HomeMy WebLinkAboutPR 18903: SALE OF LAND EDC, BUSINESS PARK TO CLAY DEVELOPMENT & CONSTRUCTION INC. Interoffice
MEMORANDUM
To: Mayor, City Council, City Manager
From: Floyd Batiste, CEO
Date: March 11, 2015
Subject: P. R. No. 18903; Council Meeting of March 17, 2015
ATTACHED IS PROPOSED RESOLUTION 18903
APPROVING THE SALE OF LAND IN THE CITY OF
PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION'S BUSINESS PARK TO
CLAY DEVELOPMENT & CONSTRUCTION INC. FOR A
PRICE OF $52,500 PER ACRE
P. R. No. 18903
February 24, 2015 FB
RESOLUTION NO.
A RESOLUTION APPROVING THE SALE OF LAND IN
THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION'S BUSINESS PARK TO
CLAY DEVELOPMENT & CONSTRUCTION INC. FOR A
PRICE OF $52,500 PER ACRE
WHEREAS, the City of Port Arthur Section 4A Economic Development Corporation
(the "PAEDC") deems it is in the public interest to sell four (4) acres of land in the PAEDC
Spur 93 Business Park (the "Business Park") to Clay Development & Construction Inc.; and
WHEREAS, the PAEDC Board of Directors approved at its February 23, 2015,
special Board meeting, the sale of approximately four (4) acres of land in the Business Park to
Clay Development & Construction Inc. pursuant to the Purchase Agreement attached hereto as
Exhibit "A" and made a part hereof for all purposes (the "Purchase Agreement"); and
WHEREAS, the purchase price per acre is $52,500 to be paid in full at closing, and
the sale of the property shall be pursuant to a Special Warranty Deed.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That the City Council of the City of Port Arthur approves the sale of four
(4) acres of land in the Spur 93 Business Park pursuant to the Purchase Agreement with Clay
Development & Construction Inc. for $52,500 per acre.
Section 3. That a copy of this Resolution shall be spread upon the Minutes of the City
Council.
Mayor
Councilmembers
NOES:
Deloris "Bobbie" Prince, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED:
Floyd Batiste, PAEDC CEO
APPROVED TO :
11°
Guy N. Goodson, PAEDC Attorney
APPROVED AS TO FORM:
Valecia R. Tizeno Citya ttorney
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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, 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 4.0 acres,
surface only without minerals (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.
Seller agrees to waive all surface rights with respect to the Property in the Special
Warranty Deed. In addition, the Special Warranty Deed shall provide that Seller shall not lease
or convey, or join in any lease or conveyance of, any portion of the retained minerals unless such
lease or conveyance contains a waiver by the lessee or grantee, as applicable, of any right to
enter upon the Land for purposes of exploration, production or development of the retained
minerals.
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 Fifty Two Thousand Five Hundred and no/100 Dollars
($52,500) per acre. The exact acreage on the Survey obtained by Buyer shall be multiplied by
$52,500 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 Deposit. Within Five (5) days of the Effective Date, Buyer shall deposit with
Alamo Title Company Attn: Chris Underbrink, 1800 Bering, Suite 150, Houston, Texas 77057,
(713) 986-0725 ("the Escrow Holder") a cash deposit, which shall be deposited into an interest-
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 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 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 Houston,
Harris County, Texas or at such other place Seller and Buyer mutually agree in writing, and
provided, however, that either party may close by mail and need not be physically present at
closing. 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.
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 the 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 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 reports; 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
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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 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 sum of Five
Thousand and 00/100 Dollars ($5,000.00) as Additional Earnest 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
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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 PROPERTY CONDITION. EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH 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. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, 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. AS BETWEEN
BUYER AND SELLER, 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 Harris County, Texas. Further, Buyer has reviewed all requirements of the City of
Port Arthur, Texas for construction standards for improvements 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.
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2.8 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.
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, (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 be solely responsible for 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 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.
