall meet the requirements of Chapter 18, Article XII, Division 2 of the Code of Ordinances, Baytown, Texas, as if all such fencing qualifies as buffer fencing and no exception is authorized 13. On or before October 2, 2006, the Owner perform such work as necessary so that the Property and the exterior of the Structures are in a clean, safe and sanitary condition and in conformance with the applicable codes of the City, including, but not limited to Chapter 42 of the Code of Ordinances, Baytown, Texas. 14. On or before October 20, 2006, the Owner agrees that it shall obtain electrical permits and provide security lighting for the premises. Such lighting must provide adequate lighting, as determined by the City's Chief Building Official, to deter unauthorized entry and criminal activity on the premises. 15. The Owner agrees that it shall obtain the necessary permits and shall rehabilitate Building Nos. 4, 5, and 8 first. 16. The Owner understands and agrees that it shall submit an asbestos survey of the entire complex on or before the date that it submits its first permit application in accordance with Section 1 hereof. Exhibit "B." Page 2 Aft 17. The Owner shall eliminate and properly dispose of all insect, rodent and vermin infestation on the Property and, in doing so, shall take all necessary precautions to ensure that such insects, rodents and vermin are not driven to adjacent properties. R: \Karen\Files\LegaI\Suits\A &K & WoodcreekTomiEXhibitB.doc Exhibit 'B; ' Page 3 !�-. MEMORANDUM OF THE STAY OF THE DEMOLITION ORDER STATE OF TEXAS § COUNTY OF HARRIS § This is the Memorandum referred to in Section 2.03 of that certain Agreement for Repairs ( "Agreement "), dated effective the day of , 2006, between the CITY OF BAYTOWN, TEXAS ( "City ") and Koltoniuk Development, LTD ( "Owner ") concerning the Premises described in Exhibit "A ", hereto attached and hereby made a part hereof. In consideration of Owner's commitment to repair the structures in full compliance with the Code of Ordinances of the City of Baytown, Texas and all other applicable laws, rules and regulations, the City of Baytown agreed to stay the demolition order of the Urban Rehabilitation Standards and Review Board; conditioned upon the Owner performing each aspect of the scope of work by certain dates expressed therein. Should Owner fail to satisfy or timely perform any condition in the Agreement, the Stay of the Demolition Order shall be lifted and the structures shall be demolished. This memorandum is not a complete summary of the Agreement. Provisions in this memorandum shall not be used in interpreting the Agreement provisions. In the event of conflict between this memorandum and other parts of the Agreement. the other parts shall control. Execution hereof constitutes execution of the Agreement itself. EXECUTED effective as of the _ day of Memorandum of the Stav of the Demolition Order, Page 1 , 2006. OWNER KOLTONIUK DEVELOPMENT, LTD DAVID KOLTONIUK, EMW C AmIk. CITY OF BAYTOWN GARY JACKSON, City Manager APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney STATE OF TEXAS § COUNTY OF HARRIS § Before me, , the undersigned notary public, on this day personally appeared GARY JACKSON, in his capacity as City Manager of the City of Baytown, 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 , 2006. 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 , of in its capacity 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 , 2006. Notary Public in and for the State of Texas dmk R:UCarenTiles\Legal\.Suits\AW &K & WoodcreektFormExhibitC.doc Memorandum of the Stay of the Demolition Order. Page 2 EXHIBIT "A" TR 8K (016 *TR 17B PHASE II) (05 1 *TR 73A -2) ABST 118 W BRITTON, BAYTOWN, HARRIS COUNTY. TEXAS TR 8G (016 *TR 17B PHASE 1) (051 *TR 73A -1) ABST 118 W BRITTON, BAYTOWN, HARRIS COUNTY, TEXAS A �t- Ll � T � � 'tea, � • Z`,� �. y _ wa .�,�� -T,�: •1 � C t L�2 ' � �,� � /' 1 �/ I` rte..' � i�_ ,� 7y� ,. J h tv is CID y 1 i �- ,�• . 1 Z ti� � �� , � nt �`r S�L� -..' rye. 1' � f��r. *I ,•il�Y� /_ �.'�.�, _ - -- J -�_ ,� � �,.- �°- - -. - .�,' - '����ft � 0� 1 - -- '� i � w.Ml• _ _,.�'x- - -- -,t r ,.'