HomeMy WebLinkAboutPR 19250: EDC, AGREEMENT WITH GERALD CONDON PROPERTIES, LTD Interoffice
MEMORANDUM
To: Mayor, City Council, City Manager
From: Floyd Batiste, CEO ,
Date: January 6, 2016
Subject: P. R. No. 19250; Council Meeting of January 12, 2016
ATTACHED IS PROPOSED RESOLUTION 19250
APPROVING THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION TO
ENTER INTO A PURCHASE AGREEMENT WITH
GERALD CONDON PROPERTIES, LTD. FOR THE
PURCHASE OF A VACANT 141 ACRE TRACT ON JADE
AVENUE NORTH OF FM 365
P. R. No. 19250
12/18/2015 KVM
RESOLUTION NO.
A RESOLUTION APPROVING THE CITY OF PORT
ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION TO ENTER INTO A PURCHASE
AGREEMENT WITH GERALD CONDON PROPERTIES,
LTD. FOR THE PURCHASE OF A VACANT 141 ACRE
TRACT ON JADE AVENUE NORTH OF FM 365
WHEREAS, the City of Port Arthur Section 4A Economic Development Corporation
(the "PAEDC") has developed an approximately 300-acre state of the art business park located at
9555 West Port Arthur Rd. that is currently more than 50% occupied; and
WHEREAS, the PAEDC Board of Directors has found that the purchase of an available
141-acre tract adjacent to the Spur 93 Business Park would allow for positive future economic
growth and new business expansion for the City of Port Arthur; and
WHEREAS, on December 7, 2015, the PAEDC Board of Directors approved the
purchase of the 141-acre tract adjacent to the Spur 93 Business Park from Gerald Condon
Properties, Ltd. for a purchase price of $1,025,250.00 to be paid in full at closing and with
PAEDC and Gerald Condon Properties, Ltd. paying equal halves of the closing costs; and
WHEREAS, the purchase of the property shall be pursuant to a Purchase Agreement
attached hereto as Exhibit "A" (the "Agreement").
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 PAEDC is hereby authorized to enter into a Purchase Agreement with
Gerald Condon Properties, Ltd. for the purchase of a 141-acre tract on Jade Ave. for a purchase
price of$1,025,250.00 with PAEDC and Gerald Condon Properties, Ltd. paying equal halves of
the closing costs and with the title to be conveyed by a Special Warranty Deed pursuant to the
terms of the Agreement.
Section 3. That a copy of this Resolution shall be spread upon the Minutes of the City
Council.
READ, ADOPTED AND APPROVED on this day of A.D., 2016,
at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote:
AYES:
Mayor ,
Councilmembers ,
NOES: .
Deloris "Bobbie" Prince, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED:
Floyd Batiste, PAEDC CEO
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C C
APPROVED AS TO ORM:
Guy N. Goodson, AEDC orney
APPROVED AS TO FORM:
Valecia R. Tizeno, City Attorney
#1248123 Page 3
EXHIBIT "A"
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is entered into, and is effective as of
, 2016 (the "Effective Date"), by and between Gerald Condon
Properties, Ltd., a Texas limited liability company ("Seller") and City of Port Arthur Section
4A Economic Development Corporation, ("Buyer").
RECITALS:
A. Seller controls 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 141.2 acres, surface only
without minerals (as described in "RECITAL A" above and as more particularly described on
Exhibit "A" attached hereto) together with all rights, privileges, servitudes and appurtenances
thereunto belonging or appertaining, including all rights, title and interest of Seller in and to the
streets, alleys, and rights-of-way adjacent to such parcel (collectively, the "Property") from
Seller upon the terms and subject to the conditions contained herein and incorporated by
reference herein as if fully set forth.
C. Seller and Buyer acknowledge that the Property consist of both acreage that will
be subject to development by Buyer and acreage that is encumbered and will not be subject to
development by Buyer. Buyer has agreed to acquire the Property including development and
encumbered areas for the Purchase Price as set forth below.
D. Seller has agreed at or prior the closing to designate with the concurrence, as
required, of mineral interest owners in the Property of a three (3) acre drilling site and a thirty
(30) foot wide road, utility, and pipeline easement as depicted in Exhibit A and described in the
survey for the purposes of ingress and egress at all times and for the purposes of mining, drilling,
exploring, operating and developing said lands for oil, gas and other minerals and removing the
same therefrom, and to acknowledge in the Deed, the waiver of drilling rights on the Property
except within the drill site location.
NOW, THEREFORE, in consideration of the promises contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
ARTICLE 1
PURCHASE PRICE
1.1 Sale and Purchase. Seller shall sell, convey, and assign to Buyer, and Buyer
shall purchase, assume and accept from Seller, for the Purchase Price (defined below), and on
and subject to the terms and conditions herein, indefeasible fee simple title to the Property.
Buyer and Seller agree that the legal description of the Property shall be determined mutually by
Buyer and Seller upon completion of the Survey (defined below). The Property shall be sold,
conveyed, and assigned to Buyer at Closing (defined below) free and clear of all liens except for
the lien of real property taxes not yet due and payable, and subject to the Permitted Exceptions
(defined below).
