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Ordinance No. 10,943ORDINANCE NO. 10,943 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE PURCHASE OF PROPERTY LOCATED AT 4451 SJOLANDER ROAD, BAYTOWN, HARRIS COUNTY, TEXAS, AND MORE PARTICULARLY DESCRIBED AS TR 15, ABST 591 D MCFADDEN, BAYTOWN, HARRIS COUNTY, TEXAS, FROM LAVERNE HESTER DUNMAN; DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN EARNEST MONEY CONTRACT FOR SUCH PURCHASE; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, authorizes the purchase of property located at 4451 Sjolander Road, Baytown, Harris County, Texas, and more paiticularly described as TR 15, ABST 591 D McFadden, Baytown, Harris County, Texas, from Laverne Hester Dunman. Section 2: That the City Council directs the City Manager and the City Clerk of the City of Baytown to execute and attest to the Earnest Money Contract, which is attached hereto as Exhibit "A," and incorporated herein for all intents and purposes, with Laverne Hester Dunman. 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 v$e of the City Council of the City of Baytown this the 12lh day of August, 2008. ATTEST: KAYTtllE DARNELL, City Clerk APPROVED AS TO FORM: STEPHEN H. DONCARLOS, Mayor RAMIREZ, SR., Qitt Attorney V6Bobsrvl\Legal\Karen\Files\City Council\OrdinancE»\2008\A«gusi l2\EamesiMoneyConlract4451Sjolander.doc EARNEST MONEY CONTRACT STATE OF TEXAS § § COUNTY OF HARRIS § This Earnest Money Contract is made and entered into this^/day of 2008, by and between the CITY OF BAYTOWN, a municipal corporation looted iitflarris and Chambers Counties, Texas, hereinafter known as the "Buyer," and LAVERNE HESTER DUNMAN, hereinafter collectively 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 and the Buyer's obligations herein are expressly contingent upon (i) an appraisal acceptable to the Buyer evidencing the value of the Property meets or exceeds the sales price indicated in Article IV hereof, (ii) an inspection report satisfactory to the Buyer, (iii) environmental site assessments satisfactory to the Buyer, (iv) the City Council's approval of this Agreement. in. PROPERTY The property subject to this Agreement is located at 4451 Sjolander Road, Baytown, Harris County, Texas, and more particularly described as TR 15, ABST 591 D McFadden, Baytown, Harris County, Texas, hereinafter referred to as the "Property." IV. SALES PRICE FORTY-FlVt The sales price of the above-referenced property is FIFTY NINE THOUSAND NINE- HUNDRED AND NO/100 DOLLARS ($59,900,00), hereinafter "Sales Price," which sum shall be paid in full at closing on the Property. 45,oco.eo Earnest Money Contract. Page 1 V. EARNEST MONEY Buyer shall deposit ONI-THOUSAND AND NO/100 DOLLARS ($1,000.00) as earnest money with Chicago Title Insurance Company, as Escrow Agent, upon execution of this Agreement by both parlies. VI. TITLE POLICY AND SURVEY Seller shall obtain at Seller's sole cost and expense an Owner Policy of Title Insurance (the "Title Policy") issued by Chicago Title Insurance Company ("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 casements 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 lime, the time for delivery shall be automatically extended up to fifteen (15) days. Buyer shall have ten (10) 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 (I) 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^ defect or encumbrance to title shown on a survey plat obtained by- Buyer at the expense of-Swefr 'fiie survey shall be made by a Registered Professional Land Surveyor acceptable to the Title Company and the Buyer. The plat shall (a) identify the Properly by metes and bounds oc platted lot description: (b) show that the survey was made and staked on a Harnesl Money Contract. Pasje 2 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 Properly 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 Hood plain as shown on the current Federal Emergency Management Agency map; and (I) contain the surveyor's certificate that the survey as shown by the plat is true and correct. Utility casements 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 Dale, this Agreement shall terminate and the Earnest Money shall be refunded to Buyer, unless Buyer elects to waive the objections. VTI. CLOSING The closing of the sale shall be on or before the 30lh day of September, 2008, or within seven (7) days after objections to title, environmental assessment and/or survey have been cured, whichever date is later, such dale hereinafter referred to as "Closing Date." If either party fails to close this sale by the Closing Date herein specified, the non-defaulting party shall be entitled to exercise any remedies contained in Article XII hereof. At closing, Seller shall furnish tax statements or certificates showing no delinquent taxes are due and owing on the Property, and Seller shall lender 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. 