HomeMy WebLinkAboutPR 20201: EDC AND JOHNSCORP INTERNATIONAL, INC. REGARDING PROPERTY LOCATED AT 549 4TH STREET P.R. No. 20201
7/11/2018 KVM
RESOLUTION NO.
A RESOLUTION APPROVING A PURCHASE AGREEMENT BETWEEN THE
CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION AND JOHNSCORP INTERNATIONAL, INC. REGARDING
THE PROPERTY LOCATED AT 549 4TH STREET FOR A PURCHASE PRICE
NOT TO EXCEED $80,000, ACCOUNT NO. 120-1429-582.82-00. FINAL
PAYMENT CONTINGENT UPON THE RECEIPT OF GRANT FUNDS FROM
THE ECONOMIC DEVELOPMENT ADMINISTRATION ("EDA").
WHEREAS, the City of Port Arthur Section 4A Economic Development Corporation
("PAEDC") Board of Directors is dedicated to fostering business and community development,
revitalization and recovery in the City of Port Arthur; and
WHEREAS, to help facilitate its goals, PAEDC has applied to the Economic Development
Administration ("EDA") for Federal Disaster Assistance Funding under EDA's Economic
Development Assistance Programs for Public Works and Economic Development Facilities; and
WHEREAS, PAEDC plans to use the EDA grant funds to rehabilitate and revitalize the
property at 549 4th Street, formerly known as the Port Arthur News Building, to provide a Center for
Community and Business Development; and
WHEREAS, at their July 9, 2018 special Board meeting, the PAEDC Board of Directors
approved purchasing the property at 549 4th Street from Johnscorp International, Inc., at a purchase
price not to exceed $80,000; and
WHEREAS, the purchase of the building is contingent upon PAEDC securing grant funding
through the EDA for the costs associated with retrofitting the property as outlined in the proposed
Purchase Agreement attached hereto as Exhibit "A"; and
WHEREAS, specifically, Section 7.1 of the proposed agreement states that "Buyer shall have the
right to terminate this Agreement at any time if it does not secure funding through the U.S. Department of
Commerce Economic Development Administration (EDA Control No.: 112234) for costs associated with
retrofitting the Property."
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
PORT ARTHUR:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That the City Council herein approves the Purchase Agreement between PAEDC and
Johnscorp International, Inc. regarding the property at 549 4th Street for a purchase price not to exceed
$80,000, contingent upon the award of grant funds to the PAEDC by the EDA. Payment will not be
made until funding has been secured to pay for said project.
Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City
CoLncil.
READ,ADOPTED AND APPROVED on this day of A.D., 2018, at a
Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES:
Mayor
Councilmembers
NOES:
Derrick Freeman, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED:
Floyd Batiste, PAEDC CEO
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APPROVED AS TO F ' :
Guy N. Goodson, PAEDC Attorney
APPROVED AS TO FORM:
Valecia R. Tizeno, City Attorney
APPROVED AS TO AVAILABILITY OF FUNDS:
)0(A,kit
Andrew Vasquez, inane Director
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Pagel
EXHIBIT "A"
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is entered into, and is effective as of
, 2018 (the "Effective Date"), by and between Johnscorp International,
Inc. or its permitted assignee ("Seller") and City of Port Arthur Section 4A Economic
Development Corporation ("Buyer").
RECITALS:
A. Seller is the owner of certain real property together with all improvements located
thereon,which is located at 549 4th Street, Port Arthur, Texas.
B. Seller desires to sell to Buyer and Buyer desires to buy 549 4th Street, Port Arthur,
Texas (as described in "RECITAL A" above and as more particularly described on Exhibit "A"
attached hereto) together with all improvements, if any, located on such land and all rights,
privileges, servitudes and appurtenances thereunto belonging or appertaining, including all
rights, title and interest of Seller in and to the streets, alleys, and rights-of-way adjacent to such
parcel (collectively, the "Property") from Seller upon the terms and subject to the conditions
contained herein and incorporated by reference herein as if fully set forth.
NOW, THEREFORE, in consideration of the promises contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
ARTICLE 1
PURCHASE PRICE
1.1 Sale and Purchase. Seller shall sell, convey, and assign to Buyer, and Buyer
shall purchase, assume and accept from Seller, for the price (defined below), and on and subject
to the terms and conditions herein, indefeasible fee simple title to the Property. Buyer and Seller
agree that the legal description of the Property shall be determined mutually by Buyer and Seller
upon completion of the Survey (defined below). The Property shall be sold, conveyed, and
assigned to Buyer at Closing(defined below) free and clear of all liens except for the lien of real
property taxes not yet due and payable, and subject to the Permitted Exceptions (defined below).
1.2 Price and Payment. The purchase price for the Property, together with all
improvements located thereon, would be the cost to clear the title or$80,000, whichever is lesser
(the"Purchase Price").
