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Ordinance No. 11,561ORDINANCF," NO. 11,561 AN ORDINANCT" 01''I'I'll"CITY COUNCIL 01"TI11" CITY OFHAY4"OWN, TEXAS, AUTHORIZING A RE'LEASLI' AND LARRY F. 11ENNU"T"I'AND JACKIE 131"NNI,"I'T CONCI"IRNING PROPERTY L(X,ATED AT 707 DFNBY STREET, BAYTOWN, HARRIS C0tJNTY, TL�,'IXAS; AUTHORIZING PAYNIENTOF A PURCHASt' PRICE' FOR THE PROPER [YIN AN AMOLJNT NOT TO, EXCI"I"D FIFTY THOUSAND AND NO/100 DOLLARS ($50,(I00,00); AND PROVIDING FORTTIF" L'T'I'll"CTIVE DA LL: —ITIFI'REM BrITORDAINED BY"I'llf,"' CITY COUNCIL (IL THE M"FY CAL BAY' TOWN, TE-XAS: Scctioll 1: That the City Council of the City ofBay,lown, T'exas, hereby authorizes the Interim City Manager to execute and the City Clerk I(,) attest to a Releascand Settlement Agreement with Larry F. Bennett and Jackie Bennet( concerning property located at 707 Denby Street. A copy, of` saki agreenicrit is attached hereto as E'xhibit "A" and incorporated herein for all intents and purposes. Section 2: That the City COU1161 of the City of Baytown authorizes the payment ()I' as J)LUCIMSe lViCC for the property subject to the agreement authorized in Section I hercof in all amount not to exceed F[ FTY T[ IOU SAND AND NO/100 DOLLARS ($-50,000.00), Section 3: That the Interim City Manager is hereby granted general 11.10101-ity W -tJ)j)1-0VC ZI (icerease, 01. an increase ill costs by TWEN'ry-i-wr: THOUSAND AND NO/100 DOLLARS ($25,000.00) or less, provided that the an aunt authorized in Section 2 hereof may not be increased by niore than twenty-five percent (25%). Section 41: This ordinance shall take eff�cl imillediately from and after its passage by, the City Council ofthe City of Baytown. NRlnd PASI""'D by I lie alfirillat ive vote of' rty Council of (lie, City of' Baytown y of January, 2() 11. r/p APPROVLIA) AS TO FORM: X-,ACIO RANIMIRF4 SR., Cty Attorney S`F EIN 11, DONCA1,0S, Mayor Exhibit "A" RELEASE AND SETTLEMENT AGREEMENT STATE OF TEXAS § § COUNTY OF HARRIS § WHEREAS, the Parties to this Release and Settlement Agreement ( "Release" or "Agreement") are LARRY F. BENNETT and JACKIE BENNETT, hereinafter collectively referred to as "Claimant," and the City of Baytown, Texas, hereinafter referred to as "City"; and Claimant and City being collectively referred to as the "Parties' ; and WHEREAS, Claimant owns the property located at 707 Denby Street, Baytown, Harris County, Texas, more particularly described as Lot 4, Block B, Wheatley Acres, Baytown, Hands County, hereinafter referred to as the "Property' ; and WHEREAS, Claimant alleges that Claimant is entitled to compensation for the City's wrongful demolition of a structure located on the Property; and WHEREAS, mindful of the cost and expense associated with litigation, the Parties have agreed to compromise, settle, and waive all claims concerning the alleged wrongful acts of the City on the terms set out in this Agreement without admitting or conceding any matter, NOW THEREFORE I. RELEASE For and in consideration of the City's purchasing the Property pursuant to the terms and conditions of the Earnest Money Contract attached hereto as Exhibit "A" and incorporated herein for all intents and purposes, the receipt and sufficiency of such consideration is hereby acknowledged, Claimant has this day released and does release, acquit, and forever discharge the City, its officers, agents, servants, and employees, and all persons, natural or corporate, in privity with them or any of them, from any and all claims or causes of action of any kind whatsoever, at common law, statutory or otherwise, that Claimant has or might have, known or unknown, now existing or that might arise hereafter, directly or indirectly attributable to the Property and the demolition of the structure previously located thereon. R. PURPOSE It is expressly understood and agreed that the terns hereof are contractual and not merely recitals and that the agreements herein contained and the consideration transferred is to compromise doubtful and disputed claims, avoid litigation, and buy peace, and that no releases or other consideration given shall be construed as an admission of liability, all liability being expressly denied. Release and SeM mmt A Page i III. ATTORNEY'S FEES The Parties hereby agree to be responsible for their own attorney's fees as well as any and all other costs and expenses incurred In connection with this Release and Settlement Agreement and the Earnest Money Contract incorporated herein. Claimant expressly waives any claim to seek attorney's fees under any federal or state authority. I PU. z I PJ -� 1W.. The Parties represent and warrant that each has been given an opportunity to consider this Agreement and to be fully advised by the counsel of its choosing regarding