1.2 Price and Payment. The purchase price for the Property will be One Million
Twenty Five Thousand Two Hundred and Fifty Dollars ($1,025,250.00) ("Purchase Price"). The
Purchase Price is composed of $10,000 per acre for the approximate 95.7 of development
acreage (the "Development Area") and $1,500 per acre for the approximate 45.5 encumbered
area (the "Encumbered Area"), the Development Area and the Encumbered Area are
collectively referred to herein as the "Property ." On this basis, Seller hereby agrees to sell the
Property to Buyer for the Purchase Price, subject to the terms of this Agreement. The Purchase
Price, less all other amounts to be credited towards the Purchase Price and subject to adjustments
and prorations as provided for in Section 4.5, 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.
1.3 Deposit. Within five (5) days of the Effective Date, Buyer shall deposit with
Texas Regional Title, 3195 Dowlen Road, Suite 108, Beaumont, Texas 77706, (409) 861-7300
(the "Escrow Holder" or "Title Company") a cash deposit, which shall be deposited into an
interest-bearing account, in the amount of Five Thousand and 00/100 Dollars ($5,000.00) (the
"Deposit"). The "Deposit" shall mean the amount deposited by Buyer, together will all interest
earned thereon. The Deposit shall be applied as a credit against the Discounted Purchase Price at
the closing of the Escrow.
1.4 Refund of Deposit. The Deposit shall be fully refundable to Buyer if Seller
breaches or defaults in the performance of any of its obligations under this Agreement, or if
Buyer elects to terminate this Agreement pursuant to any provision set forth herein.
1.5 Closing Transaction. Consummation of the sale provided herein (the "Closing")
shall take place on the Closing Date (as herein defined) through the Escrow Holder at its offices
or at such other place Seller and Buyer mutually agree in writing. At or prior to the Closing Date
(as herein defined), each of the parties shall execute and deliver such documents and perform
such acts as are provided for in this Agreement or as are necessary to consummate the
transaction contemplated hereunder. All obligations of either party to be performed at or prior to
the Closing Date are mutually concurrent conditions precedent as well as covenants. Time is of
the essence with regard to the Closing Date.
1.6 Escrow Instructions. Seller and Buyer shall deliver to the Escrow Holder an
executed copy of this Agreement and such additional escrow instructions to Escrow Holder as
each party deems appropriate or as Escrow Holder may reasonably require, provided that such
instructions are consistent with this Agreement (the "Escrow Instructions"). No Escrow
Instruction shall excuse any performance by either Buyer or Seller at the times provided in this
Agreement, extend the Closing Date provided for in this Agreement or provide either Buyer or
Seller with any grace period not provided in this Agreement, and any Escrow Instruction to the
contrary shall be considered of no force and effect.
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ARTICLE 2
PRE-CLOSING MATTERS
2.1 Delivery of Due Diligence Materials. On or before seven (7) days following the
Effective Date, Seller shall deliver to Buyer the following documents (the "Due Diligence
Materials")to the extent such materials are in Seller's possession or subject to Seller's reasonable
control and to the extent such materials relate to the Property and/or any improvements thereon:
plans and specifications; land Survey(s); all structural, seismic, soils, engineering and geological
investigations and reports; all environmental investigations and reports; Reciprocal Easement
Agreement(s); Covenants, Conditions, & Restrictions (CC&R's); any leases, licenses or
occupancy agreements (with any amendments) and all agreements (including, but not limited to,
service and maintenance agreements) relating to the operation, use and maintenance of the
Property.
2.2 Survey. On or before Twenty (20) days from the Effective Date, Buyer shall
obtain and cause to be delivered to both the Escrow Holder and the Seller a current and updated
Category 1A, Condition II survey of the Property, with Exhibit "A" being conformed hereto,
which survey shall be prepared by a Texas licensed professional land surveyor and shall be
certified to Seller and Buyer, and which shall include a metes and bounds legal description of the
Property, a calculation of the land area of the Property to the nearest one-thousandth (.001) of an
acre(together with the number of square feet of area contained therein), and the area, dimensions
and locations of all recorded easements affecting or benefiting the Property(the "Survey").
2.3 Title Commitment. Within Fifteen (15) days of the effective date, Seller shall
provide a current commitment ("Title Commitment") from the Title Company for issuance to
Buyer of a standard Texas form (Form T-1) Owner's Policy of Title Insurance in the amount
calculated at $10,000 per acre for the approximate 95.7 acres of Development Area and $1,500
per acre for the approximate 45.5 acres of the Encumbered Area(the "Title Policy"). Buyer shall
have until twenty (20) days from the Effective Date (the "Title Review Period") to object in
writing to any exceptions stated in the Title Commitment. In the event that Buyer shall so object
to any exceptions, Seller shall have ten (10) days from its receipt of such written objections (the
"Response Deadline") within which to resolve or eliminate such exceptions or to notify Buyer in
writing of its inability or unwillingness to remove such exceptions. In the event Seller shall so
notify Buyer of its inability to unwillingness to resolve or eliminate such exceptions prior to the
Response Deadline, Buyer, by written notice to Seller, may do one of the following: (i)
terminate this Agreement and be released from all duties and obligations hereunder and the
Deposit shall be returned to the Buyer; or (ii) waive such exceptions and proceed with the
transaction contemplated herein. Any exceptions listed in the Title Commitment to which Buyer
shall not object prior to the expiration of the Title Review Period (or which Buyer shall have
approved or waived affirmatively) shall be deemed to be "Permitted Exceptions."
