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Ordinance No. 11,092ORDINANCE NO. 11,092 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE PURCHASE OF PROPERTY LOCATED AT 1450 & 1600 LAKEWOOD VILLAGE, 104 BURNET AND 0 MEADOR LANE, BAYTOWN, TEXAS, TOGETHER WITH THE ADJACENT PARKING LOT FROM THE BAYTOWN LITTLE THEATER, INCORPORATED, IN THE EXCHANGE FOR THE CONVEYANCE OF THE PROPERTY LOCATED ON N. MAIN STREET. BAYTOWN, TEXAS; 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 subject to the terms and conditions of the Earnest Money Contract authorized in Section 2 hereof, the City Council of the City of Baytown. Texas. authorizes the purchase of property located at 1450 & 1600 Lakewood Village, 104 Burnet and 0 Meador Lane, Baytown, Texas, together with the adjacent parking lot from The Baytown Little Theater. Incorporated, in the exchange for the conveyance of the property located on N. Main Street. Baytown, Texas. 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 The Baytown Little Theater, Incorporated. Section 3: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 26th day of March, 2009. DON CAPETILLO, Mayor Pro Tern A EST: <�pSTO{q,�� t KA E DARNELL, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR.. Ci - ttorney \kobsry 1 \1ega1\haren\Fites \City CouncihOrdin y s\2009Warch 26\ EamesthtoncyContract cvitht3LT.doc 7,:1. EARNEST MONEY CONTRACT STATE OF TEXAS § COUNTY OF HARRIS § _'his Earnest Money Contract is made and entered into this � day of /71 Adcff' , 2009, by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, hereinafter known as the "Buyer," and THE BAYTOWN LITTLE THEATER INCORPORATED, a Texas non -profit corporation, hereinafter known as the "Seller." I. IN GENERAL Subject to Article H hereof, the Seller agrees to sell and convey to Buyer and Buyer agrees to buy from Seller the property described below as Property A and Property C. H. CONTINGENCY This agreement is expressly contingent upon the following: ➢ An environmental assessment of Property A acceptable to the Buyer, ➢ The Buyer's acquisition of Property B, ➢ An appraisal of Property B furnished and paid for by the Seller indicating that the fair market value is less than or equal to the fair market value of Property A, as such properties are identified in Articles III and IV, which appraisal is satisfactory to the Buyer, ➢ Compliance with Section 272.001 of the Texas Local Government Code, ➢ The Buyer's demolition of the structure located on a portion of Property B located at 2 N. Main and more particularly described as Lots 9 10 11 & 12 Block 60 (016 & 051 *Thomas Wright), Goose Creek, Baytown, Harris County, Texas, and The City Council's approval of this Agreement. Ill. PROPERTY The property subject to this Agreement is more particularly described in Exhibits "A" and "C," which are attached hereto and incorporated herein for all intents and purposes, hereinafter referred to as "Property A" and "Property C." Earnest Money Contract, Page 1 rv. SALES PRICE In and for consideration of Property A, Buyer agrees that it will convey the property more particularly described in Exhibit B, which is attached hereto and incorporated herein for all intents and purposes, hereinafter known as "Property B" (the "Sales Price "), which property has a fair market value of $130,000.00. At closing, Buyer shall tender a Deed without Warranty conveying Buyer's interest in Property B to the Seller and which deed shall contain a condition subsequent wherein Buyer shall have the right to reenter and assume ownership of Property B upon repayment of the Sales Price if Seller fails: to use or ceases to use Property B as a development project as defined in Section 377.001 of the Texas Local Government Code for a period of at least twenty (20) years from and after the date of conveyance, or 2. to complete construction of and to obtain a certificate of occupancy for the development project within five (5) years after the date of conveyance, or 3. to obtain Buyer's prior written consent of any subsequent conveyance or attempted conveyance of Property B prior to the expiration of the above - referenced twenty -year period. It is expressly understood and agreed that any such consent shall be conditioned upon Property B being used as a development project as defined in Section 377.001 of the Texas Local Government Code for the remainder of the twenty -year period. V. EARNEST