HomeMy WebLinkAboutPR 14673: EDC/PA PARTNERS - SALE OF LAND AT BUSINESS PARK
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MEMORANDUM
To: Mayor; City Council, and City Manager
From: Mark Sokolow, City Attorney r`L~.,/~ ~.~,.p.(r-~
Date: April 18, 2008
Subject: P. R. No. 14673; Council Meeting-April 22, 2008
Attached is P. R. No. 14673 as to the sale of approximately
5.0 acres of land in the City of Port, Arthur Section 4A Economic
Development Corporation Business Park to -Port Arthur Partners,
L.L.C.
MTS:ts
Attachment =
cc: Floyd Batiste
CEO of EDC
Guy Goodson
Attorney for EDC
z.pr19693 memo
P. R. No. 14673
04/18/08 gg/mts
RESOLUTION NO.
A RESOLUTION AS TO THE SALE OF APPROXIMATELY 5.0 ACRES OF LAND
IN THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION BUSINESS PARK TO
PORT ARTHUR PARTNERS, LLC
WHEREAS, the Ciry of Port Arthur Section 4A Economic Development Corporation
deemed it is the public interest to sell approximately 5.0 acres of land in the City of Port
Arthur Section 4A Economic Development Corporation Business Park to-Port Arthur Partners,
LLC; and
WHEREAS, Port Arthur Partners, LLC-plans to construct abuilding-with an office
and warehouse on the approximately five (5.0) acres, as delineated in the Purchase Agreement,
a copy of which is attached hereto in substantially the same form as Exhibit "A"; and
WHEREAS, on 7anuary 23, 2008, the City of Port Arthur Section 4A Economic
Development Corporation Board `of Directors at its regular Board meeting approved the sale of
approximately five (5.0) acres of land in the Ciry of Port Arthur Section 4A Economic
Development Corporation's Business Park (the "Spur 93 Business Park") to Port Arthur
Partners, LLC; and
WHEREAS, [he total. purchase price is $35,500.00 per acre to be paid in full at
closing; and
WHEREAS, the Ciry of Port Arthur approved the sale of the approximately five (5.0)
acres of land in the Ciry of Port Arthur Section 4A Economic Development Corporation
Business Park to Port Arthur Partners, LLC pursuant to Resolution~No. 08-054 read, adopted
and approved on February 12, 2008; and
z.pr19673 edc
WHEREAS, Port Arthur Partners, LLC has requested certain changes in the Purchase
Agreement as set forth in substatitially the form attached hereto as Exhibit "A" for the
purchase. of approximately five (5.0) acres of land in the City of Port Arthur Section 4A
Economic Development Corporation Business Park to Port Arthur Partners, LLC; and
WHEREAS, on March 12, 2008, the City of Port Arthur Section 4A Economic
Development Corporation Board of Directors ratified the sale of approximately five (5.0) acres
of land in the Ciry of Port Arthur Section 4A Economic Development Corporation Business
Park to Port Arthur Partners, LLC pursuant to the Purchase Agreement attached as Exhibit
".A"; and
WHEREAS, the City of Port Arthur Section 4A Economic Development Corporation
_ requests .that the City. Council for the City of. Port Arthur approve the revised Purchase
Agreement attached hereto as Exhibit "A".
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR, TEXAS:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That the City Council of the City of Port Arthur approves the sale of
approximately five (5.0) acres at the Spur 93 Business Park to Port Arthur Partners, LLC for
$35,500.00 per acre in accordance with the terms and conditions of the Purchase Agreement
attached hereto as Exhibit "A" with Port Arthur Partners, LLC to pay the costs of-the survey.,
the title report and the other closing costs and with title to be wnveyed by a Special Warranty
Deed to be approved by the EDC Attorney.
Section 3. That Resolution No. 08-054 is herein repealed.
p617624
Page 2
Section 4. That a copy of the caption of this Resolution be spread upon the Minutes
of the City Council.