� -.. L AGREEMENT FOR REPAIRS STATE OF TEXAS § COUNTY OF HARRIS § THIS AGREEMENT FOR REPAIRS is between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, (the "City") and Koltoniuk Development, LTD, the owner of the property located at 2300 Taft Circle, Baytown, Harris County, Texas (the"Owner"). WHEREAS, the Owner is under contract to purchase the property and all of the buildings and structures on the property located at 2300 Taft Circle, Baytown, Texas (the `Property" as shown in a plat of the premises marked as Exhibit"A" and being attached hereto and made a part hereof for all purposes); and WHEREAS, the Property was brought before the Urban Rehabilitation Standards Review Board(the"Board") on the 11th day of July,2005; and WHEREAS, at such meeting, the Board ordered ten (10) apartment buildings and a mechanical building located on the Property(the"Structures") demolished; and WHEREAS, the Owner desires to repair the Structures in strict compliance with the terms herein; and WHEREAS, the City Council is willing to stay the demolition order based upon the terms and conditions herein; NOW THEREFORE, for and in consideration of the foregoing premises and the mutual covenants and agreements herein contained, the parties hereto do hereby mutually agree as follows: 1. Owner's Representations. 1.01 Own Property. Owner hereby represents that it has entered into a valid and binding contract to purchase the Property and shall be the record owner of the Property, which includes all of the structures that are the subject hereof, on or before October 16, 2006, and that no other person or entity will have an ownership interest in the same after such date. Should the Owner fail to close on the Property on or before October 16, 2006, and provide evidence of ownership of the Property by such date, the demolition order of the Board shall no longer be stayed and the City may terminate this Agreement without further notice and demolish the Structures. The provisions of Sections 3 and 6.02 regarding notice and an opportunity to cure shall not apply to a termination according to this Section 1.01. Agreement for Repair,Page 1 1.02 Ability to Enter Agreement. As of the effective date of this Agreement, the Owner has the power and the authority necessary to enter into and perform under this Agreement. 1.03 Need for Repair. Owner acknowledges that all Structures including, but not limited to, the ten (10) apartment buildings and one (1) mechanical building located at 2300 Taft Circle, Baytown, Harris County, Texas, and collectively known as the Taft Circle Apartments., constitute a danger to the public, whether or not such Structures are secured from entry, and are dilapidated, substandard, unfit for human habitation, in need of repair and a hazard to the public health, safety, and welfare of the citizens of Baytown, if not repaired in accordance with this Agreement. 2. Owner's Commitments. 2.01 Commitment to Repair. The Owner hereby agrees to repair the Structures in conformance with all applicable laws, rules and regulations of the City and any other governmental entity so that, upon approval by the Chief Building Official of the City, the Structure fully satisfies the Codes of the City of Baytown, Texas, including, but not limited to, the Code of Ordinances, Baytown, Texas; the National Electrical Code; the International Plumbing Code; the International Mechanical Code; International Fire Code and the International Building Code, as adopted by the City of Baytown, Texas (collectively, the "Codes") in accordance with the scope of work, detailing the events and times of completion of each event, which are attached hereto as Exhibit "B" and incorporated herein for all intents and purposes. It is understood and agreed that grandfathering provisions may apply to some of the repairs to be performed by the Owner, and to the extent that those provisions apply, the repairs must only come up to the standards applicable at the time of the original construction. Compliance with the Codes shall include, but not be limited to, obtaining an asbestos survey, abating the asbestos, if any, to the extent required by law, providing sealed construction drawings; employing licensed professionals for those repairs required to be made by a licensed professional pursuant to the Codes; providing a structural investigation with recommendations provided by a licensed professional engineer in the state; obtaining or causing to be obtained all required permits pursuant to the Codes; obtaining and satisfying all required inspections; and obtaining a certificate of occupancy for the Structure . 