1.3 Deposit. Within five (5) days of the Effective Date, Buyer shall deposit with
Texas Regional Title, 7980 Anchor Drive, Building 800, Port Arthur, Texas 77642 (the "Escrow
Holder" or "Title Company") a cash deposit, which shall be deposited into an interest-bearing
account, in the amount of Five Thousand and 00/100 Dollars ($5,000) (the "Deposit"). The
"Deposit" shall mean the amount deposited by Buyer, together will all interest earned thereon.
The Deposit shall be applied as a credit against the Purchase Price at the closing of the Escrow.
1.4 Refund of Deposit. The Deposit shall be fully refundable to Buyer if Seller
breaches or defaults in the performance of any of its obligations under this Agreement, or if
Buyer elects to terminate this Agreement pursuant to any provision set forth herein.
1.5 Closing Transaction. Consummation of the sale provided herein (the "Closing")
shall take place on the Closing Date (as herein defined) through the Escrow Holder at its offices
or at such other place Seller and Buyer mutually agree in writing. At or prior to the Closing Date
(as herein defined), each of the parties shall execute and deliver such documents and perform
such acts as are provided for in this Agreement or as are necessary to consummate the
transaction contemplated hereunder. All obligations of either party to be performed at or prior to
the Closing Date are mutually concurrent conditions precedent as well as covenants. Time is of
the essence with regard to the Closing Date.
1.6 Escrow Instructions. Seller and Buyer shall deliver to the Escrow Holder an
executed copy of this Agreement and such additional escrow instructions to Escrow Holder as
each party deems appropriate or as Escrow Holder may reasonably require, provided that such
instructions are consistent with this Agreement (the "Escrow Instructions"). No Escrow
Instruction shall excuse any performance by either Buyer or Seller at the times provided in this
Agreement, extend the Closing Date provided for in this Agreement or provide either Buyer or
Seller with any grace period not provided in this Agreement, and any Escrow Instruction to the
contrary shall be considered of no force and effect.
ARTICLE 2
PRE-CLOSING MATTERS
2.1 Delivery of Due Diligence Materials. On or before Fifteen (15) days following
the Effective Date, Seller shall deliver to Buyer the following documents (the "Due Diligence
Materials") to the extent such materials are in Seller's possession or subject to Seller's reasonable
control and to the extent such materials relate to the Property and/or any improvements thereon:
plans and specifications; land Survey(s); all structural, seismic, soils, engineering and geological
investigations and reports; all environmental investigations and reports; Reciprocal Easement
Agreement(s); any leases, licenses or occupancy agreements (with any amendments) and all
agreements (including, but not limited to, service and maintenance agreements) relating to the
operation, use and maintenance of the Property.
2.2 Survey. On or before Sixty(60) days from the Effective Date, Buyer shall obtain
and cause to be delivered to both the Escrow Holder and the Seller a current and updated
Category 1 A, Condition II survey of the Property, with Exhibit "A" being conformed hereto,
which survey shall be prepared by a Texas licensed professional land surveyor and shall be
certified to Seller and Buyer, and which shall include a metes and bounds legal description of the
Property, a calculation of the land area of the Property to the nearest one-thousandth (.001) of an
acre(together with the number of square feet of area contained therein), and the area, dimensions
and locations of all recorded easements affecting or benefiting the Property(the "Survey").
2.3 Title Commitment. Buyer shall have the right, prior to the expiration of the
Feasibility Period (defined below) to obtain a current commitment ("Title Commitment") from
the Title Company for issuance to Buyer of a standard Texas form (Form T-1) Owner's Policy of
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Title Insurance in the amount calculated at $200,000 (the "Title Policy"). Buyer shall have until
sixty (60) days from the Effective Date (the "Title Review Period") to object in writing to any
exceptions stated in the Title Commitment. In the event that Buyer shall so object to any
exceptions, Seller shall have twenty (20) days from its receipt of such written objections (the
"Response Deadline") within which to resolve or eliminate such exceptions or to notify Buyer in
writing of its inability or unwillingness to remove such exceptions. In the event Seller shall so
notify Buyer of its inability to unwillingness to resolve or eliminate such exceptions prior to the
Response Deadline, Buyer, by written notice to Seller, may do one of the following: (i)
terminate this Agreement and be released from all duties and obligations hereunder and the
Deposit shall be returned to the Buyer; or (ii) waive such exceptions and proceed with the
transaction contemplated herein. Any exceptions listed in the Title Commitment to which Buyer
shall not object prior to the expiration of the Title Review Period (or which Buyer shall have
approved or waived affirmatively) shall be deemed to be "Permitted Exceptions."
2.4 Right of Entry and Indemnification. From the Effective Date to the Closing
Date, Buyer and its agents shall have the right to enter upon the Property upon reasonable notice
to Seller for the purpose of making such surveys, examinations, soil and engineering tests and
other tests and determinations as Buyer shall elect (collectively "Tests"). Buyer and its
representatives shall have the right to make test borings or to remove samples of materials as
Buyer shall deem appropriate, provided that, in the event Buyer terminates this Agreement and
fails to close the purchase of the Property, Buyer shall repair at its cost any damage to any of the
Property resulting from the Tests. Buyer shall indemnify, defend and hold Seller harmless from
(i) any and all liabilities, claims, damages and expenses (including attorneys' fees, court costs,
and costs of investigation) arising out of or in connection with the Tests or the entry unto the
Property by Buyer or its agents and (ii) any mechanics' liens on the Property arising from the
Tests.
