HomeMy WebLinkAboutPR 14881: EDC/SALE OF LAND TO CLAY DEVELOPMENT & CONSTRUCTION, INC.interoffice
MEMORANDUM
To: Mayor, City Council, and City Manager
From: Mark T. Sokolow, City Attorney f~1_ i
Date: November 14, 2008 ~ _`~`"~
Subject: P. R. No. 14881; Council Meeting November 18, 2008
Attached is P.. R. No. 14881 approving the sale of
approximately three (3) acres of land in the City of Port Arthur
Section 4A Economic Development Corporation Business Park to Clay
Development & Construction, Inc. The property will also be
platted, prior to the sale thereof.
MTS:ts
Attachment
cc: Floyd Batiste
Guy Goodson
Ron Arceneaux
z.pr14881 memo
P. R. No. 14881
11/14/08
RESOLUTION NO.
A RESOLUTION APPROVING THE SALE OF
APPROXIMATELY THREE (3) ACRES OF LAND IN THE
CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION BUSINESS PARK TO
CLAY DEVELOPMENT & CONSTRUCTION, INC.
WHEREAS, the City of Port Arthur Section 4A Economic Development Corporation (the
"PAEDC") deems it is the public interest to sell approximately three (3) acres of land in the PAEDC
Business Park to Clay Development & Construction, Inc.; and
WHEREAS, Clay Development & Construction. Inc. plans to construct an office and
wazehouse; and
WHEREAS, the PAEDC Boazd of Directors at its regular board meeting on October 22,
2008; approved the sale of three (3) acres of land in the PAEDC's Business Pazk (the "Spur 93
Business Park") to Clay Development & Construction, Inc.; and
WHEREAS, the total purchase price is $42,500 per acre to be paid in full at closing.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR, TEXAS:
Section L 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 three (3) acres at the Spur 93 Business Park to Clay Development & Construction,
Inc. for $42,500 per acre
Section 3. That the City Council approves the purchase agreement in substantially the
same form as attached, with Exhibit "A' to the agreement being a 3 acre tract. The property shall be
z.pr1488I
platted prior to the sale. The Special Warranty Deed will be in a form to be approved by the City
Attorney and by Guy Goodson.
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 City of Port Arthur. Texas, by the following vote: AYES:
Councilmembers
DELORIS "BOBBIE" PRINCE, MAYOR
ATTEST:
TERRI HANKS, ACTING CITY SECRETARY
APPROVED:
FLOYD BATISTE, EDC CEO
APPROVED AS TO FORM:
~~
MARK T. SOKOLOW, CITY ATTORNEY
IE656347 '
' Page 2
EXHIBIT "A"
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 Clay Development & Construction, Inc., a Texas corporation or its permitted
assignee ("Buyer").
RECITALS:
A. Seller is the owner of certain real property together with all improvements located
thereon, commonly referred to as the City of Port Arthur Section 4A Economic Development
Corporation Business Park adjacent to Highway 93, Port Arthur; Texas (the "Business Park").
B. Seller desires to sell to Buyer and Buyer desires to buy approximately three (3.0)
acres, surface only without minerals within the Business Park as more particularly described on
Exhibit "A" attached hereto (the "Property") upon the terms and subject to the conditions
contained herein..
' NOW. THEREFORE, in consideration of the promises, covenants, conditions and
agreements contained herein; and for other goon and valuable consideration, the receipt and
sufficiency of which 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 any
improvements located thereon; shall be Forty-Two Thousand Five Hundred and no/100 Dollazs
($42,500) per acre. The exact acreage on the Survey obtained by Buyer shall be multiplied by
$42,500 to obtain the purchase price (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 DfnOSlt. Within Five (5) days of the Effective Date, Buyer shall deposit with
First American Title Company-Joe Deshotel, 505 Orleans Street, Suite 105, Beaumont, Texas
77701, (409) 212-1400 ("the Escrow Holder") a cash deposit, which shall be deposited into an
interest-bearing account, in the amount of Five Thousand and 00/100 Dollazs ($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 Deposit. 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 if Buyer elects to terminate this Agreement pursuant to any
of the contingencies or conditions set forth herein. _
1.4 Closine 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 aze provided for in this Agreement or as are necessazy 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.