READ, ADOPTED AND APPROVED on this " day of A.D.,
2008, at a Meeting of the City Council of the Ciry of Port Arthur, Texas, by the following
vote: AYES:
Councilmembers
NOES:
ATTEST:
DECOKES "BOBBIE" PRINCE, MAYOR
TERRI HANKS ACTING, CITY SECRETARY
APPROVED:
FLOYD BATISTE, EDC CEO
APPROVED AS TO FORM:
~ ~_
MARK T. SOKOLOW, CITY ATTORNEY
fi617624
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EXHIBIT "A"
to the Resolution
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is entered into, and is effective as of
the date the Escrow Holder dates this Agreement as provided herein (the "Effective Date"), by
and between the City of Port Arthur Section 4A. Economic Development Corporation
("Seller") and Port Arthur Partners, LLC, a Texas limited liability corporation or its permitted
assignee ("Buyer").
RECITALS:
A. Seller is the owner of certain real property together with all improvements located
thereon, which is located at or near the City of Port Arthur Section 4A Economic
Development Corporation Business Park.
B. Seller desires to sell to Buyer and Buyer desires to buy approximately 5.0 acres,
surface only without minerals (being a portion of the property described in RECITAL A above
and as more particularly described on Exhibit "A" attached hereto) (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.oPwhich is hereby acknowledged,
the parties hereto agree as follows:
°-ARTICLE 1
PURCHASE PRICE
1.1. Price and Payment. The Purchase Price for the Property, together with all
improvements located thereon, shall be Thirty-Five Thousand Five Hundred and no/100
Dollars ($35,500) per acre. The exact acreage on the Survey obtained by Buyer shall be
multiplied by $35,500 to obtain the purchase price. The Purchase Price, less all other amounts to
be credited towards the Purchase Price, shall be payable to Seller in cash, by certified or bank
cashier's check, or by wire transfer, in full upon closing of the Escrow.
1.2 D CAOSIt. Within Five (5) days of the Effective Date, Buyer shall deposit with
Beaumont Title Company-Joe Deshotel, 275 N. 18'h Street, Beaumont, Texas 77707, (409)
212-1400 ("the Escrow Holder") a cash deposit, which shall be deposited into aninterest-bearing
account, in the amount of Five Thousand-and 00/100 Dollars ($5,000.00) ("the Deposit"). The
Deposit, including interest, shall be applied as a credit against the Purchase Price at the closing
of the Escrow.
1.3 Refund of Deaosit. The Deposit, together with any interest accrued thereon,
shall be fully refundable to Buyer if Seller breaches or defaults in the performance of any of its
obligations under this Agreement or the City of Port Arthur approval is not obtained within thirty
(30) days of the date hereof, or if Buyer elects to terminate this Agreement pursuant to any of the
contingencies or conditions set forth herein.
- 1.4 Closing Transaction. Consummation of the sale provided herein shall take place
on the Closing Date (as herein defined) through the Escrow Holder at its offices in Beaumont,
Jefferson County, Texas 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 conditions precedent as well as covenants.
ARTICLE 2
ERECLOSING MATTERS
2.1 DeGverv of Due Diligence Materials. On or before Fifteen (15) days following
the Effective Date (as noted following signatures on this Agreement), Seller shall deliver to
Buyer the following documents (the "Due Diligence Materials"):
2:1.1. A preliminary title report or.commitment ("Title Commitment") for title
insurance for the Property issued by Escrow Holder,.together with full and complete copies of all
documents identified as exceptions therein.
2.1.2. To the extent such materials are in Seller's-possession or subject to Seller's
' reasonable control, plans and specifications; ALTA Survey(s); all structural, seismic and
geological investigations and reports; all environmental investigations and reports; Reciprocal
Easement Agreement(s); Covenants, Conditions, & Restrictions (CC&R's); and all agreements
provided to Buyer during the Feasibility Period (including, but not limited to, service and
maintenance agreements) relating to the operation, use and maintenance of the Properties for
which Buyer will be required to assume any responsibility or liability after the Closing Date.