2.02 Cash Bond Required. Within three (3) business days after closing, the Owner shall provide a cash bond in the amount of ONE HUNDRED TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($125,000.00) to the City, the purpose of which is to ensure payment of the expenses associated with demolition of the Structure should Owner fail to fully perform all obligations expressed herein in accordance with the terms and conditions of this Agreement. The funds will be maintained in an interest-bearing account and will earn interest at the City's Texas Local Government Investment Pool ("TxPOOL") rate. In the event the City, determines that any work is not complete in accordance with all applicable Agreement for Repair,Page 2 building or construction codes in a timely manner as required herein or if the Owner breaches any other provision of this Agreement, the City shall demolish the Structures and deduct all costs associated in any way with the asbestos abatement and demolition from the cash bond amount upon fifteen (15) days notice as provided in this Agreement to the Owner. Within 30 days of the issuance of a certificate of occupancy for all buildings or within 30 days after completion of the demolition, the City shall refund any balance of the cash bond to Owner including interest earnings thereon. Should the costs to abate the asbestos together with the demolition of the Structures exceed the amount of the cash bond, the City shall have the right to pursue all legal remedies as provided by law. This section shall survive termination of this Agreement and if this Agreement is terminated, the Owner agrees that, upon termination, the Owner forfeits and relinquishes any and all rights to the bond. Should the Owner fail to timely provide the cash bond in accordance with this Section, the demolition order of the Board shall no longer be stayed and the City may terminate this Agreement without further notice and demolish the Structures. The provisions of Sections 3 and 6.02 regarding notice and an opportunity to cure shall not apply to a termination according to this Section 2.02. 2.03 Memorandum of the Stay of Demolition Order. The Owner shall also execute, contemporaneously with the execution of this Agreement, a Memorandum of the Stay of the Demolition Order, the form of which is attached as Exhibit "C," to be recorded as a short form of this Agreement as a public record in the appropriate jurisdiction in which the Property is located, and to be held in the possession of the City. The Owner shall reimburse the City with all expenses of recordation of such Memorandum within 30 days from the date of an invoice therefor. 2.04 Multifamily License. The Owner shall make an application for a multi-family license once all Structures are rehabilitated in accordance with the City of Baytown Code of Ordinances. 2.05 Release. The Owner assumes full responsibility for the work to be performed and the condition of the Structures. The Owner releases, relinquishes, and discharges the City, its officers, agents and employees from all claims, demands and causes of action of every kind and character for any loss, injury or damage caused by the Owner, its officers, agents, employees, servants, representatives, contractors and subcontractors to the parties or of third persons related to, arising out of, or connected with the work to be performed under the Demolition Order of the Board and this Agreement The release provided for in this paragraph shall not expire but shall survive the expiration or termination of this Agreement. 2.06 Indemnity. THE OWNER HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, PROTECT AND DEFEND CITY, ITS OFFICERS, Agreement for Repair,Page 3 AGENTS, AND EMPLOYEES (THE "CITY PARTIES") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL REASONABLEEXPENSES OF LITIGATION, COURT COSTS AND REASONABLEATTORNEY'S FEES, FOR ANY INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO ANY PROPERTY INCURRED IN CONNECTION WITH ALL CLAIMS, INCLUDING ANY ACTION OR PROCEEDINGS BROUGHT, THEREON ARISING FROM, AS A RESULT OF, OR IN ANY WAY RELATED TO OWNER'S AND ITS SUBTENANTS', OFFICERS', AGENTS', EMPLOYEES', CONTRACTORS', GUESTS', AND/OR INVITEES' (THE "OWNER PARTIES") USE OR OCCUPANCY OF THE PREMISES AND/OR PREMISES IMPROVEMENTS OCCURRING OR EVENTS ARISING PRIOR TO EXPIRATION OR TERMINATION OF THIS AGREEMENT OR ANY OF THE ACTIVITIES OF ANY SUCH OWNER PARTIES IN OR ON THE PREMISES, OR THE DESIGN OR CONSTRUCTION OF THE PREMISES IMPROVEMENTS, OCCURING OR EVENTS ARISING PRIOR