the meaning and the effect of this Agreement, that it relies after consultation with its counsel wholly upon its own judgment, belief, and knowledge of the nature and extent of the damages alleged and the liability questions involved in the claim, and covenants that neither has not been influenced to any extent whatsoever or induced to enter into this Agreement in reliance upon any statement, promise or representation of the other party. V. AUTHORITY Claimant represents and warrants that: (a) Claimant has not conveyed, transferred, assigned, pledged or otherwise encumbered any of its rights in the claims and that all of its interests are being completely released and discharged by this Agreement; and (b) Claimant is of legal age and legally and fully competent to enter into this Agreement and is doing so only after full understanding of the meaning and intent of this Agreement and all of Its terms. Vl. ENTIRE AGREEMENT This Agreement represents a full and complete settlement to resolve once and for all every disputed claim that Claimant has asserted or could assert against the City, its officers, agents, servants, and employees, and all persons, natural or corporate, in privity with than or any of them. The City has not agreed to do or omit to do anything not expressly set forth in this Agreement. This Agreement contains the entire agreement between the Parties and constitutes the complete, final and exclusive embodiment of their agreement with respect to the subject matter herein. V11. SEVERABILITY If any provision, section, exception, subsection, paragraph, sentence, clause or phrase of this Agreement shall for any reason be held unconstitutional, void or invalid, such invalidity shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, and to this end all provisions of this Agreement are declared to be severable. Vlll. EFFECTIVE DATE This Release shall become effective and enforceable immediately upon its execution by City and shall thereafter remain in effect. IX. CHOICE OF LAW AND VENUE This Release is made according to the laws of the State of Texas and shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas, 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. X. HEADINGS The captions of the various articles of this Agreement are for convenience and ease of reference only and do not define, limit, augment or describe the scope, content or intent of this Agreement or of any part or parts of this Agreement. XI. 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. Signed on this the ��. day of. Release and Settlement Agreement. Page 3 ATTEST: LETICIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney CITY OF BAYTOWN, TEXAS ROBERT D. LEIPER, Interim City Manager APPROVED AS TO FUNDING AVAILABILITY: MIKE A. LESTER, Interim Director of Finance STATE OF TEXAS § § COUNTY OF HARRIS Before me, the undersigned notary public, on this LARRY F. BENNETT, —Zknown to me; proved to me on the oath of ; or proved to me through his current {description of MAW OW 50maM hgmmmL Page 4 identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (check one) 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; that he executed the same as his free and voluntary act and deed after having it fully explained to him, and after having read it fully, and after realizing the effect thereof to be a full and final release and discharge of the City of Baytown and its officers, agents, servants, and employees, and all persons, natural or corporate, in privity with them or any of them for any matter or thing dealt with in the foregoing instrument; and that the same was executed by him without any threat, force, fraud, duress, or representation of any kind by any person whomsoever; and that he at the time of execution of the release was capable of understanding the character of his acts and deeds and was in complete charge of all of his faculties and capable of executing this instrument and of understanding the significance of his acts. SUBSCRIBED AND SWORN before me on this Zday of 01 2011. YItEOAAMI qtr CUMMros MUMS �raan�a STATE OF TEXAS § § COUNTY OF HARRI4`1 § Aj" - &" &=- Notary Public In and for the State of Texas Before me, the undersigned notary public, on this y nally appeared JACKIE BENNETT, known t: proved to me on the oath of : or proved to me through her current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person} (check one) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed; that she executed the same as her free and voluntary act and deed after having it fully explained to her, and after having read it fully, and after realizing the efrect thereof to be a full and final release and discharge of the City of Baytown and its officers, agents, servants, and employees, and all