MONEY No earnest money shall be required under this Agreement. This Agreement shall be deposited with Chicago Title Company, as Escrow Agent, upon execution of this Agreement by both parties. V[. TITLE POLICY AND SURVEY Seller shall obtain at Seller's expense for Property A an Owner Policy of Title Insurance (the "Title Policy ") issued by Chicago 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; Earnest Money Contract, Page 2 IV. SALES PRICE In and for consideration of Property A, Buyer agrees that it will convey the property more particularly described in Exhibit B, which is attached hereto and incorporated herein for all intents and purposes, hereinafter known as "Property B" (the "Sales Price "), which property has a fair market value of $130,000.00. At closing, Buyer shall tender a Deed without Warranty conveying Buyer's interest in Property B to the Seller and which deed shall contain a condition subsequent wherein Buyer shall have the right to reenter and assume ownership of Property B upon repayment of the Sales Price if Seller fails: 1. to use or ceases to use Property B as a development project as defined in Section 377.001 of the Texas Local Government Code for a period of at least twenty (20) years from and after the date of conveyance, or 2. to complete construction of and to obtain a certificate of occupancy for the development project within five (5) years after the date of conveyance, or 3. to obtain Buyer's prior written consent of any subsequent conveyance or attempted conveyance of Property B prior to the expiration of the above - referenced twenty-year period. It is expressly understood and agreed that any such consent shall be conditioned upon Property B being used as a development project as defined in Section 377.001 of the Texas Local Government Code for the remainder of the twenty-year period. V. EARNEST MONEY No earnest money shall be required under this Agreement. This Agreement shall be deposited with Chicago Title Company, as Escrow Agent, upon execution of this Agreement by both parties. VI. TITLE POLICY AND SURVEY Seller shall obtain at Seller's expense for Property A an Owner Policy of Title Insurance (the "Title Policy ") issued by Chicago 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; Eamest Money Contract, Page 2 (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 Seller'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 rime, 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 (1) through (7) listed above if Buyer determines that any such ordinance or item prohibits the proposed use of the Property as hereinafter described. Seller shall also obtain at Seller's expense an owner's policy for Property B, under all of the same terms and conditions set for above for property A to insure Seller. 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 Seller. The survey shall be made by a Registered Professional Land Surveyor acceptable to the Title Company and the Buyer. The plat shall (a) identify the Property by metes and bounds or platted lot description; (b) show that the survey was made and staked on the ground with the corners permanently marked; (c) set forth the dimensions and total area of the Property; (d) show the location of all improvements, highways, streets, roads, railroads, rivers, creeks or other waterways, fences, easements and rights -of -way on the Property with all easements and rights -of -way referenced to their recording information; (e) show any discrepancies or conflicts 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 may but shall not be obligated to cure the objection within twenty (20) days after the date Seller receives them and the Closing Date shall be extended as Earnest Money Contract, Page 3 necessary. If objections are not cured by the extended Closing Date, this Agreement shall terminate, unless Buyer elects to waive the objections. VII. CLOSING The closing of the sale shall be on or before the 29`h day of May, 2009, 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 furnish tax statements or certificates showing no delinquent taxes are due and owing on Property A, and Seller shall tender (i) a Warranty Deed to Property A 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, and (ii) a Deed without Warranty to Property C conveying all of its interest in Property C. VIII. POSSESSION The possession of each property shall be delivered to