2.5 Feasibility Period. In addition to the matters covered in Section 2 above and
Section 3 below and any other termination rights granted herein, Buyer shall have the right to
terminate this Agreement for any reason within Ninety (90) days from the Effective Date (the
"Feasibility Period"). The right to terminate during the Feasibility Period shall inure exclusively
to Buyer and Buyer may, at its sole option, waive its right to terminate this Agreement prior to
the expiration of the Feasibility Period by providing a written notice to Seller. Buyer, at its sole
option, shall also have the right to extend the Feasibility Period for two (2) additional periods of
Thirty (30) days each, provided notice of such election is given prior to the expiration of the
Feasibility Period. For the right to extend the Feasibility Period for each additional Thirty (30)
days the Buyer shall deposit with the Escrow Holder the sum of Five Thousand and 00/100
Dollars ($5,000.00) as an addition to the Deposit for each extension exercised. The additional
deposit shall be treated in the same fashion as the Deposit.
If the Property zoning classification is not proper in order to build and operate an
office/warehouse (hereinafter referred to as "the Facility"), upon Buyer's written request, Seller
shall be responsible for, and hereby covenants to take actions necessary to, change the existing
zoning classification to a new classification which will allow for the construction and operation
of the Facility. If necessary, the Feasibility Period shall be extended in order to allow the time
necessary to obtain any necessary zoning change. If Buyer requests a zoning change, Seller
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agrees to cooperate with Buyer and to provide such information, take such action(s) and execute
such documents as may be necessary to affect any requisite zoning change.
2.6 PROPERTY CONDITION. NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, BUYER ACKNOWLEDGES
AND AGREES THAT SELLER MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF
HABITABILITY, AND SUITABILITY AND FITNESS FOR INTENDED PURPOSE, WITH
RESPECT TO ANY ASPECT OF THE PROPERTY. BUYER IS PURCHASING THE
PROPERTY STRICTLY IN "AS IS" "WHERE AS" CONDITION, AND BUYER ACCEPTS
AND AGREES TO BEAR ALL RISKS REGARDING ALL ATTRIBUTES AND
CONDITIONS, LATENT OR OTHERWISE OF THE PROPERTY. BUYER HAS MADE OR
WILL MAKE PRIOR TO THE CLOSING ITS OWN INSPECTION AND INVESTIGATION
OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ITS SUBSURFACE, SOIL,
ENGINEERING AND OTHER CONDITIONS AND REQUIREMENTS, WHETHER THERE
ARE ANY EMINENT DOMAIN OR OTHER PUBLIC OR QUASI-PUBLIC TAKINGS OF
THE PROPERTY CONTEMPLATED, AND ALL ZONING AND REGULATORY MATTERS
PERTINENT TO THE PROPERTY AND TO THE PRESENT USE OR OCCUPANCY OF
THE PROPERTY. BUYER IS ENTERING INTO THIS AGREEMENT AND PURCHASING
THE PROPERTY BASED UPON ITS OWN INSPECTION AND INVESTIGATION AND
NOT IN RELIANCE ON ANY STATEMENT, REPRESENTATION, INDUCEMENT OR
AGREEMENT OF SELLER EXCEPT AS SPECIFICALLY PROVIDED HEREIN. BUYER
AGREES THAT NEITHER SELLER NOR ANYONE ACTING ON BEHALF OF SELLER
HAS MADE ANY REPRESENTATION, GUARANTEE OR WARRANTY WHATSOEVER,
EITHER WRITTEN OR ORAL, CONCERNING THE PROPERTY EXCEPT AS
SPECIFICALLY SET FORTH HEREIN, IN THE INCENTIVE AGREEMENT OR THE
DOCUMENTS DELIVERED BY SELLER AT CLOSING. ANY ENGINEERING DATA,
SOILS REPORTS, OR OTHER INFORMATION THAT SELLER OR ANY OTHER PARTY
MAY HAVE DELIVERED TO BUYER IS FURNISHED WITHOUT ANY
REPRESENTATION OR WARRANTY WHATSOEVER. SELLER SHALL HAVE NO
RESPONSIBILITY, LIABILITY OR OBLIGATION SUBSEQUENT TO THE CLOSING
WITH RESPECT TO ANY CONDITIONS, INCLUDING, WITHOUT LIMITATION,
ENVIRONMENTAL CONDITIONS, OR AS TO ANY OTHER MATTERS WHATSOEVER
RESPECTING IN ANY WAY THE PROPERTY, AND BUYER HEREBY RELEASES
SELLER, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS WITH RESPECT TO
SUCH CONDITIONS, EXCEPT FOR ANY MATTERS OF FRAUD OR KNOWING
MISREPRESENTATION.
