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HomeMy WebLinkAboutPR 14368: EMBREE ASSET GROUPinteroffice MEMORANDUM To: Mayor, City Council, and City Manager From: Mark T. Sokolow, City Attorney /~~----- Subject: P. R. No. 14368; September 11, 2007 Council Meeting Date: September 7, 2007 Attached is P. R. No 14368 as it pertains to approving a Purchase Agreement between the City of Port Arthur Section 4A Economic Development Corporation and Embree Asset Group, Inc. MTS:ts Attachment cc: Director of Finance VIA FACSIMILE (409) 962-4445 Floyd Batiste CEO EDC VIA FACSIMILE (512) 819-4757 Regina A. Hallmark Development Administrator EMBREE ASSET GROUP, INC. 4747 Williams Drive Georgetown, TX 78633 z .pr14368 memo P. R. No. 14368 09/07/07 ts RESOLUTION NO. A RESOLUTION AS IT PERTAINS TO APPROVING A PURCHASE AGREEMENT BETWEEN THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION AND EMBREE ASSET GROUP, INC. WHEREAS, the Board of Directors of the City of Port Arthur Section 4A Economic Development Corporation authorized a Purchase Agreement between the City of Port Arthur Section 4A Economic Development Corporation and Embree Asset Group, Inc; and WHEREAS, the Embree Asset Group, Inc. desires to buy approximately 2.607 acres of land at the Business Park for $92,548.50; and WHEREAS, the ultimate use of the 2.607 acres of land at the Business Park will be a lease by Embree Asset Group, Inc. to RSC, who will be the tenant; and WHEREAS, RSC will be providing equipment rental to the public; and WHEREAS, of Directors at their September 5, 2007 Meeting, the same form as attached hereto as Exhibit the Purchase Agreement was approved by the EDC Board in substantially and WHEREAS, the EDC Board of Directors now desire to present the Purchase Agreement to the City Council for approval. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS: z .pr14368 Section 1. true and correct. Section 2. That the facts and opinions in the preamble are That the Purchase Agreement between the City the Business Park substantially the Section 3. of Port Arthur Section 4A Economic Development Corporation and Embree Asset Group, Inc. to purchase approximately 2.607 acres in for $92,548.50 is herein approved in same form as attached hereto as Exhibit "A". 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., 2007, at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor Councilmembers NOES: ATTEST: CITY SECRETARY APPROVED AS TO FORM: CITY ATTORNEY MAYOR z .pr14368 APPROVED FOR ADMINISTRATION: CITY MANAGER z.pr14368 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 Embree Asset Group, 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, 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 2.607 acres (as described in "RECITALS 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 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 all improvements located thereon, shall be Ninety Two Thousand, Five Hundred Forty Eight Dollars and 50 Cents ($92,548.50) (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 Deposit. Within Five (5) days of the Effective Date, Buyer shall deposit with Beaumont Title (hereinafter "the Escrow Holder") a cash deposit, which shall be deposited into an interest-bearing account, in the amount of Ten Thousand Dollars ($10,000.00) ("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. z.pr14368~urchase a~reement embree asset ~roup_edc 1 ARTICLE 2 PRECLOSING 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"): 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 repons; all environmental investigations and reports; Reciprocal Easement Agreement(s); Covenants, Conditions, & Restrictions (CC&R's); and all agreements (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 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 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 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 Right of Entry and Indemnification. 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 z.pr14368~urchase a~reement_embree asset ~roup eclc 2 shall elect (collectively "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. 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 above and Section 3 below, 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 sam of Five Thousand Dollars ($5,000.00) as Additional Earnest Money with the Escrow Holder for each extension exemised. 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 a (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 necessary, 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 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 in the event of a Seller default) and applicable to the Purchase Price. 2.7. in Exhibit "..~'. Road. A Road will be built and a credit will be obtained, as delineated 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 title to the Property is vested in Buyer, together with z.pr14368~urchase agreement e~ree asset group edc 3 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 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 Approvals. 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 cormection 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 mariner 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 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, 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) days following any request for approval. 3.6 Right of Buyer to Assign Purchase Agreement. Buyer shall have the right to assign this Purchase Agreement to a related entity without the prior approval of Seller. Buyer may not assign this Agreement to any non-related entity or release any liability of terms or conditions set forth in this Agreement without the consent of Seller. The ultimate use of said property shall be initially for an RSC rental service corporation, who will be the tenant. 