2.4 Right of Entry and Indemnification. From the Effective Date to the Closing
Date, Buyer and its agents shall have the right to enter upon the Property upon reasonable notice
to Seller for the purpose of making such surveys, examinations, soil and engineering tests and
other tests and determinations as Buyer shall elect (collectively "Tests"). Buyer and its
representatives shall have the right to make test borings or to remove samples of materials as
Buyer shall deem appropriate, provided that, in the event Buyer terminates this Agreement and
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fails to close the purchase of the Property, Buyer shall repair at its cost any damage to any of the
Property resulting from the Tests. Buyer shall indemnify, defend and hold Seller harmless from
(i) any and all liabilities, claims, damages and expenses (including attorneys' fees, court costs,
and costs of investigation) arising out of or in connection with the Tests or the entry unto the
Property by Buyer or its agents and (ii) any mechanics' liens on the Property arising from the
Tests.
2.5 Feasibility Period. No later than February 7, 2015 Buyer, at Buyer's expense,
shall complete or cause to be completed inspections of the Property(including all improvements
and fixtures) by inspectors of Buyer's choice. Inspections may include but are not limited to: (i)
physical property inspections including, but not limited to, structural pest control, mechanical,
structural, electrical, or plumbing inspections; (ii) economic feasibility studies; (iii) any type of
environmental assessment or engineering study including the performance of tests such as soils
tests, air sampling, or paint sampling; and (iv) compliance inspections to determine compliance
with zoning ordinances, restrictions, building codes, and statutes (e.g., ADA, OSHA, and others).
Seller shall permit Buyer and Buyer's inspectors access to the Property at reasonable times. If
Buyer determines, in Buyer's sole judgment, that the Property is not suitable for any reason for
Buyer's intended use or is not in satisfactory condition, then Buyer may terminate this contract
by providing written notice of termination and copies of all reports of inspections, within the
time required to complete the inspections, studies, or assessments under this paragraph, and the
Earnest Money shall be refunded to Buyer less the sum of$1,000.00 to be retained by Seller as
independent consideration for Buyer's right to terminate under this paragraph. If Buyer does not
terminate this contract within the time required any objections with respect to the inspections,
studies and assessments under this paragraph shall be deemed waived by Buyer. If this contract
does not close through no fault of Seller, Buyer shall restore the Property to its original condition
if altered due to inspections, studies, or assessments completed by Buyer or Buyer's inspectors.
BUYER WAIVES AND RELEASES ALL CLAIMS AGAINST SELLER FOR INJURY
TO OR DEATH OF PERSONS OR DAMAGE TO PROPERTY ARISING IN ANY WAY
FROM THE EXERCISE OF RIGHTS GRANTED TO BUYER UNDER THIS PARAGRAPH
2.5 OR THE ACTIVITIES OF BUYER OR ITS EMPLOYEES, CONTRACTORS, OR
AGENTS ON THE PROPERTY. BUYER SHALL DEFEND AND INDEMNIFY AGAINST
AND HOLD SELLER HARMLESS FROM ANY AND ALL LOSS, COST, DAMAGE,
EXPENSE OR LIABILITY, INCLUDING ATTORNEYS' FEES, WHATSOEVER ARISING
OUT OF (I) ANY AND ALL STATUTORY OR COMMON LAW LIENS OR OTHER
ENCUMBRANCES FOR LABOR OR MATERIALS FURNISHED IN CONNECTION WITH
SUCH INVESTIGATIONS AS BUYER MAY CONDUCT WITH RESPECT TO THE
PROPERTY, OR (II) ANY INJURY TO OR DEATH OF PERSONS OR DAMAGE TO
PROPERTY OCCURRING IN, ON OR ABOVE THE PROPERTY AS A RESULT OF SUCH
INVESTIGATIONS (EXCEPT WHERE ANY SUCH INJURY OR DAMAGE MAY BE
CAUSED BY THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER). THE
FOREGOING OBLIGATION OF DEFENSE AND INDEMNITY SHALL SURVIVE
CLOSING OF THE TRANSACTIONS CONTEMPLATED HEREBY OR TERMINATION OF
THIS AGREEMENT WITHOUT THE CLOSING OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
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2.6 PROPERTY CONDITION. NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, BUYER ACKNOWLEDGES