2.7 Deposit Non-Refundable. Upon satisfaction of all of the conditions described
elsewhere in Article 2 and below in Article 3.5 of this Agreement, Buyer's Deposit shall become
non-refundable (except as specifically set forth in this Agreement or in the event of a Seller
default) and applicable to the Discounted Purchase Price.
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ARTICLE 3
CLOSING CONDITIONS
The obligation of Buyer to purchase the Property is subject to the satisfaction or waiver
by Buyer of the conditions set forth below, which conditions are for the sole benefit of Buyer and
which may be waived, in whole or in part,by Buyer:
3.1 Title.. On or before the Closing Date, the Title Company shall be ready, willing
and able to issue to Buyer or Buyer's assignee the Title Policy insuring Buyer in the amount
calculated at the rate set forth in Article 2.3 above that fee simple title of the surface only to the
Property is vested in Buyer, together with such endorsements as Buyer may reasonably require
and subject only to (i) liens for then-current real property taxes, bonds and assessments not
delinquent, (ii) the Permitted Exceptions, (iii) any other matters to which Buyer shall agree in
writing.
3.2 Assignment. At the Closing, Seller shall assign to Buyer all of Seller's right, title
and interest in and to any contracts, permits and warranties specifically identified and relating to
the Property which Buyer wishes to assume pursuant to an Assignment of Contracts, Permits and
Warranties in the form attached hereto as Exhibit"B" (the"Assignment").
3.3 Seller's Warranties and Covenants. On the Closing Date, Seller shall not be in
material breach of any of Seller's warranties and representations set forth in Article 6 below. All
covenants to have been performed by Seller before or at Closing shall have been satisfied.
3.4 Governmental Approvals. Buyer shall be obligated to proceed to Closing only
after obtaining all necessary governmental approvals, including but not limited to the proper
zoning for the Facility, legal lot status (final plat), any required conditional or special use
permits, and all required building permits for the Facility. Seller agrees, upon Buyer's request, to
cooperate with Buyer in connection with Buyer's efforts to secure such approvals, provided any
such requested cooperation is reasonable under the circumstances.
3.5 Subdivision. If the Property is not currently legally subdivided in a manner
sufficient to permit the conveyance of the Property or the development of the Facility, Buyer's
obligation to close shall be subject to obtaining a Final Plat or Replat of the Property which is
acceptable to Buyer. Buyer shall cooperate with Seller in all reasonable respects in obtaining
Final Plat or Replat approval for the Property and in recording the Final Plat or Replat. All costs
of the platting process will be paid by the Seller. Buyer shall have the right to review and
approve the Final Plat or Replat.
3.6 Condition of Property. There shall have been by Closing no material adverse
change in the condition of the Property or any elements of the Property from the dates of the
inspections conducted in satisfaction of the conditions of this Agreement or in the building,
subdivision, or other laws, ordinances, rules, or regulations applicable to the Property from the
date of satisfaction of the conditions set forth herein until Closing.
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ARTICLE 4
CLOSING
4.1 Escrow. The purchase and sale transaction contemplated by this Agreement shall
be consummated through the Escrow established by the Escrow Holder.
4.2 Closing Date. Closing of the Escrow (the "Closing Date") shall take place in the
offices of the Escrow Holder fifteen (15)business days following the expiration of the Feasibility
Period (or such earlier date on which Buyer waives its right to terminate the Agreement).
4.3 Escrow Instructions. The parties hereby instruct Escrow Holder to open and
complete Escrow and Closing in accordance with the Escrow Instructions. Buyer and Seller shall
deposit with Escrow Holder in a timely fashion all funds, documents, supplemental instructions
and instruments necessary to consummate the transactions contemplated by this Agreement prior
to the Closing Date.
4.4 Closing Deliveries. At the Closing the following, which are mutually concurrent
conditions, shall occur:
4.4.1 Buyer, at its expense, shall deliver or cause to be delivered to Seller the
following:
(a) the Discounted Purchase Price, subject to the Earnest Deposit and
adjustments and prorations as provided herein, in funds available
for immediate value in Seller's accounts;
(b) evidence satisfactory to Title Company that the person(s)
executing the closing documents on behalf of Buyer have full
right, power, and authority to do so;
(c) a fully-executed counterpart of the Incentive Agreement; and
(d) such other documents as may be reasonably requested by the Title
Company in accordance with this Agreement, or as are customarily
executed in the county in which the Property is located to
effectuate the conveyance of property similar to the Property.
4.4.2 Seller, at its expense, shall deliver or cause to be delivered to Buyer the
following:
(a) a special warranty deed in the form attached hereto as Exhibit"C"
(the "Deed"), fully executed and acknowledged by Seller, and
otherwise in recordable form as provided in Section 5.1;
(b) the Assignment, fully executed by Seller;
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(c) Seller's certificate that the representations and warranties
contained in Section 6 hereof are true and correct as of the Closing
Date;
(d) evidence satisfactory to Buyer and Title Company that the
person(s) executing and delivering the closing documents on
behalf of Seller have full right, power and authority to do so;
(e) a certificate meeting the requirements of Section 1445 of the
Internal Revenue Code of 1986, executed and sworn to by Seller;
(f) a fully-executed counterpart of the Incentive Agreement; and
(g) such other documents as may be reasonably requested by the Title
Company in accordance with this Agreement, or as are customarily
executed in the county in which the Property is located to
effectuate the conveyance of property similar to the Property.