2.2 Survev. On or before Sixty (60) days from the Effective Date. Buyer shall cause
to be delivered to both the Escrow Holder and the Seller a current and updated Boundary Survey
of the Property, with Exhibit "A" being conformed hereto, at Buyer's sole cost and expense,
which survey shall be prepared by a registered 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.
2.3 - Title Commitment. Buyer shall have Thirty (30) days after receipt of both the
Title Commitment and Survey within which to object in writing to any exceptions stated in the
Title Commitment or to approve the Title Commitment In the event that Buyer shall so object
to any exceptions, Seller shall have Twenty (20) days. 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 within said period, Buyer, by written notice
to Seller, may do one of the following: (i) terminate this Agreement and be released from all
Page 2
duties and obligations hereunder; 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 within isuch 30 day period (or which Buyer shall have approved oi• waived affirmatively)
shall be deemed to be "Permitted Exceptions." -
2.4 ` Right of Entrv and Indemnification. Buyer and its agents shall have the right to
enter upori 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 shall indemnify, defend and hold Seller harmless from (i) any arid-
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. In
addition, Buyer shall immediately repair any physical damage to the Property arising out of the
Tests.
2.5 Feasibility Period. In addition to the matters covered in Section 2.3 and 3.1 of
'this Agreement, Buyer, shall have the right to terminate this agreement for any reason within
Ninety (90) days from the Effective Date. At its sole option, Buyer shall 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 Thirty (30) additional days the Buyer shall deposit the sum of
Five Thousand and 00/100 Dollars ($5,000.00) as Additional Eamest Money with the Escrow
Holder for each extension exercised. The Additional Earnest Money deposit shall be treated in
the same fashion as the Initial Earnest Money deposit:
If the- Property zoning classification is not proper in order to build and operate an
office/warehouse (hereinafter referred to, as "the Facility"), then Seller shall be.responsible for
changing the existing zoning classification to a .new classification which will allow for the
construction and operation of the Facility. If necessazy, the Feasibility Period-shall be extended
in order to allow the time necessary to obtain any necessary zoning change. Buyer agrees to
cooperate with Seller and to provide such information, take such action(s) and execute such
documents as may be necessary to affect any requisite zoning change.
2.6 PROPERTY CONDITION. EXCEPT AS OTHERWISE PROVIDED
HEREIN, BUYER ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES, .EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES OF HABITABILITY, AND SUITABILITY
-AND FITNESS FOR INTENDED PURPOSE, WITH RESPECT TO ANY ASPECT OF THE
PROPERTY. BUYER IS PURCHASING THE PROPERTY STRICTLY IN "AS IS" "WHERE
IS" CONDITION. BUYER HAS MADE OR WILL MAKE PRIOR TO THE CLOSING ITS
OWN INSPECTION AND INVESTIGATION OF THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, ITS SUBSURFACE, SOIL, ENGINEERING AND OTHER
CONDITION$ AND REQUIREMENTS, AND TO THE PRESENT USE OR OCCUPANCY
OF THE 'PROPERTY. BUYER IS ENTERING INTO THIS AGREEMENT AND
PURCHASING THE .PROPERTY BASED UPON [TS OWN INSPECTION AND
INVESTIGATION AND NOT IN RELIANCE ON-ANY STATEMENT, REPRESENTATION,
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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. ANY ENGINEERING
DATA, SOILS REPORTS, OR'-0THER 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.
2.7 Covenants and'Restrictions. Buyer has read the Covenants and Restrictions for
the Port Arthur Economic Development Corporation Business ,Park, recorded in the Public
Records of Jefferson County, Texas, including but not limited to the restriction that the end user
of the Property shall have constructed its facilities, and said facilities shall be occupied not later
than eighteen (18) months following closing of purchase of the Property by Buyer.