the respective party at closing. IX. SALES EXPENSES The following expenses shall be paid at or prior to closing: A. Buyer shall prepare the deeds required for the conveyance of Property A, Property B, and Property C; and other expenses stipulated to be paid by Buyer under other provisions of this Agreement. Buyer shall be responsible for any loan liability and release of liens for Property B. B. Seller shall be responsible for the expenses associated with the appraisal; environmental assessment; tax statements or certificates; escrow fee; releases of existing liens for Property A, including prepayment penalties and recording fees; release of Seller's loan liability for Property A; taxes assessed on Property A prior to January 1, 2009, and other expenses stipulated to be paid by Seller under other provisions of this Agreement. Earnest Money Contract, Page 4 necessary. If objections are not cured by the extended Closing Date, this Agreement shall terminate, unless Buyer elects to waive the objections. VII. CLOSING The closing of the sale shall be on or before the 29`s day of May, 2009, 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 furnish tax statements or certificates showing no delinquent taxes are due and owing on Property A, and Seller shall tender (i) a Warranty Deed to Property A 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, and (ii) a Deed without Warranty to Property C conveying all of its interest in Property C. VIII. POSSESSION The possession of each property shall be delivered to the respective party at closing. IX. SALES EXPENSES The following expenses shall be paid at or prior to closing: A. Buyer shall prepare the deeds required for the conveyance of Property A, Property B, and Property C; and other expenses stipulated to be paid by Buyer under other provisions of this Agreement. Buyer shall be responsible for any loan liability and release of liens for Property B. B. Seller shall be responsible for the expenses associated with the appraisal; environmental assessment; tax statements or certificates; escrow fee; releases of existing liens for Property A, including prepayment penalties and recording fees; release of Seller's loan liability for Property A; taxes assessed on Property A prior to January 1, 2009, and other expenses stipulated to be paid by Seller under other provisions of this Agreement. Earnest Money Contract, Page 4 X. PRORATIONS 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. M. 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. XH. DEFAULT If Buyer fails to comply with this Agreement, Buyer shall be in default, and Seller may (a) enforce specific performance, or (b) terminate this Agreement, 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 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 or (b) terminate this Agreement, thereby releasing both parries to this Agreement. XM. REPRESENTATIONS Seller represents to Buyer and Buyer represents to Seller that as of the Closing Date there will be no liens, assessments, or Uniform Commercial Code or other security interests against any of Property A or Property B 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. All representations contained in this Agreement shall survive the closing. Earnest Money Contract, Page 5 XIV. SALE OF INTEREST The Seller may not sell or assign all or part interest in Property A 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. Buyer may not sell or assign its rights hereunder without the prior consent of Seller. XV. NOTICES All notices required to be given hereunder shall be given in writing in person or by overnight, certified or registered mail, return receipt requested at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: SELLER The Baytown Little Theater, Incorporated P.O. Box 2022 Baytown, TX 77522 BUYER City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 XV7. FEDERAL TAX REQUIREMENTS If Seller is a "foreign person" as defined by applicable law or if Seller fails to deliver an affidavit that Seller is not a "foreign person," then Buyer shall withhold from the sales proceeds an amount sufficient to comply with the applicable tax law and deliver the same to the Internal Revenue Service together with appropriate tax forms. IRS regulations require the filing of written reports if cash in excess of specified amounts is received in the transaction. XVII. 