1.5 Escrow Instructions. Seller and Buyer shall deliver to the Escrow Holder an
executed copy of this Agreement which. shall constitute instructions to Escrow Holder. If
required by Escrow Holder, Buyer and Seller shall execute printed form escrow instructions as
.may be used by Escrow Holder including any mutually acceptable modifications thereto (the
"Escrow Instructions") to which may be attached to an executed copy of this Agreement and
which together shall constitute Instructions to the Escrow Holder. If any of the provisions of
this Agreement conflict with the Escrow Instructions, this Agreement shall govern and control.
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 deleted or considered of no force and effect.
ARTICLE 2
PRECLOSING MATTERS
2.1 Delivery of Due Diligence Materials. On or before fifreen (IS) days following
the Effective Date, 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); any structural, seismic and
geological investigations and reports; any environmental investigations and reports as to the
Property; the Covenants & Restrictions (C&R`s) as amended for the Business Park; and any
agreements (including, but not limited to, service and maintenance agreements) relating to the
operation, use and maintenance of the Property for which Buyer will be required to assume any
responsibility or liability afrer the Closing Date.
2.2 Survey. 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 azea of the Property to the nearest one-thousandth (.001) of an acre
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(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
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 such 30 day period (or which Buyer shall have approved or waived affirmatively)
shall be deemed to be "Permitted Exceptions."
2.4 Feasibility Period; Rieht of Entrv and Indemnification.
2.4.1. Buyer and its agents shall have thirty (30) days after the Effective Date 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"). 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) (the "Additional Deposits") with the Escrow Holder for each
extension exercised. The Additional Deposits; if any, shall be treated in the same fashion as the
Deposit. i_
2.4.2. 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. IN
ADDITION, BUYER SHALL IMMEDIATELY REPAIR ANY PHYSICAL DAMAGE TO
THE PROPERTY ARISING OUT OF THE TESTS.
2.5 Zonin¢. ~If the Property zoning classification is not proper in order to build and
operate an office/wazeliouse (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.
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2.6 PROPERTY CONDITION. NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, BUYER ACKNOWLEDGES
AND AGREES THAT SELLER HAS MADE 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. 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.
2.7 Covenants and Restrictions. .Buyer has received and read the Covenants and
Restrictions for the Port Arthur Economic Development Corporation Business Pazk, recorded in
the Public Records of Jefferson County, Texas. Further, Buyer has reviewed all requirements of
the City of Port Arthur, Texas for construction standazds for improvements including the Facility
on the Property including but not limited to requirements of the City of Port Arthur, Texas for
compliance with the Americans with Disability Act and improvements related thereto.
2.8 Deposit Non-Refundable. Upon satisfaction of all of the conditions described in
Article 2 of this Agreement, Buyer's Deposit shall become non-refundable (except in the event
of a Seller default).
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Z•9 Optional Termination. In addition to the rights specified in Articles 2 and 3 of
this Agreement, Buyer shall have the right to terminate this Agreement for any reason within
thirty (30) days from the Effective Date with a refund of the Deposit.
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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, Escrow Holder shall be ready, willing and
able to issue to Buyer or Buyer's assignee its ALTA or CLTA 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, tr the Permitted
Exceptions, (iii) any other matters to which Buyer shall agree in writing. ( )
3.2 Assignment. At the Closing, Seller shall assign all of Seller's right, title and
interest in and to any leases 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 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 Aaprovals. 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.
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-three (3) business days nor more than fifteen
(IS) business days following the satisfaction and/or waiver by Buyer of all conditions described
in Articles 2 and 3 of this Agreement.