2.8 Deposit Non-Refundable. Upon satisfaction of all of the conditions described
elsewhere in Article 2 and below in Article 3.Sof this Agreement, Buyer's Deposit shall become
non-refundable (except. in the event of a Seller default or failure by the City of Port Arthur to
approve this Purchase Agreement within thirty (30) days of the date hereof) and applicable to the
Purchase Price.
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, Escrow Holder shall be ready; willing and
able to issue to Buyer or Buyer's assignee its ALTA or GLTA form policy of title insurance (or
its nearest equivalent in the jurisdiction where the Property is located) insuring Buyer in the sum
of the Purchase Price 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
Exceptiohs, (iii) any other matters to which Buyer shall agree in writing. _
3.2 Assienment. At the Closirig, Seller shall assign all of Seller's right, title and
interest in and to-any personal property of Seller located at the Property (if any) and used in the
operation and maintenance thereof, and any other agreements entered into between Seller and
Page 4
third parties as may be approved by Buyer pursuant to Article 2 above, and shall deliver the
originals thereof to Buyer.
3.3 Seller's Warranties. 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.
3.4 Governmental Aaarovals. Buyer shall 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 Facility, Buyer shall cooperate with Seller in all respects in obtaining
Final Plat or Replat approval for the Property and in recording the FinaLPlat 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; which approval shall not be unreasonably withheld, conditioned
or delayed and shall be deemed given if Buyer does not object in writing within ten (10) business
days following any request for approval.
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 on a
mutually convenient date and time not less than Fifteen (15} business days nor more than
Thirty (30) business days following the satisfaction and/or waiver by Buyer of all conditions
described in Articles 2 and 3 of this Agreement.
4.3 Prorations. Assessments, seal property taxes shall be prorated between Buyer
and Seller as of the Closing Date.
4.4 Closine Costs and Charees..Buyer shall pay for .a Standard Owner's Policy of
Title Insurance, any County or City transfer taxes [DELETE COUNTY OR CITY
TRANSFER TAXES IF THERE-ARE NONE] 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 customary in Jefferson County, Texas.
ARTICLE 5
TRANSFER OF TITLE AND POSSESSION
5.1 Deed. Seller shall convey to Buyer or to Buyer's assignee at the Closing,. by
Special Warranty Deed, fee simple title to the Property, free and clear of any and all recorded
Page 5
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. The form of the Special Warranty Deed to
be executed by Seller to Buyer is attached hereto as Exhibit "B".
• 5.2 Possession. Seller shall deliver possession of the Property to Buyer on the
Closing Date. _ _ -;;
ARTICLE b
REPRESENTATIONS-AND COVENANTS OF SELLER
Seller represents to thee- best of its knowledge and agrees as follows,- which
representations, warranties and agreements-shall survive the close of escrow and delivery of the
Deed to Buyer:
6.1 Authori No further authorization, whether corporate, partnership, individual
or otherwise is necessary or required as a condition ,precedent Co Seller entering into this
Agreement.or performing its obligations hereunder, except for the consent of the City of Port
' Arthur, which is required to be obtained within ten (10) business days of the date hereof. If
such consent is not obtained within ten (10) business days of the date hereof this Agreement
shall be null and void and all Earnest Money shall be returned to Purchaser.
6.2 .Code Requirement. The Property, including-all improvements located thereon
(if any), complies with all applicable building, health, fire, safety and similar laws, ordinances,
regulations and codes of appropriate federal,.state or local authorities.
• 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 are true in all material respects.
6.4 Pubfic 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.
6.5 .-Litiaation. 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. 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 Prdperty or any part thereof.
6.6 Hazardous Materials: Unsafe Conditions. 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
Page 6
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 ]72.101) 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-furtherw artants that
' to the best of its knowledge, there are no underground storage tanks located on the Property.
6.7 Condition. From the date of Buyer's inspections through Close of Escrow, Seller
will maintain the Property,in the same condition, reasonable wear and tear excepted.