TO THE EXPIRATION OR TERIVIINATION OF THIS AGREEMENT WHERE SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY PARTIES AND ANY OTHER PERSON OR ENTITY OR THE JOINT AND/OR SOLE NEGLIGENCE OF THE OWNER PARTIES. IT IS THE EXPRESS INTENTION OF BOTH CITY AND OWNER THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY OWNER TO INDEMNIFY, HOLD HARMLESS, PROTECT, AND DEFEND THE CITY PARTIES FROM (I) THE CITY PARTIES' JOINT NEGLIGENCE AND/OR (II) THE OWNER PARTIES' SOLE OR CONCURRENT NEGLIGENCE. THE INDEMNITY CONTAINED IN THIS PARAGRAPH SHALL APPLY TO ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR LIABILITIES REGARDLESS OF THE JOINT NEGLIGENCE OF THE CITY . IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, OWNER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. Notwithstanding anything to the contrary contained in this Agreement, the indemnity provided in this section shall not terminate upon the termination or expiration of this Agreement,but shall continue in full force and effect. 2.07 Waiver. In consideration of the opportunity to repair the Structures, the Owner hereby agrees to waive any and all rights of appeal arising out of or in connection with the demolition, construction, or reconstruction of the Structures. All decisions of the City, its officers and employees shall be final and binding upon Agreement for Repair,Page 4 to any of the Structures which have not been issued a certificate of occupancy on the date of the purported or attempted assignment. The Owner shall secure a written agreement prior to closing any transaction involving the transfer of all or part of the premises on which the Structures are located, stating that upon such any transfer the demolition order shall no longer stayed and the Structures shall be demolished in accordance with this Agreement. The failure to secure such written statement, shall in no way affect the lifting of the stay. 6.02. Notices. All notices required or permitted to be given hereunder may be given by letter sent via registered or certified mail, return receipt requested, or any other form of written communication to which Owner acknowledges receipt and shall be deemed to be duly served and given for all purposes: (a)To City when received at: City of Baytown Attn: City Manager P.O. Box 424 Baytown, Texas 77522 (b) To Owner when received at: Koltoniuk Development, LTD Attn: President 6500 East Pacific Coast Highway, Suite 140 Long Beach, CA 90803 as the case may be. Any party may change the address for the giving of notices to it by giving at least fifteen (15) days' written notice of the new address to the other parties,provided that the new address must be at a place in the United States where the mails or similar communications are regularly received. Notice given by mail shall be deemed given three (3) days after the date of the mailing of the same to the above-referenced address. It shall be sufficient and be deemed proper notice if the Owner and/or his attorney as indicated above acknowledge receipt of any notice. If the attorney as stated above is not authorized to receive notices for Owner, said attorney shall notify the City within five(5) days. 6.03. Essence. Time is expressly declared to be of the essence in regard to this Agreement. 6.04 Entire Agreement. This Agreement, including the exhibits hereto, contains all the agreements between the parties with respect to the Property and Structure and may not be modified orally or in any other manner other than by an agreement in writing, signed by all parties. Agreement for Repair,Page 6 the Owner and all others claiming by and through the Owner; and there shall be no right of appeal any such decisions to a court of law or any other tribunal, council, board or commission. , . The decision to demolish the Structure shall be made in the sole discretion of the Chief Building Official and the Owner hereby waives any and all rights to further appeal this matter and matters related thereto. The waiver provided for in this paragraph shall not expire but shall survive the expiration or termination of this Agreement. 