4.5 Closing Costs and Charges. Seller shall pay for Standard Owner's Policy of
Title Insurance and half of Escrow Fees. Buyer shall pay for any extended Title Policy
Endorsements and half of Escrow Fees. Any and all other charges shall be paid as set forth in
this Agreement or if not specified herein as customary in Jefferson County, Texas. At Closing,
Seller shall provide Buyer with a credit against the Discounted Purchase Price to reimburse
Buyer for the cost of the Survey,provided such credit shall not exceed $7,000.00.
ARTICLE 5
TRANSFER OF TITLE AND POSSESSION
5.1 Deed. Seller shall convey to Buyer or to Buyer's assignee at the Closing, by the
Deed, fee simple title to the Property, free and clear of any and all recorded and unrecorded liens,
claims, obligations, encumbrances, easements, leases, covenants, restrictions and other matters
affecting the Property and/or title thereto except only the Permitted Exceptions, current real
property taxes, bonds and assessments not yet due and payable, and any other matters to which
Buyer shall agree in writing.
5.2 Possession. Seller shall deliver possession of the Property to Buyer free and clear
of the occupancy or possessory rights of all others on the Closing Date.
ARTICLE 6
REPRESENTATIONS AND COVENANTS OF SELLER
Seller represents and warrants and covenants as follows, which representations,
warranties and covenants shall survive the Close of Escrow and delivery of the Deed to Buyer:
6.1 Authority. Seller has full right, power and authority to execute and deliver this
Agreement and to consummate the purchase and sale transactions provided herein. No further
authorization, whether corporate, partnership, individual or otherwise is necessary or required as
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a condition precedent to Seller entering into this Agreement or performing its obligations
hereunder.
6.2 Code. Seller has no knowledge of and has not received any notice of any code
violation. To the best of Seller's knowledge, the Property, including all improvements located
thereon (if any), complies with all applicable building, health, fire, safety and similar laws,
ordinances,regulations and codes.
6.3 Accuracy of Documents. To the best of Seller's knowledge, Seller represents
that all of the documents, information and records provided to Buyer by Seller in connection
with the transaction contemplated herein, including the Due Diligence Materials, are true and
complete in all material respects.
6.4 Public Improvements; Condemnation. Other than matters recorded in the
public record and listed in the Title Commitment, Seller knows of no intended or contemplated
public improvements or condemnation or of any condition of the land that will frustrate or
interfere with Buyer's intended use of the Property. To the best of Seller's knowledge the
Property satisfies all federal, state, and local statutes, ordinances and regulations.
6.5 Litigation. To the best of Seller's knowledge, there are no claims, administrative
actions or lawsuits, pending or threatened, against Seller relating in any manner to the Property,
or on account of the surface or subsurface physical characteristics of the Property. To the best of
Seller's knowledge, there are no violations, threatened or pending, of any local, state or federal
law or regulation affecting the Property and there are no pending or contemplated assessments,
eminent domain, condemnation or other governmental takings of the Property or any part
thereof.
6.6 Hazardous Materials; Unsafe Conditions. Except as otherwise disclosed to
Buyer by Seller, Seller has received no notice from any local, state or national governmental
entity or agency or other source of any hazardous waste condition existing or potentially existing
with respect to the Property. To the best of Seller's knowledge, there has been no use, discharge,
release, generation, storage or disposal of in, on, or under the Property of any hazardous waste,
toxic substances or related materials ("Hazardous Materials") except in accordance with
applicable law. For the purposes of this representation and warranty, Hazardous Materials shall
include but shall not be limited to, any substance, material, or waste which is or becomes
regulated by any local governmental authority, the State in which the Property is located, or the
United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) as
amended from time to time. Further Seller agrees that it will not discharge, release,use, generate,
store or dispose, or permit or suffer the discharge, release, use, generation, storage or disposal of
any Hazardous Materials above, in, on, under or around the Property in violation of any
environmental law prior to the Closing. Seller further warrants that to the best of its knowledge,
there is no underground storage tanks located on the Property.
6.7 Condition. From the Effective Date through Close of Escrow, Seller will
maintain the Property in the same condition, reasonable wear and tear excepted.
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6.8 New Agreements. From and after the Effective Date, Seller shall not renew,
extend or enter into any new lease or service or management contract, or other agreement that
affects the Property without the prior written consent of Buyer.
6.9 No Leases. There are no leases, licenses, concessions, or other oral or written
agreements affecting the Property that grant to any person or entity the right of occupancy or use
thereof.
6.10 Foreign Person. Seller is not a foreign person or entity under the Foreign
Investment in Real Property Tax Act of 1980, as amended, and no taxes or withholding under the
Foreign Investment in Real Property Tax Act of 1980, as amended, shall be assessed or applied
to Buyer in connection with the transaction contemplated hereby.