6.8 New Aereements. From and after the date hereof, Seller shall not renew, extend
or enter into any new lease or service or management contract, or other agreement that affects
the use of the Property without the prior written consent of Buyer, which consent shall not be '
unreasonably withheld, conditioned or delayed.
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.
6.1.0 Foreign Person. Seller is not a foreign person or entity under the Foreign
Investment in Real Property Tax Act of`198Q 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. Seller agrees to sign a
Reaffirmation of Sellers Representations and Warranties at Closing.
ARTICLE 7
TERMINATION AND DAMAGES
7.1 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 Earnest Money 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 Earnest
Money designated above is a reasonable approximation thereof. Accordingly, if Buyer
defaults, Seller shall be entitled' to terminate this Agreement and immediately upon such
Page 7
termination by Seller, Escrow Agent..shall pay to Seller, as Seller's sole remedy, the Earnest
Money; 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 [he 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
tunc.
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 facC. 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. SO LONG AS SELLER IS NOT IN DEFAULT AND THE CITY
OF PORT ARTHUR HAS APPROVED THIS TRANSACTION, SELLER AND BUYER
AGREE THAT IF BUYER BREACHES ITS 'OBLIGATIONS HEREUNDER, SELLER
SHALL 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. IIV PLACING THEIR INITIALS IN THE SPACES PROVIDED BELOW, THE
PARTIES CONFIRM THAT THEY HAVE READ, UNDERSTAND AND AGREE TO THIS
PROVISION. .
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BUYER
s --
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.
ARTICLE 8
MISCELLANEOUS
8.1 Merger. Except as otherwise expressly provided.... iir 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•Three (3) business days after being deposited. iri 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 Port Arthur Partners, LLC
P. O. Box 1300
' Deer Park, Texas 77536
Attention: Rhett E. Jackson
Telephone: (713)558-6610
FacsimileE (281) 478-4275
E-mail: rhett.jackson@dashiellcorp.com
Seller at: Floyd Batiste, CEO.
Port Arthur Section 4A Economic Development Corp.
' 4173 39'h Street
Port Arthur, Texas 77640
Telephone: (409) 963-0579
Facsimile: (409) 962-4445
E-mail: fbatiste@paedc.org
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With a copy fo: Pamela S. Strasburger
Campbell & Riggs, P.C.
1980 Post Oak Boulevard, Suite 2300
Houston, Texas 77056
Telephone: (713) 963-7552
# Facsimile: (713) 621-5453
E-Mail: psti'asburger@campbellriggs.com
Guy N: Goodson, EDC Attorney
Germer Gertz, LLP
P. O. Box 4915
Beaumont, Texas 77704
Telephone: (409) 654-6730. '
Facsimile: (409) 835-21.15
E-mail: ggoodson@germer.com
Escrow Holder at: BEAUMONT TITLE COMPANY
Attn: Joseph Deshotet
.275 North 18"' Street
Beaumont, Texas 77707 .
8.3 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 HeadinES. 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 without the prior written consent of Seller. No
Page 10
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 Aithur, 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. Seller disclaims liability for payment of any brokerage fees as to
the transactions specified in this Agreement.
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 Intemal 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 [o the subject matter hereof and thereof, and supersedes any
. and all other prior negotiations, coaespondence, 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
Page 11
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.
IN WITNESS WHEREOF the parties hereto have executed this Agreement and the
Effective Date is the date that the Escrow Holder has received, signed and dated this document
set forth below ("the Effective Date"):
S~natures on next page:
Page 12
SELLER:
City of Port Arthur Section 4A Economic Development Corporation
By: ~S~ ~,H ~ Date: a1.27/v~/ , 2008
Pr i ent
----~
By:~--~ ~
S~~ary
BUYER:
Port Arthur Partners, LLC
By:_ y
-t~resiucii~
t~l~A-~-
ESCROW HOLDER: -
~- Attn:
Telephone:
E-mail:
. sy:
Title:
Date: ~ I a ~ , 2008
Date: ~ r ~^ ~ , 2008
Date Received: , 2008
the "Effective Date"
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.