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ARTICLE 4
CLOSING
4.1 Escrow. The purchase and sale transaction contemplated by this Agreement shall
be consummated through the Escrow established by the Escrow Holder.
4.2 Closing Date. Closing of the Escrow (the "Closing Date") shall take place on 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.
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. Assessments, real property taxes and rents (if any) shall be prorated
between Buyer and Seller as of the Closing Date.
4.5 Closing Costs and Charges. Seller 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 Harris 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, 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 "C".
5.2 Possession. Seller shall deliver possession of the Property to Buyer on the
Closing Date.
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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 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,
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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 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.
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, which default continues more than
five (5) days following written notice from the other party, in addition to any right or remedy
available hereunder, at law or in equity, the other party 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.
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7.2 Specific Performance. If Seller breaches this Agreement prior to the Closing
and, as a result, the Closing does not occur, Buyer may also enforce specific performance. In
the event Buyer breaches this Agreement and Closing fails to occur, Seller waives the right to
specific performance, and instead agrees to accept the Earnest Money as liquidated damages
hereunder.
7.3 Condemnation and Casualty. If before the Closing, either party receives notice
of any condemnation or eminent domain proceeding, any proceeding in lieu of condemnation
being initiated against the Property, or the damage or destruction of all or a part of any
improvements located at the Property, the party receiving the notice shall promptly notify the
other party in writing of that fact. Buyer may elect to either proceed with the sale of the Property
or to terminate this Agreement within Thirty (30) days from the date that the notice is received.
If Buyer elects to proceed with the acquisition of the Property, then Buyer may, solely at its own
discretion, accelerate the Closing to any time prior to the Closing Date set forth hereinabove. If
Buyer proceeds with the purchase in accordance with the terms of this Agreement, all
condemnation and insurance proceeds shall be paid to Buyer. If any proceeds have not been
collected as of the Closing, then all rights to those proceeds shall be assigned to Buyer at the
Closing.
7.4 DAMAGES. SELLER AND BUYER AGREE THAT IF BUYER BREACHES
ITS OBLIGATIONS HEREUNDER, SELLER SHALL RETAIN, AS SELLER'S SOLE AND
EXCLUSIVE REMEDY, THE AMOUNTS DEPOSITED WITH ESCROW HOLDER
PURSUANT TO THIS AGREEMENT, TOGETHER WITH ANY ACCRUED INTEREST
THEREON AS OF THE TIME OF DEFAULT AS LIQUIDATED DAMAGES, IT BEING
AGREED THAT UNDER ALL THE CIRCUMSTANCES EXISTING AT THE TIME OF
THIS AGREEMENT, THIS PROVISION LIQUIDATING DAMAGES IN THE EVENT OF
THE BUYER'S DEFAULT IS REASONABLE, THE DAMAGES RESULTING TO SELLER
BY REASON OF SUCH BREACH ARE NOW AND THEN WOULD BE DIFFICULT AND
IMPRACTICAL TO DETERMINE AND THAT THE BEST ESTIMATE, BASED ON ALL OF
THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, OF THE
TOTAL DAMAGES THAT SELLER WOULD SUFFER IS AND SHALL BE AN AMOUNT
EQUAL TO THE SUMS DEPOSITED BY BUYER WITH ESCROW HOLDER AS OF THE
TIME OF DEFAULT. IN PLACING THEIR INITIALS IN THE SPACES PROVIDED
BELOW, THE PARTIES CONFIRM THAT THEY HAVE READ, UNDERSTAND AND
AGREE TO THIS PROVISION.
BUYER SELLER
7.5 Waiver. Excuse or waiver of the performance by the other party of any
obligation under this Agreement shall only be effective if evidenced by a written statement
signed by the party so excusing. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver by Seller or Buyer of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach of the same
or any other covenant or condition of this Agreement.
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ARTICLE 8
MISCELLANEOUS
8.1 Merger. Except as otherwise expressly provided in this Agreement, the
representations, warranties and agreements of the parties contained or provided for in this
Agreement shall survive the close of escrow and delivery of the deed to Buyer.