persons, natural or corporate, in privity with them or any of them for any matter or thing dealt Release and SeWment Aa mmm Page 5 with in the foregoing instrument; and that the same was executed by her without any threat, force, fraud, duress, or representation of any kind by any person whomsoever, and that she at the time of execution of the release was capable of understanding the character of her acts and deeds and was in complete charge of all of her faculties and capable of executing this instrument and of understanding the significance of her acts. SUBSCRIBED AND SWORN before me on this 07 day of 2011. X-W,mffd&lApNW=ntCWMANTRdc=Arww=Uw Release end Settlement ASM jmenL Page 6 Notary Public in and for the State of Texas Exhibit "A" EARNEST MONEY CONTRACT STATE OF TEXAS § § COUNTY OF HARRIS § This Earnest Money Contract is made and entered into this _ day of . 2011, by and between the CITY OF BAYTOWN, a municipal corporation located in Hams and Chambers Counties, Texas, hereinafter known as the "Buyer," and LARRY F. BENNETT and JACKIE BENNETT, hereinafter collectively known as the "Seller." L IN GENERAL Subject to Article 11 hereof, the Seller agrees to sell and convey to Buyer and Buyer agrees to buy from Seller the property described below. EL CONTINGENCY This Agreement and the Buyer's obligations herein are expressly contingent upon the City Council's approval of this Agreement. ID. PROPERTY The property subject to this Agreement is located at 707 Denby Street, Baytown, Harris County, Texas, and more particularly described as Lot 4, Block B, Wheatley Acres, Baytown, Harris County, hereinafter referred to as the "Property." IV. SALES PRICE The sales price of the above - referenced property is FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.001 hereinafter "Sales Price," .which sum shall be paid In full at closing on the Property. V. EARNEST MONEY Buyer shall deposit ONE THOUSAND AND NO1100 DOLLARS ($1,000.00) as earnest money with Chicago Title Company, as Escrow Agent, upon execution of this Agreement by both parties. 63s'! VL THE POLICY AND SURVEY Seller shall obtain at Buyer's sole cost and expense an Owner policy of Title Insurance (the "Title Policy") issued by Chicago Title Company, located at 407 W. Baker Road, Baytown, TX 77521 (ride Company") in the amount of the Sales Price, dated at or after closing, insuring Buyer against loss under the provisions of the Title Policy subject to the promulgated exclusions (including existing building and zoning ordinances) and the following exceptions: (1) restrictive covenants common to the platted subdivision in which the Property is located; (2) the standard printed exception for standby fees, taxes and assessments; (3) utility easements created by the dedication deed or plat of the subdivision in which the Property is located; (4) reservations or exceptions otherwise permitted by this Agreement or as may be approved by Buyer in writing; (S) 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 firmish 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 Buyees•address shown below. If the Commitment Is not delivered to Buyer within the specified time, the time for delivery shall be automatically extended up to fifteen (1S) 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 Within ten (10) days after Buyer's receipt of a survey plat, Buyer may object in writing to any matter which constitutes a defect or encumbrance to title shown on a survey plat obtained by Buyer at the expense of Buyer. The survey shall be made by a Registered Professional Land Surveyor acceptable to the Title Company and the Buyer. The plat shall (a) identify the Property by metes and bounds or platted lot description; (b) show that the survey was made and staked on the ground with the comers permanently marked; (c) set forth the dimensions and total area of the Property; (d) show the location of all improvements, highways, streets, roads, railroads, rivers, creeks or other waterways, fences, easements and rights -of -way on the Property with all easements and rights -ofway 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 connect. Utility easements created by the dedication deed and plat of the subdivision in which the Property is located shall not be a basis for objection. Buyer's failure to object under this article within the time allowed shall constitute a waiver of Buyer's right to object except that the requirements in Schedule of the Commitment shall not be deemed to have been waived. If objections are made by Buyer, Seller shall cure the objection within twenty (20) days after the date Seller receives them and the Closing Date shall be extended as necessary. If objections are not cured by the extended Closing bate, this Agreement shall terminate and the Eamest Money shall be refunded to Buyer, unless Buyer elects to waive the objections. VII. CLOSING The closing of the sale shall be on or before the 31 O day of March, 2011, or within seven (7) days after objections to title, inspection report, 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 MI hereof. At closing, Seller shall Rutrish tax statements or certificates showing no delinquent taxes are due and owing on the Property, and Seller shall tender a General Warranty Deed conveying good and indefeasible title showing no additional exceptions, other than those not objected to by Buyer or waived by Buyer pursuant to Article VI hereof. Vim. 