AND AGREES THAT SELLER MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF
HABITABILITY, AND SUITABILITY AND FITNESS FOR INTENDED PURPOSE, WITH
RESPECT TO ANY ASPECT OF THE PROPERTY. BUYER IS PURCHASING THE
PROPERTY STRICTLY IN "AS IS" "WHERE AS" CONDITION, AND BUYER ACCEPTS
AND AGREES TO BEAR ALL RISKS REGARDING ALL ATTRIBUTES AND
CONDITIONS, LATENT OR OTHERWISE OF THE PROPERTY. BUYER HAS MADE OR
WILL MAKE PRIOR TO THE CLOSING ITS OWN INSPECTION AND INVESTIGATION
OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ITS SUBSURFACE, SOIL,
ENGINEERING AND OTHER CONDITIONS AND REQUIREMENTS, WHETHER THERE
ARE ANY EMINENT DOMAIN OR OTHER PUBLIC OR QUASI-PUBLIC TAKINGS OF
THE PROPERTY CONTEMPLATED, AND ALL ZONING AND REGULATORY MATTERS
PERTINENT TO THE PROPERTY AND TO THE PRESENT USE OR OCCUPANCY OF
THE PROPERTY. BUYER IS ENTERING INTO THIS AGREEMENT AND PURCHASING
THE PROPERTY BASED UPON ITS OWN INSPECTION AND INVESTIGATION AND
NOT IN RELIANCE ON ANY STATEMENT, REPRESENTATION, INDUCEMENT OR
AGREEMENT OF SELLER EXCEPT AS SPECIFICALLY PROVIDED HEREIN. BUYER
AGREES THAT NEITHER SELLER NOR ANYONE ACTING ON BEHALF OF SELLER
HAS MADE ANY REPRESENTATION, GUARANTEE OR WARRANTY WHATSOEVER,
EITHER WRITTEN OR ORAL, CONCERNING THE PROPERTY EXCEPT AS
SPECIFICALLY SET FORTH HEREIN, IN THE INCENTIVE AGREEMENT OR THE
DOCUMENTS DELIVERED BY SELLER AT CLOSING. ANY ENGINEERING DATA,
SOILS REPORTS, OR OTHER INFORMATION THAT SELLER OR ANY OTHER PARTY
MAY HAVE DELIVERED TO BUYER IS FURNISHED WITHOUT ANY
REPRESENTATION OR WARRANTY WHATSOEVER. SELLER SHALL HAVE NO
RESPONSIBILITY, LIABILITY OR OBLIGATION SUBSEQUENT TO THE CLOSING
WITH RESPECT TO ANY CONDITIONS, INCLUDING, WITHOUT LIMITATION,
ENVIRONMENTAL CONDITIONS, OR AS TO ANY OTHER MATTERS WHATSOEVER
RESPECTING IN ANY WAY THE PROPERTY, AND BUYER HEREBY RELEASES
SELLER, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS WITH RESPECT TO
SUCH CONDITIONS, EXCEPT FOR ANY MATTERS OF FRAUD OR KNOWING
MISREPRESENTATION. THIS DISCLAIMER SHALL BE STATED IN THE DEED AND
GRANTEE SHALL JOIN IN THE EXECUTION OF THE DEED TO EVIDENCE ITS
ACCEPTANCE AND ACKNOWLEDGMENT OF THE TERMS.
2.7 Deposit Non-Refundable. Upon satisfaction of all of the conditions described
elsewhere in Article 2 and below in Article 3.5 of this Agreement, Buyer's Deposit shall become
non-refundable (except as specifically set forth in this Agreement or in the event of a Seller
default) and applicable to the Purchase Price.
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ARTICLE 3
CLOSING CONDITIONS
The obligation of Buyer to purchase the Property is subject to the satisfaction or waiver
by Buyer of the conditions set forth below, which conditions are for the sole benefit of Buyer and
which may be waived, in whole or in part, by Buyer:
3.1 Title. On or before the Closing Date, the Title Company shall be ready, willing
and able to issue to Buyer or Buyer's assignee the Title Policy insuring Buyer in the amount
calculated at the rate set forth in Article 2.3 above that fee simple title of the surface only to the
Property is vested in Buyer, together with such endorsements as Buyer may reasonably require
and subject only to (i) liens for then-current real property taxes, bonds and assessments not
delinquent, (ii) the Permitted Exceptions, (iii) any other matters to which Buyer shall agree in
writing.
3.2 Assignment. At the Closing, Seller shall assign to Buyer all of Seller's right, title
and interest in and to any contracts, leases, permits and warranties specifically identified and
relating to the Property which Buyer wishes to assume pursuant to an Assignment of Contracts,
Permits and Warranties in the form attached hereto as Exhibit "C" (the "Assignment").
3.3 Seller's Warranties and Covenants. On the Closing Date, Seller shall not be in
material breach of any of Seller's warranties and representations set forth in Article 6 below. All
covenants to have been performed by Seller before or at Closing shall have been satisfied.
3.4 Governmental Approvals. Seller acknowledges that Buyer must secure the
approval of the City of Port Arthur, Texas (the "City") for execution by Buyer of this Agreement
and authorizing the funding of the Purchase Price.