8.2 Notices. Unless otherwise specifically provided herein, all notices, consents,
directions, approvals, instructions, requests and other communications required or permitted by
the terms hereof to be given to any person or entity shall be in writing, and any such notice shall
become effective Five(5)business days after being deposited in the mails, certified or registered,
with appropriate postage prepaid for first-class mail or, if delivered personally, by reputable
overnight courier service, or by facsimile transmission or electronic mail, when received, and
shall be directed to the address of such person or entity set forth below, or at such other address
as either party shall hereafter designate in writing and deliver to the other in accordance with the
provision of this paragraph:
Buyer at: Louis B. "Dee" Sullivan III
Clay Development & Construction, Inc.
5599 San Felipe, Suite 1440
Houston, Texas 77056
Telephone: (713) 789-2529
Facsimile: (713) 782-3755
Email: dsullivan(a�cla_ydevelopment.com
Seller at: Floyd Batiste, CEO
Port Arthur Section 4A Economic Development Corp.
4173 39th Street
Port Arthur, TX 77640
Telephone: (409) 963-0579
Facsimile: (409) 962-4445
E-mail: tbatiste(apaedc.org
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: ggoodson(&,germer.com
Escrow Holder at: Alamo Title Company
Attn: Chris Underbrink
1800 Bering, Suite 150
Houston, Texas 77057
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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 Headings. The headings of the various Articles of this Agreement are for
convenience of reference only and shall not modify, define or limit any of the terms or
provisions hereof or thereof
8.7 Parties in Interest. The terms of this Agreement shall be binding upon, and
inure to the benefit of, the parties to this Agreement and their successors and assigns. Buyer
shall not assign its rights under this Agreement without the prior written consent of Seller;
provided, however, Buyer may assign this Agreement to an affiliate of Buyer without Seller's
consent. Except as permitted above, 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 arising out of this Agreement, the prevailing party shall be entitled to
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recover all costs and expenses incurred in connection therewith, including reasonable attorneys'
fees.
8.13 Cooperation. Each party hereto will, upon the reasonable request of the other
party, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered,
such further instruments and documents as may be reasonably necessary in order to fulfill the
intents and purposes of this Agreement.
8.14 IRC 1445. Buyer's performance hereunder is conditioned upon Seller providing
Buyer at close of escrow with all documentation required by Internal Revenue Code Section
1445 to assure Buyer that Seller is not a "foreign person" as that term is used in Section 1445, or
in the alternative, if Seller is a "foreign person," to assure that all steps have been taken so that
Buyer will not be liable for payment of any taxes due on the proceeds of the sale.
8.15 Exchange. The parties, or either of them, shall have the right to secure a trade or
exchange of properties of like kind of the parties'respective choices (pursuant to Section 1031 of
the Internal Revenue Code as amended), as long as the obligations imposed on the other party
shall not be greater than the terms and conditions of this Agreement, nor shall such obligations
delay the Closing Date beyond that allowed by this Agreement. Nothing in this Article 8.15 shall
require either party to take title to any other real property as part of its obligation to cooperate in
any such trade or exchange.
8.16 Entire Agreement. This Agreement constitutes and contains the entire
agreement of the parties with respect to the subject matter hereof and thereof, and supersedes any
and all other prior negotiations, correspondence, understandings and agreements respecting the
subject matter hereof and thereof. This Agreement is executed without reliance upon any
representation by any party hereto except as expressly set forth herein. This Agreement may not
be changed orally but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is sought.
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:
#1153780 Page 12
SELLER:
City of Port Arthur Section 4A Economic Development Corporation
By: Date: , 2015
President
By: Date: , 2015
Secretary
BUYER:
Clay Development & Construction, Inc.
By: Date: , 2015
Albert W. Clay, III, President
ESCROW HOLDER:
Attn:
Telephone:
E-mail:
By: Date Received: , 2015
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.