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 any appraisal and environmental assessments; Title Insurance; preparation of deed; escrow fee; and other expenses stipulated to be paid by Buyer under other provisions of this Agreement. B. Seller shall be responsible for the expenses associated with the following: releases of existing liens, including prepayment penalties and recording fees; release of Seller's loan liability; taxes assessed prior to January 1, 2011; tax statements or certificates; and other expenses stipulated to be paid by Seller under other provisions of this Agreement. 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. 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, Eant d Monsv Contract Page 3 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. im 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 party or parties without the express prior written approval of the Interim 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 Earnest Money Contract, Page 4 Interim City Manager. It is expressly understood and agreed that this provision shall only apply to the Property as defined in Article 111. XVL 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 Larry F. & Jackie Bennett 503 E. Sterling St. Baytown, TX 77520 -5I39 BUY-Eg City of Baytown Attn: Interim City Manager P.O. Box 424 Baytown, TX 77522 XV.XVIL 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 tiling of written reports if cash in excess of specified amounts is received in the transaction. XV11L USE The intended use of the Property by Buyer is for municipal purposes. If Buyer ascertains that applicable zoning ordinances, easements, restrictions or governmental laws, rules or regulations prevent such intended uses, and Buyer notifies Seller within thirty (30) days after the effective date of this Agreement (but in ail events at least seven (7) days prior to closing) of Buyer's inability to use the property as herein proposed, the Agreement shall terminate and the Earnest Money shall be refunded to Buyer. Buyer's failure to give the notice within the required time shall constitute Buyer's acceptance of the Property. X13L NON - WAIVER Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be Earned Mang Page 5 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. XL 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. XXL 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 for complete relief to be recorded in the arbitration proceeding. XXHL 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. XXV. EXPIRATION This Contract shall expire if not signed by the Seller on or before the 1" day of February, 2011. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which sha deemed to be an oar! nal, but all of which shall constitute but one and the same Agreement on the y of (� , 2011, the date of execution by the Seller. SELLER: r LA F. BE NN E ATTEST: LE71CIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney JACKIE CITY OF BAYTOWN, TEXAS ROBERT D. LEIPER, Interim City Manager APPROVED AS TO FUNDING AVAILABILITY: MIKE A. LESTER, Interim Director of Finance Earnest Money Contract, Page 7 STATE OF TEXAS § COUNTY OF HAR7YWUL446 Before me, the undersigned notary public, on this day personally appeared LARRY &L BENNETT, the owner of the abovo da=ibed property, brown to me to be the person whose name is subsanibed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. SUBSCRIBED & LVQjb be ere ire thi_ bay of 01 .2011. 1itmAMENt • MY cOf OM Ex MRE6 dw�aq►O►�W Notary Public in and for the tate of Texas STATE OF TEXAS COUNTY OF Before me, the undersigned notary public, on this day personally JAC B , the owner of the abov& described property, known to me to be the person whose name to the foregoing instrument and acknowledged to rrne that she executed the same for the and consideration therein expressed. SUBSCRIBED AND SWORN before me this , of 12011. --- ------- ftaqwa� Az— &., - L', • UM#MMM Notary Public in and for the State of Texas 1(9 uY OM68 noM EMM ,parsryE,tlD1.1 %TobarvlUepMKs=W4=T4MzaA7M Darby EwnM Ma" MONEY COMRACT. M