3.5 Subdivision. Buyer's obligation to close shall be subject to obtaining a Final Plat
or Replat of the Property which is acceptable to Buyer. Seller shall cooperate with Buyer in all
reasonable respects in obtaining Final Plat or Replat approval for the Property and in recording
the Final Plat or Replat. All costs of the platting process will be paid by the Buyer.
3.6 Condition of Property. There shall have been by Closing no material adverse
change in the condition of the Property or any elements of the Property from the dates of the
inspections conducted in satisfaction of the conditions of this Agreement or in the building,
subdivision, or other laws, ordinances, rules, or regulations applicable to the Property from the
date of satisfaction of the conditions set forth herein until Closing.
3.7 Drilling Site. Seller shall without cost or expense to Buyer, secure the location of
a three (3) acre drilling site and a location as approved by Buyer and/or shall secure a release of
surface drilling rights on the balance of the Property from the mineral interest owners and shall
convey title to the Property with due notice that drilling rights have been waived for the
Property, save and except for in or on the three(3) acre drill site (the "Drilling Site").
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ARTICLE 4
CLOSING
4.1 Escrow. The purchase and sale transaction contemplated by this Agreement shall
be consummated through the Escrow established by the Escrow Holder.
4.2 Closing Date. Closing of the Escrow (the "Closing Date") shall take place in the
offices of the Escrow Holder on or before February 23, 2016.
4.3 Escrow Instructions. The parties hereby instruct Escrow Holder to open and
complete Escrow and Closing in accordance with the Escrow Instructions. Buyer and Seller shall
deposit with Escrow Holder in a timely fashion all funds, documents, supplemental instructions
and instruments necessary to consummate the transactions contemplated by this Agreement prior
to the Closing Date.
4.4 Closing Deliveries. At the Closing the following, which are mutually concurrent
conditions, shall occur:
4.4.1 Buyer, at its expense, shall deliver or cause to be delivered to Seller the
following:
(a) the Purchase Price, subject to the Earnest Deposit and adjustments
and prorations as provided herein, in funds available for immediate
value in Seller's accounts;
(b) evidence satisfactory to Title Company that the person(s)
executing the closing documents on behalf of Buyer have full
right, power, and authority to do so; and
(c) such other documents as may be reasonably requested by the Title
Company in accordance with this Agreement, or as are customarily
executed in the county in which the Property is located to
effectuate the conveyance of property similar to the Property.
4.4.2 Seller, at its expense, shall deliver or cause to be delivered to Buyer the
following:
(a) a general warranty deed in the form attached hereto as Exhibit
"D" (the "Deed"), fully executed and acknowledged by Seller, and
otherwise in recordable form as provided in Section 5.1;
(b) Seller's certificate that the representations and warranties
contained in Section 6 hereof are true and correct as of the Closing
Date;
(c) evidence satisfactory to Buyer and Title Company that the
person(s) executing and delivering the closing documents on
behalf of Seller have full right, power and authority to do so;
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(d) a certificate meeting the requirements of Section 1445 of the
Internal Revenue Code of 1986, executed and sworn to by Seller;
(e) such other documents as may be reasonably requested by the Title
Company in accordance with this Agreement, or as are customarily
executed in the county in which the Property is located to
effectuate the conveyance of property similar to the Property; and
(f) designation of Drilling Site.
4.5 Closing Costs and Charges. Seller shall pay for Standard Owner's Policy of
Title Insurance and half of Escrow Fees. Buyer shall pay for any extended Title Policy
Endorsements and half of Escrow Fees. Any and all other charges shall be paid as set forth in
this Agreement or if not specified herein as customary in Jefferson County, Texas.
ARTICLE 5
TRANSFER OF TITLE AND POSSESSION
5.1 Deed. Seller shall convey to Buyer or to Buyer's assignee at the Closing, by the
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.
5.2 Possession. Seller shall deliver possession of the Property to Buyer free and clear
of the occupancy or possessory rights of all others save and except the Grazing Lease, on the
Closing Date.
ARTICLE 6
REPRESENTATIONS AND COVENANTS OF SELLER
Subject to §2.6 above, Seller represents and warrants and covenants as follows, which
representations, warranties and covenants shall survive the Close of Escrow and delivery of the
Deed to Buyer:
6.1 Authority. Seller has full right, power and authority to execute and deliver this
Agreement and to consummate the purchase and sale transactions provided herein on the closing
date. 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.
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.
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6.3 Accuracy of Documents. To the best of Seller's knowledge, Seller represents
that all of the documents, information and records provided to Buyer by Seller in connection
with the transaction contemplated herein, including the Due Diligence Materials, are true and
complete in all material respects.
6.4 Public Improvements; Condemnation. Other than matters recorded in the
public record and listed in the Title Commitment, Seller knows of no intended or contemplated
public improvements or condemnation or of any condition of the land that will frustrate or
interfere with Buyer's intended use of the Property. To the best of Seller's knowledge the
Property satisfies all federal, state, and local statutes, ordinances and regulations.