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SPECIAL WARRANTY 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 ($10.00) and other good and valuable consideration, to Grantor in hand paid by
Clay Development & Construction, Inc., a Texas 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 in Exhibit A attached hereto and
incorporated herein (the "Property").
This conveyance is made subject to the following:
(1) easements and rights-of-way appearing of record in the office of the County Clerk of
Jefferson County, Texas;
(2) the right of Grantor and its designees to use and maintain 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 Park;
(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 defined by 30 TAC §335.1 (62) (in accordance with the federal
Solid Waste Disposal 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 storing any material that has been
listed as a hazardous constituent in 40 code of Federal Regulations (40 CFR), Part
261, Appendix VIII but has not been listed as a commercial chemical product in 40
CFR, §261.33(e) or (f);
(5) taxes on the above described property for 2015 and subsequent years not yet due and
payable; and
(6) all zoning laws, regulations and ordinances of municipal and other governmental
authorities, if any, but only to the extent that they are still in effect, relating to the above
described property.
Grantor has executed and delivered this Special Warranty Deed and has granted, bargained, 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, EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN THAT CERTAIN PURCHASE AGREEMENT (THE "CONTRACT"), DATED MARCH --
, 2015, PURSUANT TO WHICH THIS DEED IS GIVEN AND ACCEPTED, 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) THE 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; (vi) ANY
FEATURES OR CONDITIONS AT OR WHICH AFFECT THE PROPERTY WITH RESPECT TO
ANY PARTICULAR PURPOSE, USE, DEVELOPMENTAL POTENTIAL, CASH FLOW, OR
OTHERWISE; (vii) ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES
CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE
PROPERTY; (viii) ANY ENVIRONMENTAL, 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 (ix) ALL OTHER EXPRESS OR IMPLIED WARRANTIES AND
REPRESENTATIONS BY GRANTOR WHATSOEVER, EXCEPT SOLELY THE SPECIAL
WARRANTY OF TITLE EXPRESSLY SET FORTH IN THIS DEED CONVEYING THE PROPERTY
TO GRANTEE.
TO HAVE AND TO HOLD, the said Property, together with all rights, hereditaments and appurtenances
thereto belonging, unto Grantee, its successors, heirs, and assigns forever. And Grantor does hereby bind
itself, its successors, heirs, executors, administrators, and personal representatives to WARRANT AND
FOREVER DEFEND the title to said Property unto Grantee, its successors, heirs, and assigns, against
every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through, or
under Grantor, but not otherwise.
Page 2
When Grantor or Grantee or both of them are more than one (1) person, or when Grantor or Grantee or
both of them are a corporation, limited liability company, partnership, trustee, administrator, executor, or
personal representative, this Deed shall read as though pertinent verbs, nouns, and pronouns are changed
correspondingly, and pronouns of the masculine gender where used herein shall be construed to include
persons of the female sex. When this Deed is executed by or to or by and to a corporation, limited liability
company or partnership, references to "heirs, executors, administrators, and personal representatives" shall
be appropriately disregarded, and when this Deed is executed by or to or by and to a natural person or
persons, references to "successors" shall be appropriately disregarded.
Grantee has joined in this Deed to evidence Grantee's acceptance of this Deed.
EXECUTED this the day of , 2015.
GRANTOR:
The City of Port Arthur Section 4A Economic
Development Corporation
By:
President
By:
Secretary
Accepted by GRANTEE:
Clay Development & Construction, Inc.
By:
By:
Page 3
STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the _ day of , 2015, 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 , 2015, 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
Page 4
STATE OF TEXAS §
§
COUNTY OF §
This instrument was acknowledged before me on the day of , 2015, by
of Clay Development & Construction, Inc., on behalf of such
corporation.
Notary Public, State of Texas
STATE OF TEXAS §
§
COUNTY OF §
This instrument was acknowledged before me on the day of , 2015, by
of Clay Development & Construction, Inc., on behalf of such
corporation.
Notary Public, State of Texas
GRANTEE'S MAILING ADDRESS:
Clay Development & Construction, Inc.
Page 5