3. City's Commitment. The City hereby agrees to stay the demolition order provided that each of the terms of the Agreement are timely satisfied, including, but not limited to, the timely completion of each of the events described in Exhibit"B." If this contract is fully and timely performed by the Owner, upon the issuance of the certificate of occupancy, the City Manager shall quash the demolition order of the Board. On the other hand, if the Owner fails to meet any of the deadlines referenced in Exhibit `B" hereof or otherwise fails to comply with the terms of this Agreement, as determined by the Chief Building Official, the City shall provide notice of such failure as required herein. The Owner shall have fifteen (15) days in which to remedy and cure the deficiencies as determined by Chief Building Official. In the event Owner fails to remedy or cure the deficiencies, the demolition order of the Board shall no longer be stayed and the City shall demolish the Structure without further notice to the Owner. Nothing herein shall prevent the City from granting extensions to remedy or cure such deficiencies. Nothing herein shall be construed to allow the City to demolish any building(s) that have been issued a certificate of occupancy after satisfactory rehabilitation pursuant to this Agreement. 4. Term. This Agreement shall become effective immediately upon the City Manager's execution this Agreement and shall remain in full force and effect until the Owner makes the required repairs or the City demolishes the building(s). 5. Termination. The City, besides all other rights or remedies it may have, may immediately terminate this Agreement for cause if, upon proper notice, Owner fails to cure any deficiency as provided above. A breach of this Agreement shall include, but not be limited to,the following: a. failing to pay any payments due the City under this Agreement; b. the institution of voluntary or involuntary bankruptcy proceeding against the Owner to the extent termination is allowed by law; and/or c. the violation of any provision of this Agreement. 6. Miscellaneous Provisions. 6.01 Assignment. The Owner agrees that it shall not assign this Agreement. Any purported assignment or attempted assignment shall result in this Agreement to be void and no longer in effect; and in the demolition order to be no longer stayed as Agreement for Repair,Page 5 6.05 Headings. The headings as to contents or particular articles or sections herein are inserted only for convenience, and they are in no way to be construed as a part of this Agreement or as a limitation on the scope of the particular sections to which they refer. 6.06 Texas Law. The laws of the State of Texas shall govern the construction, interpretation and performance of this Agreement. 6.07 Venue. Both parties hereby irrevocably agree that any legal proceeding arising out of or in connection with this Agreement shall only be brought in the District Courts of Harris County, Texas, or in the United States District Court for the Southern District of Texas, Houston,Harris County, Division. 6.08 Consent. The City reserves all rights granted to it to deny consent to litigation as may be provided to it by Charter or state law. Nothing contained herein shall be construed so as to waive or limit the City's sovereign immunity. 6.09 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. 6.10 No Third Party Beneficiaries. This Agreement shall not bestow any rights upon any third party,but rather, shall bind and benefit Owner and the City only. 6.11 Authority to Enter Contract. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. 6.12 Right to Inspect Property. The City has the right to inspect the Property at all reasonable times during the period of this Agreement to ensure compliance with the terms and conditions of this Agreement. Unless requested by Owner, its contractors, or agents, the City shall give Owner twenty-four (24) hours oral notice of the date and time the City intends to inspect in order that the Owner may have a representative present during the inspection. 6.13 Force Majeure. Neither the City nor the Owner, shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations hereunder by reasons of strikes, boycotts, labor disputes, embargoes, shortage of material, acts of God, acts of public enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellion, sabotage, or any other circumstances for which it is not responsible or which is not in its control, and the time for performance shall be automatically extended by the period the party is prevented from performing its obligations hereunder. Agreement for Repair, Page 7 6.14 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 6.15 Non-Waiver. Failure of the City to insist on the strict performance of any of the agreements contained herein or to exercise any rights or remedies accruing hereunder 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. 