6.5 Litigation. To the best of Seller's knowledge, there are no claims, administrative
actions or lawsuits, pending or threatened, against Seller relating in any manner to the Property,
or on account of the surface or subsurface physical characteristics of the Property. To the best of
Seller's knowledge, there are no violations, threatened or pending, of any local, state or federal
law or regulation affecting the Property and there are no pending or contemplated assessments,
eminent domain, condemnation or other governmental takings of the Property or any part
thereof
6.6 Hazardous Materials; Unsafe Conditions. Except as otherwise disclosed to
Buyer by Seller, Seller has received no notice from any local, state or national governmental
entity or agency or other source of any hazardous waste condition existing or potentially existing
with respect to the Property. To the best of Seller's knowledge, there has been no use, discharge,
release, generation, storage or disposal of in, on, or under the Property of any hazardous waste,
toxic substances or related materials ("Hazardous Materials") except in accordance with
applicable law. For the purposes of this representation and warranty, Hazardous Materials shall
include but shall not be limited to, any substance, material, or waste which is or becomes
regulated by any local governmental authority, the State in which the Property is located, or the
United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) as
amended from time to time. Further Seller agrees that it will not discharge, release, use, generate,
store or dispose, or permit or suffer the discharge, release, use, generation, storage or disposal of
any Hazardous Materials above, in, on, under or around the Property in violation of any
environmental law prior to the Closing. Seller further warrants that to the best of its knowledge,
there is no underground storage tanks located on the Property.
6.7 Condition. From the Effective Date through Close of Escrow, Seller will
maintain the Property in the same condition, reasonable wear and tear excepted.
6.8 New Agreements. From and after the Effective Date, Seller shall not renew,
extend or enter into any new lease or service or management contract, or other agreement that
affects the Property without the prior written consent of Buyer.
6.9 No Leases. There are no leases, licenses, concessions, or other oral or written
agreements affecting the Property that grant to any person or entity the right of occupancy or use
thereof with the exception of an unrecorded Grazing Lease with Max Fortenberry, as lessee,
dated January 1, 2012, a copy of which is attached hereto.
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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, the other party, in addition to any
right or remedy available hereunder, at law or in equity, shall have the right to terminate this
Agreement by written notice to the defaulting party and Escrow Agent. If any such termination
is the result of default hereunder by Seller, then the Deposit and interest accrued thereon shall be
returned to Buyer. If Buyer defaults hereunder, actual damages to Seller will be difficult to
calculate but Buyer and Seller agree that the amount of the Deposit designated above is a
reasonable approximation thereof. Accordingly, if Buyer defaults, Seller shall be entitled to
terminate this Agreement and immediately upon such termination by Seller, Escrow Agent shall
pay to Seller, as Seller's sole remedy, the Deposit, together with interest thereon, and any other
monies paid on behalf of Seller. Nothing contained in this Section shall prevent Seller from
enforcing Buyer's obligations and liabilities which survive a termination of this Agreement.
7.2 No Specific Performance. If either Buyer or Seller breaches this Agreement
prior to the Closing and, as a result, the Closing does not occur, each party waives the right to
specific performance. Each party agrees that this clause shall constitute an absolute defense to
any action filed by one of the parties hereto against the other for specific performance. This
clause, if asserted by one of the parties hereto against an action for specific performance, shall
enable said party to cause the action for a specific performance to be set aside at any time nunc
pro tunc.
7.3 Condemnation and Casualty. If before the Closing, either party receives notice
of any condemnation or eminent domain proceeding, any proceeding in lieu of condemnation
being initiated against the Property, or the damage or destruction of all or a part of any
improvements located at the Property, the party receiving the notice shall promptly notify the
other party in writing of that 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
#1244140 Page 10
collected as of the Closing, then all rights to those proceeds shall be assigned to Buyer at the
Closing.
7.4 DAMAGES. SELLER AND BUYER AGREE THAT IF BUYER BREACHES ITS
OBLIGATIONS HEREUNDER, SELLER SHALL TERMINATE THIS AGREEMENT AND
RETAIN, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, THE AMOUNTS DEPOSITED
WITH ESCROW HOLDER PURSUANT TO THIS AGREEMENT, TOGETHER WITH ANY
ACCRUED INTEREST THEREON AS OF THE TIME OF DEFAULT AS LIQUIDATED
DAMAGES, IT BEING AGREED THAT UNDER ALL THE CIRCUMSTANCES EXISTING
AT THE TIME OF THIS AGREEMENT, THIS PROVISION LIQUIDATING DAMAGES IN
THE EVENT OF THE BUYER'S DEFAULT IS REASONABLE, THE DAMAGES
RESULTING TO SELLER BY REASON OF SUCH BREACH ARE NOW AND THEN
WOULD BE DIFFICULT AND IMPRACTICAL TO DETERMINE AND THAT THE BEST
ESTIMATE, BASED ON ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF
THIS AGREEMENT, OF THE TOTAL DAMAGES THAT SELLER WOULD SUFFER IS
AND SHALL BE AN AMOUNT EQUAL TO THE SUMS DEPOSITED BY BUYER WITH
ESCROW HOLDER AS OF THE TIME OF DEFAULT. IN PLACING THEIR INITIALS IN
THE SPACES PROVIDED BELOW, THE PARTIES CONFIRM THAT THEY HAVE READ,
UNDERSTAND AND AGREE TO THIS PROVISION.