4.3 Escrow Instructions. The parties agree that this Agreement shall serve as
Escrow Instructions to Escrow Holder for the transactions contemplated hereunder, and by
delivery of this Agreement to Escrow Holder, hereby instruct Escrow Holder to open and
complete Escrow and Closing in accordance with the terms hereof. Buyer and Seller shall
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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. Buyer and Seller shall execute and deliver such additional Escrow
Instructions to Escrow Holder as Escrow Holder may reasonably require, provided that such
instructions are consistent with this Agreement.
4.4 Prorations. Assessments and real property taxes shall be prorated between Buyer
and Seller as of the Closing Date.
4.5 Closine Costs and Charges. Buyer shall pay for Standard Owner's Policy of
Title Insurance, any County or City transfer taxes 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 D_ed. 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
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 and assessments not yet due and payable, and any other
matters to which Buyer shall. agree in writing. The form of the Specia] 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 6
REPRESENTATIONS AND COVENANTS OF SELLER
Seller represents to the 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 Authority. No further authorization, whether corporate, partnership, individual
or otherwise is necessary or required as a condition precedent to Seller entering- into this
Agreement or performing its obligations hereunder, except for the consent of the City of Port
Arthur, which is required.
6.2 Municr_pa~. Seller has no knowledge of and has not received any notice of
any municipal code violation enforceable by the City of Port Arthur, Texas.
6.3 Accuracy of Documents. To the best of Selleis 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.
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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 Sellei s knowledge, there has been no use, dischazge,
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 ~=ith
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 Hazazdous Materials Table (49 CFR 172.101) as
amended from time to time. Further Seller agrees that it will not dischazge, 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 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 Agreements. 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 aze 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, except as may be disclosed in the Title Commitment or otherwise included in the Due
Diligence Materials.
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
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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 Closine 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 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 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 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 punt
font.
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 prompt-ly 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 RETAIN; AS SELLER'S SOLE AND
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Page 9
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.
ARTICLE 8
MISCELLANEOUS
8.1 MerEer. 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: Clay Development & Construction, Inc.
Attn: Charlie Christ
1726 Augusta, Suite 100
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Houston, Texas 77057
Telephone: (713) 789-2529
Facsimile: (713) 782-3755
Email: cchristna,claydevelopment.com
Seller at: Floyd Batiste, CEO
Port Arthur Section 4A Economic Development Corp.
4173 39'h Street
Port Arthur, TX 77640
Telephone: (409) 963-0579
Facsimile: (409) 962-4445
E-mail: fbatiste(a~paedc.ore
Guy N. Goodson, EDC Attorney
Germer Gertz, LLP
P. O. Box 4915
Beaumont, Texas 77704
Telephone: (409) 654-6730
Facsimile: (409) 835-2115
E-mail: ~¢oodsonnu,eermer.com
Escrow Holder at: First American Title Company
Attn: Joseph Deshotel
505 Orleans Street, Suite 105
Beaumont, Texas 77701
Telephone: (409) 212-1400
Facsimile: (409) 212-1419
E-mail: jddeshotelnu firstam.com
8.3 Authority and Execution. Each person executing this Agreement on behalf of a
party represents and wariants 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.
k653941
Page I I
8.6 Headings. The headings of the various Articles of this Agreement aze 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
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. 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 azising out of this Agreement, the prevailing party shall be entitled to
recover all costs and expenses incurred in connectiomtherewith, 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 necessazy 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
4653941 Page li
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.
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"):
Signatures on next page:
g6539d1
Page I3
SELLER:
City of Port Arthur Section 4A Economic Development Corporation
By:
President
By:
Secretary
BUYER:
Clay Development & Construction, Inc.
By:
President
ESCROW HOLDER:
First American Title Company
Attn: Joseph Deshotel
505 Orleans Street, Suite 105
Beaumont, Texas 77701
Telephone: (409) 212-1400
sy:_
Title:
Date: .2008
Date: , 2008
Date: , 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.
#653941 Page 14
EXHIBIT "A"
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EXHIBIT "B"
TO THE AGREEMENT
A SPECIAL WARRANTY DEED
IN A FORM TO BE APPROVED
BY THE CITY ATTORNEY AND GUY GOODSON