6.11 Closing Warranties. All warranties and representations contained in this
Agreement, except as otherwise disclosed in writing, shall be deemed to have been repeated by
Seller as of the Closing, and shall be true and accurate as of the Closing.
ARTICLE 7
TERMINATION AND DAMAGES
7.1 Failure to Obtain EDA Grant Funding. Buyer shall have the right to terminate
this Agreement at any time if it does not secure funding through the U.S. Department of
Commerce Economic Development Administration (EDA Control No.: 112234) for costs
associated with retrofitting the Property.
7.2 Termination. Except as expressly prohibited in this Agreement, in the event of
any default in this Agreement by either of the parties hereto, the other party, in addition to any
right or remedy available hereunder, at law or in equity, shall have the right to terminate this
Agreement by written notice to the defaulting party and Escrow Agent. If any such termination
is the result of default hereunder by Seller, then the Deposit and interest accrued thereon shall be
returned to Buyer. If Buyer defaults hereunder, actual damages to Seller will be difficult to
calculate but Buyer and Seller agree that the amount of the Deposit designated above is a
reasonable approximation thereof. Accordingly, if Buyer defaults, Seller shall be entitled to
tenninate this Agreement and immediately upon such termination by Seller, Escrow Agent shall
pay to Seller, as Seller's sole remedy, the Deposit, together with interest thereon, and any other
monies paid on behalf of Seller. Nothing contained in this Section shall prevent Seller from
enforcing Buyer's obligations and liabilities which survive a termination of this Agreement.
7.2 No Specific Performance. If either Buyer or Seller breaches this Agreement
prior to the Closing and, as a result, the Closing does not occur, each party waives the right to
specific performance. Each party agrees that this clause shall constitute an absolute defense to
any action filed by one of the parties hereto against the other for specific performance. This
clause, if asserted by one of the parties hereto against an action for specific performance, shall
enable said party to cause the action for a specific performance to be set aside at any time nunc
pro tune.
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7.3 Condemnation and Casualty. If before the Closing, either party receives notice
of any condemnation or eminent domain proceeding, any proceeding in lieu of condemnation
being initiated against the Property, or the damage or destruction of all or a part of any
improvements located at the Property, the party receiving the notice shall promptly notify the
other party in writing of that fact. Buyer may elect to either proceed with the sale of the Property
or to terminate this Agreement within Thirty (30) days from the date that the notice is received.
If Buyer elects to proceed with the acquisition of the Property, then Buyer may, solely at its own
discretion, accelerate the Closing to any time prior to the Closing Date set forth hereinabove. If
Buyer proceeds with the purchase in accordance with the terms of this Agreement, all
condemnation and insurance proceeds shall be paid to Buyer. If any proceeds have not been
collected as of the Closing, then all rights to those proceeds shall be assigned to Buyer at the
Closing.
7.4 DAMAGES. SELLER AND BUYER AGREE THAT IF BUYER BREACHES ITS
OBLIGATIONS HEREUNDER, SELLER SHALL TERMINATE THIS AGREEMENT AND
RETAIN, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, THE AMOUNTS DEPOSITED
WITH ESCROW HOLDER PURSUANT TO THIS AGREEMENT, TOGETHER WITH ANY
ACCRUED INTEREST THEREON AS OF THE TIME OF DEFAULT AS LIQUIDATED
DAMAGES, IT BEING AGREED THAT UNDER ALL THE CIRCUMSTANCES EXISTING
AT THE TIME OF THIS AGREEMENT, THIS PROVISION LIQUIDATING DAMAGES IN
THE EVENT OF THE BUYER'S DEFAULT IS REASONABLE, THE DAMAGES
RESULTING TO SELLER BY REASON OF SUCH BREACH ARE NOW AND THEN
WOULD BE DIFFICULT AND IMPRACTICAL TO DETERMINE AND THAT THE BEST
ESTIMATE, BASED ON ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF
THIS AGREEMENT, OF THE TOTAL DAMAGES THAT SELLER WOULD SUFFER IS
AND SHALL BE AN AMOUNT EQUAL TO THE SUMS DEPOSITED BY BUYER WITH
ESCROW HOLDER AS OF THE TIME OF DEFAULT. IN PLACING THEIR INITIALS IN
THE SPACES PROVIDED BELOW, THE PARTIES CONFIRM THAT THEY HAVE READ,
UNDERSTAND AND AGREE TO THIS PROVISION.
BUYER SELLER
7.5 Waiver. Excuse or waiver of the performance by the other party of any
obligation under this Agreement shall only be effective if evidenced by a written statement
signed by the party so excusing. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver by Seller or Buyer of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or
any other covenant or condition of this Agreement.
•
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ARTICLE 8
MISCELLANEOUS
8.1 Merger. Except as otherwise expressly provided in this Agreement, the
representations, warranties and agreements of the parties contained or provided for in this
Agreement shall survive the close of Escrow and delivery of the Deed to Buyer.