SELLER AND BUYER AGREE THAT IF SELLER BREACHES ITS OBLIGATIONS
HEREUNDER, BUYER MAY TERMINATE THIS AGREEMENT AND RETAIN, AS
BUYER'S SOLE AND EXCLUSIVE REMEDY, THE LESSER OF $5,000.00 FROM SELLER
OR THE ACTUAL AMOUNT OF EXPENSES PAID TO 3'm PARTIES FOR INSPECTIONS
OF THE PROPERTY CONDITION, 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 SELLER'S DEFAULT IS REASONABLE, THE DAMAGES
RESULTING TO BUYER 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 BUYER WOULD SUFFER IS
AND SHALL BE AN AMOUNT EQUAL TO THE SUMS STATED HEREIN. 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
#1244140 Page 11
Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or
any other covenant or condition of this Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 Merger. Except as otherwise expressly provided 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:
Seller at: Gerald Condon Properties, Ltd.
550 IH-10 South
Beaumont, TX 77707
Telephone: (409) 659-1356
Fax: (409) 842-6884
E-mail: info@GeraldCondonProperties.com
With a copy to: Mike Matthews
Griffin & Matthews
Santa Fe Depot
400 Neches
Beaumont, TX 77701
Telephone: (409) 832-6006
Fax: (409) 832-1000
E-mail: mmatthews@griffinandmatthews.com
Buyer at: Floyd Batiste, CEO
Port Arthur Section 4A Economic Development Corp.
501 Procter, Suite 100
Port Arthur, TX 77640
Telephone: (409) 963-0579
Facsimile: (409) 962-4445
E-mail: fbatiste@paedc.org
Guy N. Goodson, EDC Attorney
Germer PLLC
P. O. Box 4915
Beaumont, Texas 77704
Telephone: (409) 654-6730
#1244140 Page 12
Facsimile: (409) 835-2115
E-mail: ggoodson@germer.com
Escrow Holder at: Texas Regional Title
7980 Anchor Drive, Building 300A
Port Arthur, Texas 77642
Telephone: (409) 861-7300
or
Texas Regional Title
3195 Dowlen, Suite 108
Beaumont, Texas 77706
Telephone: (409) 861-7300
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 to any third party that is not an Affiliate (defined
below) without the prior written consent of Seller. Buyer shall be permitted to assign this
Agreement without the prior written consent of Seller to an Affiliate. For purposes of this
Section, "Affiliate" shall mean (i) a subsidiary of Buyer, (ii) a corporation or other entity into or
with which Buyer has merged or consolidated, or to which substantially all of Buyer's stock or
assets are transferred, (iii) any corporation or other entity which controls, is controlled by, or is
under common control with Buyer, (iv) a limited liability company in which Buyer is a member,
or (v) any corporation or other entity with which Buyer is otherwise affiliated. Except as
provided above with respect to Affiliates, no assignment shall be to an assignee whose business
purpose has not been approved by prior written action of the Board of Directors of Seller and, as
#1244140 Page 13
•
necessary, the City Council for the City of Port Arthur, Texas. Seller shall, upon written request
from Buyer, execute a Deed directly in favor of Buyer's assignee.
8.8 Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
8.9 Broker Fees. Each party represents and warrants to the other that it has not
engaged any agent or broker with respect to this transaction. No other person is entitled to a
broker's commission or fee as a result of the purchase and sale of the Property. Each party
agrees to indemnify and hold the other party harmless from and against any loss, cost and
expense, including attorneys' fees, which the other party shall suffer by reason of the breach of
the foregoing representation and warranty by the representing and warranting party.
8.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
8.11 Time. Time is of the essence of this Agreement.
8.12 Attorneys' Fees. In the event of any proceeding brought by either party to
enforce the terms of or arising out of this Agreement, the prevailing party shall be entitled to
recover all costs and expenses incurred in connection therewith, including reasonable attorneys'
fees.
8.13 Cooperation. Each party hereto will, upon the reasonable request of the other
party, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered,
such further instruments and documents as may be reasonably necessary in order to fulfill the
intents and purposes of this Agreement.
8.14 IRC §1445. Buyer's performance hereunder is conditioned upon Seller providing
Buyer at close of escrow with all documentation required by Internal Revenue Code Section
1445 to assure Buyer that Seller is not a"foreign person" as that term is used in Section 1445, or
in the alternative, if Seller is a "foreign person," to assure that all steps have been taken so that
Buyer will not be liable for payment of any taxes due on the proceeds of the sale.