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 Earnest Money Contract, Page 6 XIV. SALE OF INTEREST The Seller may not sell or assign all or part interest in Property A 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. Buyer may not sell or assign its rights hereunder without the prior consent of Seller. XV. NOTICES All notices required to be given hereunder shall be given in writing in person or by overnight, certified or registered mail, return receipt requested at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: SELLER The Baytown Little Theater, Incorporated P.O. Box 2022 Baytown, TX 77522 BUYER City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 XVI. FEDERAL TAX REQUIREMENTS If Seller is a "foreign person' as defined by applicable law or if Seller fails to deliver an affidavit that Seller is not a "foreign person," then Buyer shall withhold from the sales proceeds an amount sufficient to comply with the applicable tax law and deliver the same to the Internal Revenue Service together with appropriate tax forms. IRS regulations require the filing of written reports if cash in excess of specified amounts is received in the transaction. XVII. 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 Earnest Money Contract, Page 6 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. XVM. 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. XIX. 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. XX. 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 for complete relief to be recorded in the arbitration proceeding. XXI. 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. Earnest Money Contract, Page 7 XXH. 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. XXIII. EXPIRATION Z`ki 6 This Contract shall expire if not signed by the Seller on or before the 2,01b- day of March, 2009. 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 , 2009, the date of execution by the Seller. SELLER: THE BAYTOWN LITTLE THEATER INCORPORATED 4��- Signature GJ �u-Y !'lH I T't Printed Name —&41W PllcS i EA/r-- Title BUYER: CITY OF BAYTOWN, TEXAS GARRISON C. BRUMBACK, City Manager ATTEST: KAYTHIE DARNELL, City Clerk Earnest Money Contract, Page 8 XXII. 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. XXIII. EXPIRATION Z O This Contract shall expire if not signed by the Seller on or before the 200' day of March, 2009. IN WITNESS WHEREOF, the parries 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 , 2009, the date of execution by the Seller. SELLER: THE BAYTOWN LITTLE THEATER INCORPORATED 4F==A Signature W A-u-Y IAN r Printed Name Title BUYER: CITY OF BAYTOWN, TEXAS GARRISON C. BRUMBACK, City Manager ATTEST: KAYTHIE DARNELL, City Clerk Earnest Money Contract, Page 8 APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney STATE OF TEXAS COUNTY OF HARRIS Before me, ty -NACA, ►'i CQ l' In S , the undersigned notary public, on this day personally appeared (niAay AIHIT -tgy the PiQE.s /Ott /� of The Baytown Little Theater, Incorporated, 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. 2009. SUBSCRIBED AND SWORN before me thiau y of mojcd'1 \\ cobsry l \LcpfTw=\Files\Connwts\Baytown Little Theater LeaseTatnestMoneyContract4LandSwap .doe Earnest Money Contract, Page 9 \\►►uhuni/j /, V h B. Cp As voNyP�B /ys %,� Notary Public in and for the State of Texas d ,r • �p5 \\ cobsry l \LcpfTw=\Files\Connwts\Baytown Little Theater LeaseTatnestMoneyContract4LandSwap .doe Earnest Money Contract, Page 9 Exhibit "A" 0402930000071 ' TR 16, ABSTRACT 44, N. LYNCH SURVEY 0_402930000051 TR 6F, ABSTRACT 44, N, LYNCH SURVEY 0402930000076 TRS 27 & 28 W LT 6, ABSTRACT 44, N. LYNCH SURVEY 0402930000078 TRS 6T 6U 6V 6W 6X 6Y & 6Z, ABSTRACT 44, N. LYNCH SURVEY Exhibit "A" 0402930000051 TR 6F, ABSTRACT 44, N. LYNCH SURVEY 0402930000076 TRS 27 & 28 IN LT 6, ABSTRACT 44, N. LYNCH SURVEY 0402930000078 TRS 6T 6U 6V 6W 6X 6Y & 6Z, ABSTRACT 44, N. LYNCH SURVEY Exhibit "B" 0500720000009 LTS 9 10 11 & 12 BLK 60 (016 & 051 *THOMAS WRIGHT), GOOSE CREEK 0500720000005 LTS 5 6 7 & 8 BLK 60 (016 & 051 *THOMAS WRIGHT), GOOSE CREEK 0383010000003 LT 3 BLK 10, GOOSE CREEK TOWNSITE 0383010000004 LT 4 BLK 10, GOOSE CREEK TOWNSITE 0383010000001 LTS 1 & 2 BLK 10, GOOSE CREEK TOWNSITE 0383010000005 LTS 5 & 6 BLK 10, GOOSE CREEK TOWNSITE Exhibit "C" 0402930000182 1 TRACT 25 IN LOT 6, ABSTRACT 44, N. LYNCH SURVEY Exhibit "C" 0402930000182 1 TRACT 25 IN LOT 6. ABSTRACT 44. N. LYNCH SURVEY