6.16 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 6.17 Multiple Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be dee ed to be an o ' inal but all of which shall constitute but one and the same Agreement on the In day of • , 2006, the date of execution by the City Manager of the City of Baytown. OWNER KOLTONIUK DE LOPM I , LTD ID K• TON", Prey nt CITY OF BA ' OWN GARY JAC , •N, City Manager T: Vitt LO'+ —O To D , City Clerk Agreement for Repair, Page 8 APPROVED AS TO FORM: G ACIO RAMIREZ, S ity Attorney STATE OF TEXAS § COUNTY OF HARRIS § Before me, YSM'en Horner , the undersigned notary public, on this day personally appeared DAVID KOLTONIUK, the President of Koltoniuk Development, LTD, in its capacity 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 I4-1th day of cp-iernhe1 2006. • I111j,Qyj�yJjjr ��../J/////I/JIl KAREN L.HORNER I otary Public in and for the State of , -/ Notary Public,State of Texas Texas Commission Expires May R:\Karen\Files\Legal\Suits\A&K&Woodcreek\FormContract4Repairs2300TaftCircle.doc Agreement for Repair,Page 9 1 EXHIBIT "A" TR 8K (016*TR 17B PHASE II) (051*TR 73A-2) ABST 118 W BRITTON, BAYTOWN, • HARRIS COUNTY, TEXAS TR 8G (016*TR 17B PHASE I) (051*TR 73A-1) ABST 118 W BRITTON, BAYTOWN., HARRIS COUNTY, TEXAS • EXHIBIT"B" Rehabilitation of Building(s) 1. The Owner shall apply for and secure a building permit or other permits as may be required to rehabilitate two or more of the Structures within ten (10) days after the Owner closes on the Property and becomes the sole owner of the same, which shall be on or before October 16, 2006. In such application(s), the Owner shall satisfy all requirements, of the Code of Ordinances and other applicable laws and regulations pertinent to the issuance of said building permits or other permits as may be required. The Chief Building Official of the City of Baytown shall make such determination. The Chief Building Official shall not unreasonably withhold the issuance of the permits. 2. Within ninety (90) days following the issuance of the building permit or other permits as may be required, the Owner shall complete ("complete" means substantial completion to the degree that the Owner is entitled to apply for final building inspection for the issuance of a certificate of occupancy) the rehabilitation of no fewer than two (2) buildings, in compliance with any and all building codes enacted by the City of Baytown, as uniformly applied by Baytown. Nothing shall herein require Owner to complete more than two building per each ninety (90) day period, even if building permits are issued to commence work on additional buildings. 3. In the event the Owner fails to meet the ninety (90) day completion date, the City shall have the right to exercise its right of demolition pursuant to the Agreement and/or terminate this Agreement. 4. The Owner shall continue to rehabilitate the remaining buildings in accordance with the requirements mandated herein. 5. There shall be no exceptions to the ninety(90) day deadline, except for extensions or periods for cure as stated herein or a force majeure event. 6. If the building fails a final inspection and the certificate of occupancy is not issued by Baytown, then the Owner shall be allowed one 15-day cure period to correct any deficiencies that resulted in the failed inspection. Baytown shall not unreasonably withhold approval of the final inspection and issuance of the certificate of occupancy. The City may grant only one 15-day cure period per building, except in such instances where the Chief Building Official, in his opinion, deems that additional extensions are necessary based upon circumstances then existing. If a building fails final inspection, the City must provide to Owner in writing, a list of the items that failed inspection and the reasons therefor. 7. The Owner shall submit an application for and secure building permit(s) or other permits as may be required for the rehabilitation of two or more additional building(s) in the Taft Circle Apartment complex on or before 4:00 p.m. on the third (3`') business day following the scheduled time for completion of the Exhibit`13,"Page 1 apartment buildings specified Paragraph (1) above. Any period of time that is required by the Chief Building Official to review the application shall not be counted toward the time limitations afforded the Owner under this Agreement. 