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 at a mutually convenient date and time not less than Three (3) business days nor more than Fifteen (15) business days following the satisfaction and/or waiver by Buyer of all conditions described in Articles 2 and 3 of this Agreement. z.pr14368~urchase a~reement embree asset ~roup edc 4 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 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. Assessmems, real property taxes and rems (if any) shall be prorated between Buyer and Seller as of the Closing Date. 4.5 Closing Costs and Charges. Buyer shall pay for Standard Owner's Policy of Title Insurance, any County or City transfer taxes, Brokerage Commission further described in Article 4.6 of this Agreement 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 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, currem real property rexes, 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 on the Closing Date. ARTICLE 6 REPRESENTATIONS AND COVENANTS OF SELLER Seller represems 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. z.pr14368_purchase a~reement_embree asset group edc 5 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 are true 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 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 z.pr14368~urchase a~reement_embree asset ~roup_edc 6 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, 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 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. 6.12 The Property and improvements thereon, comply with all applicable ordinances, laws, zoning, regulation and deed restrictions. 6.13 Seller has not received and is not aware of any notices of violations and or notification from the Department of Building m~d Safety, Health Department or applicable Local, State or Federal Authority that may have jurisdiction over the subject property which are requiring work to be done at the property. ARTICLE 7 TERMINATION AND bAMAGES 7.1 Failure of Condition. Should the conditions set forth in Articles 2 and 3 of this Agreement not be satisfied and/or waived in writing on or prior to the Closing Date, or upon breach by Seller of any of its obligations hereunder, or upon the inaccuracy of any of Seller's representations under Article 6, Buyer shall (i) have the right to terminate this Agreement, in which case the Deposit, with interest accrued thereon, shall be refunded to Buyer; or (ii) seek Specific Performance from Seller, in which case Buyer shall have the right to recover from Seller its actual expenses (including legal fees) incurred in securing Seller's performance. 7.2 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 z.pr14368~urchase agreement embree asset group edc 7 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. 7.3 DAMAGES. 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. IN PLACING THEIR INITIALS IN THE SPACES PROVIDED BELOW, THE PARTIES CONFIRM THAT THEY HAVE READ, UNDERSTAND AND AGREE TO THIS PROVISION. BUYER Philip H Annis - President, Embree Asset Group, Inc. SELLER ARTICLE8 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: z.pr14368_purchase agreement_embree asset group edc 8 Buyer at: Philip H. Annis Embree Asset Group, Inc 4747 Williams Drive Georgetown, Texas 78633 Telephone: (512) 819-4714 E-mail: pannis~embreegroup.com Seller at: Floyd Batiste, CEO City of Port Arthur Section 4A Economic Development Corporation 4173 39th Street Port Arthur, TX 77640 Telephone: (409) 963-0579 Facsimile: (409) 962-4445 E-mail: fbatiste~paedc.org Mark T. Sokolow, City Attorney City of Port Arthur 444 4th Street P. O. Box 1089 Port Arthur, TX 77641-1089 Telephone: (409) 983-8126 Facsimile: (409) 983-8124 E-mail: mark~portarthur, net 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. z.pr14368~urchase agreement embree asset group edc 9 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 have the right to assign its rights under this Agreement to an affiliated entity, provided that no such assignment shall release Buyer from its obligations hereunder. 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 Disclosure. The parties acknowledge that the Buyer and/or officers of the Buyer include Texas licensed real estate brokers (collectively "Brokers") acting as principals, and intend to make a profit as a result of this transaction. Seller hereby expressly consents and waives any objection thereto. Nothing in this Agreement shall in any way be construed as a breach of any duty of Brokers, and Seller waives any claim of any conflict or breach of duty arising out of Brokers' participation as principals herein. 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 z.pr14368~urchase agreement embree asset group_edc 10 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 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: z.pr14368_purchase agreement_embree asset group_edc 11 SELLER: CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION By: Date: ,2007 President By: Date: ,2007 Secretary BUYER: EMBREE ASSET GROUP, INC. (A TEXAS CORPORATION) By: Date: ,2007 Philip H. Annis President ESCROW HOLDER: Telephone: E-mail: By: Date Received: ., 2007 Title: 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. z.pr14368~urchase agreement embree asset group_edc 12 EXHIBIT "A" TO THE AGREEMENT EXHIBIT "B" TO THE AGREEMENT If the responsible to specifications property closes, the buyer will be construct a road to City and EDC within 180 days, in the location as described in Exhibit UA", with a one-year warranty to be provided by a contractor. Once completed to City and EDC specifications and accepted by the EDC or by the City, the EDC will pay the buyer $11,731.50.