8.2 Notices. Unless otherwise specifically provided herein, all notices, consents,
directions, approvals, instructions, requests and other communications required or permitted by
the terms hereof to be given to any person or entity shall be in writing, and any such notice shall
become effective five (5) business days after being deposited in the mails, certified or registered,
with appropriate postage prepaid for first-class mail or, if delivered personally, by reputable
overnight courier service, or by facsimile transmission or electronic mail, when received, and
shall be directed to the address of such person or entity set forth below, or at such other address
as either party shall hereafter designate in writing and deliver to the other in accordance with the
provision of this paragraph:
Buyer at: Floyd Batiste, CEO
Port Arthur Section 4A Economic Development Corp.
501 Procter Street
Port Arthur,TX 77640
Telephone: (409) 963-0579
Facsimile: (409) 962-4445
E-mail: fbatiste@paedc.org
With a copy to: Guy N. Goodson, EDC Attorney
Germer PLLC
P. O. Box 4915
Beaumont, Texas 77704
Telephone: (409) 654-6730
Facsimile: (409) 835-2115
E-mail: ggoodson@germer.com
Seller at: Johnscorp International, Inc.
Attn:
Telephone:
Fax:
E-mail:
Escrow Holder at: Texas Regional Title
7980 Anchor Drive, Building 800
Port Arthur,Texas 77642
Telephone: (409) 861-7300
Facsimile: (409) 727-8386
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83 Authority and Execution. Each person executing this Agreement on behalf of a
party represents and warrants that such person is duly and validly authorized to do so, has full
right and authority to enter into this Agreement and all of its obligations hereunder.
8.4 Severability. The invalidity or unenforceability of any term or provision of this
Agreement or the nonapplication of any such term or provision to any person or circumstance
shall not impair or affect the remainder of this Agreement, and the remaining terms and
provisions hereof shall not be invalidated but shall remain in full force and effect and shall be
construed as if such invalid,unenforceable, or nonapplicable provision were omitted.
8.5 Waiver or Modification. No waiver or modification of this Agreement or of any
covenant, condition, or limitation herein contained shall be valid unless in writing and duly
executed by the party to be charged therewith. No evidence of any waiver or modification shall
be offered or received in evidence in any proceeding, arbitration, or litigation between the parties
arising out of or affecting this Agreement or the rights or obligations of any party hereunder,
unless such waiver or modification is in writing and duly executed as aforesaid. The provisions
of this Article 8.5 may not be waived except as herein set forth.
8.6 Headings. The headings of the various Articles of this Agreement are for
convenience of reference only and shall not modify, define or limit any of the terms or
provisions hereof or thereof.
8.7 Parties in Interest. The terms of this Agreement shall be binding upon, and
inure to the benefit of, the parties to this Agreement and their successors and assigns. Buyer
shall not assign its rights under this Agreement to any third party that is not an Affiliate (defined
below) without the prior written consent of Seller. Buyer shall be permitted to assign this
Agreement without the prior written consent of Seller to an Affiliate. For purposes of this
Section, "Affiliate" shall mean (i) a subsidiary of Buyer, (ii) a corporation or other entity into or
with which Buyer has merged or consolidated, or to which substantially all of Buyer's stock or
assets are transferred, (iii) any corporation or other entity which controls, is controlled by, or is
under common control with Buyer, (iv) a limited liability company in which Buyer is a member,
or (v) any corporation or other entity with which Buyer is otherwise affiliated. Except as
provided above with respect to Affiliates, no assignment shall be to an assignee whose business
purpose has not been approved by prior written action of the Board of Directors of Seller and, as
necessary, the City Council for the City of Port Arthur, Texas. Seller shall, upon written request
from Buyer, execute a Deed directly in favor of Buyer's assignee.
8.8 Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
8.9 Broker Fees. Each party represents and warrants to the other that it has not
engaged any agent or broker with respect to this transaction. No other person is entitled to a
broker's commission or fee as a result of the purchase and sale of the Property. Each party
agrees to indemnify and hold the other party harmless from and against any loss, cost and
expense, including attorneys' fees, which the other party shall suffer by reason of the breach of
the foregoing representation and warranty by the representing and warranting party.
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8.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
8.11 Time. Time is of the essence of this Agreement.
8.12 Attorneys' Fees. In the event of any proceeding brought by either party to
enforce the terms of or arising out of this Agreement, the prevailing party shall be entitled to
recover all costs and expenses incurred in connection therewith, including reasonable attorneys'
fees.
8.13 Cooperation. Each party hereto will, upon the reasonable request of the other
party, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered,
such further instruments and documents as may be reasonably necessary in order to fulfill the
intents and purposes of this Agreement.
8.14 IRC §1445. Buyer's performance hereunder is conditioned upon Seller providing
Buyer at close of escrow with all documentation required by Internal Revenue Code Section
1445 to assure Buyer that Seller is not a"foreign person" as that term is used in Section 1445, or
in the alternative, if Seller is a "foreign person," to assure that all steps have been taken so that
Buyer will not be liable for payment of any taxes due on the proceeds of the sale.