N601975 _ Page 13
{
EXHIBIT "A"
TO THE AGREEMENT
(THIS IS A COPY OF THE FINAL PLAT TO, THE 'PORT
ARTHUR"BUSINESS PARK DESCRIBING THE LOCATION
IN WHICH PA PARTNERS IS PURCHASING. ONCE A
SURVEY IS COMPLETED, A LEGAL DESCRIPTION WILL
BE ADDED TO THIS EXHIBIT PRIOR TO EXECUTION TO
THE PURCHASE AGREEMENT AND SPECIAL WARRANTY
DEED.)
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EXHIBIT- ••B•• .
TO THE AGREEMENT
Sl?ECIAL WARRANl'Y DEED
STATE OF TEXAS §
§
COUNTY OF JEFFERSON §
The City of Port Arthur Section 4A Economic Development Corporation, a Texas not-for-profit
economic development corporation ("Grantor") in consideration of the sum of TEN~AND'NO/100
DOLLARS 010.00) and other good and valuable consideration, to Grantor in hand paid by Port Arthur
Partners, LLC, a Texas limited liability 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 (the "Property"):
This conveyance is made subject to the following:
(1) easements and rights-of--way appeazing of record in the office of the County Clerk of
Jefferson County, Texas; ^
(2) the right of Grantor and its designees to use and ma;nra;n storm water stub-outs, which
extend a few feet from the South Business Park Drive right-of--way, and serve to
connect the Property drainage system to the drainage system of the- Port Arthur
Economic Development Corporation Business Pazk;
(3) all covenants, .restrictions, and all conditions and 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; .
(4) the treatment or storage of the following is prohibited: '
• hazardous industrial waste, as defined by 30 Texas Administrative Code ("TAC")
§335.1(60) (in accordance with RCRA of 1976 and 40 Code of Federal Regulations
("CFR") Part 261); -,
• hazardous waste, as defimed by 30 TAC §335.1 (62) (in accordance with the federal
Solid Waste Disposai Act, as amended by RCRA, 42 United States Code §§6901 et
seq., as amended) and as determined by the procedures in 30 TAC §335.504;
• hazardous waste constituent, as defined by 30 TAC §335.1(63) (listed in 40 CFR
Part 261, Subpart D or in Table 1 of 40 CFR §261.24); and
• tanks, drums, or containers used for shipping or staring any material that has been
- Iisted as a hazardous constituent in 40 code of Federal Regulations (40 CFR), Pazt
261, Appendix VIII but has not been listed as a commercial chemical product in 40
CFR, §261.33(e) or (t);
(5) taxes.on the above described property for 2008 and subsequent years not yet due and
payable; and
(~ all zoning laws, regulations and' ordinances of municipal and other governmental
authorities, if any, but only to the extent thaz they are still in effect, relating to the above
descnbed property.