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 assessments; tax statements or certificates; preparation of deed; Hamest Money Contract, Page 3 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, 2008; Title Insurance; 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. XIL DEFAULT If Buyer fails to comply with this Agreement. Buyer shall be in default, and Seller may (a) enforce specific performance, seek such other relief as may be provided by law, or both, or (b) terminate this Agreement and receive the Earnest Money as liquidated damages, thereby releasing both parties from this Agreement. If Seller is unable without fault to deliver the Commitment within the time allowed, Buyer may either terminate this Agreement and receive the Earnest Money as the sole remedy or extend the time for performance up to fifteen (15) days and the Closing Date shall be extended as necessary at the discretion of the Buyer. If Seller fails to comply with this Agreement for any other reason, Seller shall be in default and Buyer may either (a) enforce specific performance* seek such other relief as may be provided by law, or both, or (b) terminate this Agreement, receive the Earnest Money, and seek such other relief as may be provided by law, thereby releasing both parties to this Agreement. Earnest Money Contract. Page 4 xm. 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. XIV. 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. XV. SALE OF INTEREST The Seller may not sell or assign all or part interest in the Property to another parly or parties without the express prior 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. It is expressly understood and agreed that this provision shall only apply to the Property as defined in Article III. XVI. 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 5 SKLLKR Laverne Hester Dunman e/o Judy Hester 119 Glenmore Drive Pasadena. TX 77053-2239 IUJYI-R City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 XVII. 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. XVIII. USE The intended use of the Property by Buyer is for municipal purposes, which may include, but not be limited to, roadways and other appurtenances. 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 properly as herein proposed, the Agreement shall terminate and the Earnest Money shall be refunded to Buyer. Buyers failure lo give the notice within the required time shall constitute Buyer's acceptance of the Property. XIX. NON-WAIVER Failure of either parly 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. Barnest Money Contract. Page 6 XX. 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 nnd ihe 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. XXI. 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. XXII. 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. XXIII. 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. XXIV. AUTHORITY The persons executing this Agreement on behalf of the parties hereby represent that such persons have full authority to execute this Agreement and to bind the party he/she represents. Earnest Money Contract. Page 7 2008 XXV. EXPIRATION This Contract shall expire if not signed by the Seller on or before the 4th day of August, 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 24th day of July , 2008, the date of execution bv the Seller. r«r.-a v« — ASHWORTH fasHl Notatv Public'St8te «f Texas Z'JfTVtf v Comm'38ion Expires *Wkf April 12. 2009 SELLER: LA VERNE HESTER DUNMAN by and through her Attorney in Fact JUDY HESTER ATTEST: BUYER: CITY OF BAYTOWN. TEXAS GARRISON C. BRUMBACK, City Manager KAYTHIE DARNELL. Cilv Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR.. City Attorney Earnest Moncv Contract. Page 8 STATE OF TEXAS COUNTY OF HARRIS Before me, _Russell Ashworth t the undersigned notary public. , _ t the undersigned notary public. on this day personally appeared JUDY HESTER, attorney in fact for LAVERNE HESTER DUNMAN, the owner of the above-described Property, known lo me to be the person whose name is subscribed to the foregoing insimmem and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this2Atdav of July . 2008. RUSSELl A8HW0RTH Notary Public, State of Texas My Commission expires Apfll 12, 2009 Notary Public in and for the Slate of Texas Wcofasr\0\Lei«aJ\KarenVHtes\Coi«fi»ctiM fester IVop«ny\riarncsl\l(>a8yContnict.iJ«>c Barnes! Money Contract. Page 9