8.15 Exchange. The parties, or either of them, shall have the right to secure a trade or
exchange of properties of like kind of the parties' respective choices (pursuant to Section 1031 of
the Internal Revenue Code as amended), as long as the obligations imposed on the other party
shall not be greater than the terms and conditions of this Agreement, nor shall such obligations
delay the Closing Date beyond that allowed by this Agreement. Nothing in this Article 8.15 shall
require either party to take title to any other real property as part of its obligation to cooperate in
any such trade or exchange.
8.16 Entire Agreement. This Agreement constitutes and contains the entire
agreement of the parties with respect to the subject matter hereof and thereof, and supersedes any
and all other prior negotiations, correspondence, understandings and agreements respecting the
subject matter hereof and thereof. This Agreement is executed without reliance upon any
representation by any party hereto except as expressly set forth herein. This Agreement may not
be changed orally but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is sought.
8.17 Computation of Time. If the expiration date of any period of time for
performance hereunder falls on a Saturday, Sunday or legal holiday, then, in such event, the
expiration date of such period of time for performance shall be extended to the next business
day.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement:
SELLER:
Johnscorp International, Inc.
By: Date: , 2018
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BUYER:
City of Port Arthur Section 4A Economic Development Corporation
By: Date: , 2018
President
By: Date: , 2018
Secretary
ESCROW HOLDER:
Attn:
Telephone:
E-mail:
By: Date Received: , 2018
Title:
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Exhibit"A"
Legal Description
The South Ninety-five feet of Lots Numbered Thirteen through Twenty-four
(S. 95' of 13 through 24) in Block Number One Hundred Forty (140) of the
City of Port Arthur, Jefferson County, Texas as the same appears upon the
map or plat thereof, on file and of record in Volume 1, Page 50, Map Records
of Jefferson County, Texas
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Exhibit"B"
Assignment
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Exhibit "C"
Form of Deed
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,YOU MAY REMOVE
OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THE INSTRUMENT THAT
TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE
PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
SPECIAL WARRANTY DEED
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
The Johnscorp International, Inc. ("Grantor") in consideration of the sum of TEN
AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, to Grantor in
hand paid by City of Port Arthur Section 4A Economic Development Corporation
("Grantee") the receipt of which is hereby acknowledged, has GRANTED, SOLD and
CONVEYED, to Grantee, all that certain property situated in the County of Jefferson, State of
Texas, described as follows, to-wit:
That tract of land more fully described on Exhibit "A" attached hereto and made
a part hereof for all purposes(the"Property").
This conveyance is made subject only to the following:
(1) all exceptions, reservations and conveyances of minerals and/or royalties, oil and
gas and/or mineral leases, affecting the above described property, of record in the
Office of the County Clerk of Jefferson County, Texas, to the extent they are still
in effect and relate to the above described property;
(2) taxes on the above described property for 2018 and subsequent years not yet due
and payable; and
(3) [INSERT PERMITTED EXCEPTIONS PER PSA]
TO HAVE AND TO HOLD, the said Property, together with all rights, hereditaments
and appurtenances thereto belonging, unto Grantee, its successors, heirs, and assigns forever.
And Grantor does hereby bind itself, its successors, heirs, executors, administrators, and personal
representatives to WARRANT AND FOREVER DEFEND the title to said Property unto
Grantee, its successors, heirs, and assigns, against every person whomsoever lawfully claiming
or to claim the same or any part thereof,by, through, or under Grantor,but not otherwise.
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When Grantor or Grantee or both of them are more than one (1) person, or when Grantor
or Grantee or both of them are a corporation, limited liability company, partnership, trustee,
administrator, executor, or personal representative, this Deed shall read as though pertinent
verbs, nouns, and pronouns are changed correspondingly, and pronouns of the masculine gender
where used herein shall be construed to include persons of the female sex. When this Deed is
executed by or to or by and to a corporation, limited liability company or partnership, references
to "heirs, executors, administrators, and personal representatives" shall be appropriately
disregarded, and when this Deed is executed by or to or by and to a natural person or persons,
references to "successors" shall be appropriately disregarded.
Grantee has joined in this Deed to evidence Grantee's acceptance of this Deed.
EXECUTED this the day of , 2018.
GRANTOR:
Johnscorp International, Inc.
By:
Attest:
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the day of , 2018, by
on behalf of Johnscorp International, Inc.
Notary Public, State of Texas
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Accepted by GRANTEE:
City of Port Arthur Section 4A
Economic Development Corporation
By:
Attest:
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the day of , 2018, by
and of City of Port Arthur
Section 4A Economic Development Corporation.
Notary Public, State of Texas
GRANTEE'S MAILING ADDRESS:
City of Port Arthur Section 4A
Economic Development Corporation
501 Procter Street
Port Arthur, TX 77640
Escrow Holder shall notify both Seller and Buyer in writing of the"Effective
Date" of this Agreement and deliver copies of the fully executed Agreement
to each.
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