Grantor has executed and delivered this Special Warranty Deed with Vendor's Lien and has granted,
bazgained, sold, and conveyed the Property to Grantee, and Grantee has received and accepted this Special
Warranty Deed and has purchased, received, and, accepted the Property, ON AN AS-IS, WHERE. IS
BASIS, WITH ALL FAULTS AND- WITHOUT ANY REPRESENTATIONS OR WARRANTIES
WHATSOEVER, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IT BEING THE INTENTION OF
GRANTOR AND GRANTEE TO EXPRESSLY REVOKE, RELEASE, NEGATE, AND EXCLUDE
ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO; ANY
AND ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES AS TO (i) THE
CONDITION OF THE PROPERTY OR ANY ASPECT THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES
RELATED TO SUITABILITY FOR HABITATION, MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR USE OR PURPOSE; (ii) THE NATURE OR QUALITY OF CONSTRUCTION,
STRUCTURAL DESIGN OR ENGINEERING OF ANY IMPROVEMENTS WHICH ARE PART OF
THE PROPERTY OR WHICH SERVE THE PROPERTY (the "IMPROVEMENTS"); (iii) THE
QUALITY OF THE LABOR OR MATERIAL INCLUDED IN THE IMPROVEMENTS; (iv) THB SOIL
CONDITIONS, DRAINAGE, TOPOGRAPHICAL FEATURES OR OTHER CONDITIONS WHICH
AFFECT THE PROPERTY; (v) THE AREA, -SIZE, SHAPE, CONFIGURATION, LOCATION,
CAPACITY, USE, DEVELOPMENT POTENTIAL; PURPOSE OR OTHER CHARACTERISTIC
CONCERNING OR RELATING TO THE PROPERTY; (v) ANY FEATURES OR CONDITIONS AT
OR WHICH AFFECT THE PROPERTY WITH RESPECT TO ANY PARTICULAR PURPOSE, USE,
DEVELOPMENTAL POTENTIAL, CASH FLOW, OR OTHERWISE; (vi) ALL EXPRESS OR
IMPLIED REPRESENTATIONS OR WARRANTIES CREATED BY ANY AI'FIRMATION OF FACT
OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY; (vii) ANY ENVIl20NMENTAL,
GEOLOGICAL, METEOROLOGICAL, STRUCTURAL OR OTHER CONDITION OR HAZARD OR
THE ABSENCE THEREOF HERETOFORE, NOW, OR HEREAFTER AFFECTING IN ANY
MANNER ANY OF -THE PROPERTY; AND (viii) ALL OTHER ~ EXPRESS OR IMPLIED
WARRANTIES AND REPRESENTATIONS BY GRANTOR WHATSOEVER, EXCEPT SOLELY
THE SPECIAL WARRAN'T'Y OF TITT.E EXPRESSLY SET FORTH IN THIS DEED CONVEYING
TIC PROPERTY TO GRANTEE.
TO HAVE AND TO HOLD, the said Property, together with alI rights, hereditaments and appurtenances
thereto belonging, unto Gramee, 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.
When Grantor or Grantee or both of them aze more than one (T) person, or when Grantor or Grantee or
both of them aze a wtporation, limited liability company,.partnership, trustee, administrator, executor, or
personal representative, this Deed shall read as though pertirtent verbs, nouns, and pronouns aze 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 fin a corporation, limited liability
/602Q57 ~ Pagc 2
company or partnership, references to "heirs, executors,. administrators, and personal representatives" shall
be appropriately disregazded, and when this Deed is executed .by or to or by and to a natural person or
persons, references to "successors" shall be appropriately disregazded.
Gramee has joined in this Deed to evidence Grantee's acceptance of this Deed.
E~L'ilT'ID this the _ day of ,2008.
GRANTOR:
The City of Port Arthur Section 4A Economic
` Development Corporation
By.
Presidem
sy:
,Secretary
Accepted by GRANTEE:
Port Arthur Partners, LLC
. sy: '
sy:
~~7 Page 3
1 ,
STATE OF TEXAS §
COUNTY OF JEFFERSON §
.This instrument was acknowledged before me on the day of 2008, by
,President of the City of Port Arthur Section 4A Economic Development Corporation,
a Texas not-for-profit corporation, on behalf of such corporation. -
Notary Public, State of Texas
STATE OF TEXAS § -
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the day of 2008, by
Secretary of the City of Port Arthur Section 4A Economic Development
Corporation, a Texas not-for-profit corporation, on behalf of such corporation.
Notary Public, State of Texas
NbOlOS7 ~ h8e 4
STATE OF TEXAS §
§ -
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the _ day of 2008, by
of Port Arthur Partnezs, LLC, on behalf of such corporation. ,
t Notary Public, State of Texas
STATE OF TEXAS §
§ .
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the _ day of 2008, by
of Port Arthur Part~rs, LLC, on behalf of such corporation.
GRANTEE'S MAILING ADDRESS:
Notary Public, State of Texas
p602057 - PaB<5