8. The Owner shall complete the rehabilitation of two additional buildings on or before the ninetieth (90th) day following the issuance of the permits as specified in Paragraph 7 above. 9 Thereafter, the Owner shall follow this same process in completing all of the remaining buildings. 10. Upon completion of each apartment building in accordance with this Agreement, the Owner shall have the right to apply for a certificate of occupancy. Such certificate shall not be unreasonably withheld provided such apartment building complies with this agreement and such building can be occupied in a safe manner by tenants as determined by the Chief Building Official. 11. The Owner shall have the right to occupy one (1) apartment during the rehabilitation of the buildings. Such apartment shall be not used for habitation and shall be used only as an office facility during normal work hours. Such apartment must be rehabilitated in accordance with all building code provisions of the City of Baytown and shall be weatherproofed and watertight. 12. On or before September 28, 2006, the Owner agrees that it shall construct and/or repair all perimeter fencing around the entire property and obtain all necessary permits therefor. Such fencing shall meet the requirements of Chapter 18, Article XII, Division 2 of the Code of Ordinances, Baytown, Texas, as if all such fencing qualifies as buffer fencing and no exception is authorized 13. On or before October 2, 2006, the Owner perform such work as necessary so that the Property and the exterior of the Structures are in a clean, safe and sanitary condition and in conformance with the applicable codes of the City, including,but not limited to Chapter 42 of the Code of Ordinances, Baytown, Texas. 14. On or before October 20, 2006, the Owner agrees that it shall obtain electrical permits and provide security lighting for the premises. Such lighting must provide adequate lighting, as determined by the City's Chief Building Official, to deter unauthorized entry and criminal activity on the premises. 15. The Owner agrees that it shall obtain the necessary permits and shall rehabilitate Building Nos. 4, 5,and 8 first. 16. The Owner understands and agrees that it shall submit an asbestos survey of the entire complex on or before the date that it submits its first permit application in accordance with Section 1 hereof. Exhibit`B,"Page 2 17. The Owner shall eliminate and properly dispose of all insect, rodent and vermin infestation on the Property and, in doing so, shall take all necessary precautions to ensure that such insects, rodents and vermin are not driven to adjacent properties. R:\Karen\Files\Legal\Suits\A&K&Woodcreek\FormExhibitB.doc ,> Exhibit"B, Page 3 Exhibit"C" MEMORANDUM OF THE STAY OF THE DEMOLITION ORDER STATE OF TEXAS § COUNTY OF HARRIS § This is the Memorandum referred to in Section 2.03 of that certain Agreement for Repairs ("Agreement"), dated effective the day of , 2006, between the CITY OF BAYTOWN, TEXAS ("City") and Koltoniuk Development, LTD ("Owner") concerning the Premises described in Exhibit "A", hereto attached and hereby made a part hereof. In consideration of Owner's commitment to repair the structures in full compliance with the Code of Ordinances of the City of Baytown, Texas and all other applicable laws, rules and regulations, the City of Baytown agreed to stay the demolition order of the Urban Rehabilitation Standards and Review Board; conditioned upon the Owner performing each aspect of the scope of work by certain dates expressed therein. Should Owner fail to satisfy or timely perform any condition in the Agreement, the Stay of the Demolition Order shall be lifted and the structures shall be demolished. This memorandum is not a complete summary of the Agreement. Provisions in this memorandum shall not be used in interpreting the Agreement provisions. In the event of conflict between this memorandum and other parts of the Agreement, the other parts shall control. Execution hereof constitutes execution of the Agreement itself. EXECUTED effective as of the day of , 2006. OWNER 9 LTONIUK DEVELOPMENT, LTD VID KO T i T, , Memorandum of the Stay of the Demolition Order,Page 1 CITY OF BAYTOWN GARY JACKSON, City Manager APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney STATE OF TEXAS § COUNTY OF HARRIS § Before me, , the undersigned notary public, on this day personally appeared GARY JACKSON, in his capacity as City Manager of the City of Baytown, 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 , 2006. Notary Public in and for the State of Texas STATE OF TEXAS § COUNTY OF HARRIS § Before me, Kafen No(ner , the undersigned notary public, on this day personally appeared DAVID KOLTONIUK, President of KOLTONIUK DEVELOPMENT, LTD, in its capacity 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. +n CC i SUBSCRIBED AND SWORN before me this I II day of ^jepem be , 2006. KAREN L.HORNER 4Z(v tia3C) fk . Notary Public,State of Texas o ary Public in and for the State of , .0- Commission Expires May 9,2010 Texas R:\Karen\Files\Legal\Suits\A&K&Woodcreek\FormExhibitC.doc Memorandum of the Stay of the Demolition Order,Page 2 MEMORANDUM OF THE STAY OF THE DEMOLITION ORDER STATE OF TEXAS § COUNTY OF HARRI S § This is the Memorandum referred to in Section 2.03 of that certain Agreement for Repairs ("'Agreement"), dated effective the 18th day of September , 2006. between the CITY OF BAYTOWN, TEXAS ("City") and Koltoniuk Development, LTD ("Owner') concerning the Premises described in Exhibit ``A hereto attached and hereby made a part hereof. In consideration of Owner's commitment to repair the structures in frill compliance with the Code of Ordinances of the City of Baytown, Texas and all other applicable laws, rules and regulations, the City of Baytown agreed to stay the demolition order of the Urban Rehabilitation Standards and Review Board; conditioned upon the Owner performing each aspect of the scope of work by certain dates expressed therein. Should Owner fail to satisfy or timely perform any condition in the Agreement. the Stay of the Demolition Order shall be lifted and the structures shall be demolished. This memorandum is not a complete summary of the Agreement. Provisions in this memorandum shall not be used in interpreting the Agreement provisions. In the event of conflict between this memorandum and other parts of the Agreement, the other parts shall control. Execution hereof constitutes execution of the Agreement itself. EXECUTED effective as of the 1 1-dav of September , 2006. OWNER KOLTONIUK DEVELOPMENT, LTD V O re t Memorandum of the Stay of the Demolition Order,Page I CITY OF BA.TOWN GARY JA. SON. City Mani ,•' `'=; ; APPROVED AS TO FORM: . i f• i xw s qM!"ACIORAMIREZ, SR.,, 1 y,attorney STATE OF TEXAS COUN "Y OF HARRIS Before me, Sy via Ann uila�- , the undersigned notary -public, on this day personally appeared GARY JA.CKSON, in his capacity as City Manager of the City of Baytown, known to nee to be the person whose name is subscribed to the foregoing insti-.iment, and , r f/Jedged to nee that he executed the same for the purposes and consideration therein tE D A�D SWORN before �. l i�t daf aem .Q . • • ' 1O ` , `••....♦•' • r �lti.� ai Pu e�.i al fo i• S Ute of 4 �0 rr#�rt►r�ttttttttt��i�NNO Texas STATE OF TEXAS COUN"I"Y OF H.ARRI*S § Before nee, t •k 1) Hc'--f I")t(- C = the undersigned notary public, on this day personally appeared DAVII) .OLTONfU'K, president of I OLTO IUK DEVELOPMENT. LTD, in its capacity as Owner of the Property, known to one to be the person whose name is subscribed to the foregoing instrument and acknowledged to ine that he executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before one this day of ��-. ����1�� �.�.. ?00 . KAREN L.F ORN R f ,( , * Notary Public,State of Texas . '� Gm[ i3nX#1�' May 9, U ary PubIIC .n and for the Mate of z r�r Texas R:Karen"l'il's.l,.ci�ialtSuits"A&K&Woodcreek\FormExhibitC.dnc Nlemoranduni of the Stan of the Derr.g ition Carder,Page 2 EXHIBIT "A" TR 8K (016*TR 17B PHASE II) (051*TR 73A-2) ABST 118 W BRITTON, BAYTOWN, HARRIS COUNTY, TEXAS TR 8G (016*TR 17B PHASE I) (051*TR 73A-1) ABST 118 W BRITTON, BAYTOWN, HARRIS COUNTY, TEXAS Exhibit"A" ---41:..lilli Ileit7111i ••.7'. 11.Pr ..,..,"', �,p. . ! 3' 1 \ ,, z, t a y F .,.4.4,,,.:,,. _ „,, .._... - :* ,4, , t.4.steer 4#14 .4% i' ' ,. i. 4 ti ,-• . , - - .---mkr-7--- "*--/-T---7-----/ ••4 I ,4* 40011 .' t e ++� ;11 fi s Lti"°1111egic'''Ir . ' j A , 1 ....c.,:. , (0'A... ... : ''' ..':.-i 't..:14 ' Y''. :.ff':' , Arriiii. • t 4 `r.- j" A, .N4,444.' , ' . kit A , ,, ,, , „ $,.,. .t • .�. « , . 1 , d �` a, I 44 .... i 4,447 ,-. ;.;, .S. . ' di \ ' , - -a t ..- ,.:,-. \ ; .. . \ . ._ . t #y ''' \__.. __—---- .7.d. ., _ ♦- , E J I!f