8.15 Exchange. The parties, or either of them, shall have the right to secure a trade or
exchange of properties of like kind of the parties'respective choices (pursuant to Section 1031 of
the Internal Revenue Code as amended), as long as the obligations imposed on the other party
shall not be greater than the terms and conditions of this Agreement, nor shall such obligations
delay the Closing Date beyond that allowed by this Agreement. Nothing in this Article 8.15 shall
require either party to take title to any other real property as part of its obligation to cooperate in
any such trade or exchange.
8.16 Entire Agreement. This Agreement constitutes and contains the entire
agreement of the parties with respect to the subject matter hereof and thereof, and supersedes any
and all other prior negotiations, correspondence, understandings and agreements respecting the
subject matter hereof and thereof. This Agreement is executed without reliance upon any
representation by any party hereto except as expressly set forth herein. This Agreement may not
#1244140 Page 14
be changed orally but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is sought.
8.17 Computation of Time. If the expiration date of any period of time for
performance hereunder falls on a Saturday, Sunday or legal holiday, then, in such event, the
expiration date of such period of time for performance shall be extended to the next business
day.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement:
BUYER:
City of Port Arthur Section 4A Economic Development Corporation
By: Date: , 2016
President
By: Date: , 2016
Secretary
X1244140 Page l5
SELLER:
Gerald Condon Properties, Ltd.
By: Date: , 2016
ESCROW HOLDER:
Attn:
Telephone:
E-mail:
By: Date Received: , 2016
Title:
#1244140 Page 16
Exhibit"A"
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E
Exhibit "B"
Form of Deed
p I244I40 Nage I
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,YOU MAY
REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY
INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS
FILED FOR RECORD IN THE PUBLIC RECORDS:YOUR SOCIAL SECURITY NUMBER OR
YOUR DRIVER'S LICENSE NUMBER.
SPECIALWARRANTY DEED
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF JEFFERSON §
Gerald Condon Properties, Ltd., a Texas Limited Liability Company, as Grantor,
whose address is 550 Interstate 10 South, Beaumont, Jefferson County, Texas 77707, in con-
sideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable
considerations to it in hand paid by Grantee hereinafter named, the receipt of which is hereby
acknowledged,has GRANTED, SOLD, and CONVEYED and by these presents does GRANT,
SELL and CONVEY unto City of Port Arthur Section 4A Economic Development Corpora-
tion, as Grantee, whose address is 501 Procter, Suite 100, Port Arthur, Jefferson County,
Texas 77640, the tract of land described in Exhibit A which is attached hereto and incorpo-
rated herein by reference for all purposes.
This conveyance is made subject to the following: (a) All prior mineral and/or royalty
reservations or conveyances and mineral leases; (b) All restrictions, covenants, grazing leases,
conditions, rights of way and easements whether or not of record in the office of the County
Clerk of Jefferson County, Texas affecting the Property; (c) All zoning laws, regulations, and
ordinances of governmental authorities; (d)Ad valorem taxes on the Property for the year 2016
and subsequent years not yet due and payable; (e) All taxes and other assessments for prior,
current, or subsequent years arising from change in use or ownership of the Property after the
date of this conveyance; and(f)Riparian rights, if any,of others.
There has been reserved for the benefit of a prior Grantor, its successors, assigns, and les-
sees, the following perpetual easements: (a) a 3-acre drill site as reflected on Exhibit A for the
purpose of drilling, producing, storing, removing,transporting, and otherwise enjoying all oil, gas
and other minerals owned by prior Grantor, its successors and assigns, and (b) a 30-foot wide
easement on and along the North boundary line of the West portion of the property running from
the reserved drill site to the Jade Road Extension for the purposes of road, utility service access
and pipeline to and from the drill site to the Jade Road Extension and for the purpose of construct-
ing, maintaining, repairing, and using a roadway, utility lines and one or more pipelines to
transport production from the drill site. Grantee, on behalf of itself, its successors and assigns,
hereby covenants not to use or permit any use of such easement areas previously reserved
which would prevent or interfere with the use and enjoyment of such easements for the stated
purposes, and Grantee agrees that this covenant shall run with the land conveyed hereby and
inure to the benefit of and be enforceable by the prior Grantor and its successors and assigns.
GRANTOR MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER AS
TO OPERATIVE OR PROPOSED GOVERNMENTAL LAWS AND REGULATIONS (IN-
CLUDING, BUT NOT LIMITED TO, ZONING, ENVIRONMENTAL AND LAND USE
LAWS AND REGULATIONS)TO WHICH THE PROPERTY MAY NOW OR HEREAFTER
BE SUBJECT. GRANTEE ACKNOWLEDGES THAT GRANTEE HAS ACCEPTED THE
PROPERTY ON THE BASIS OF GRANTEE'S OWN REVIEW AND INVESTIGATION OF
THE APPLICABILITY AND EFFECT OF SUCH LAWS AND REGULATIONS AND THAT
GRANTEE ASSUMES THE RISK THAT ADVERSE MATTERS MAY NOT HAVE BEEN
REVEALED BY GRANTEE'S INVESTIGATION.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE,
AND THAT GRANTOR SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY
KIND OR CHARACTER WHATSOEVER, EXCEPT THE SPECIAL WARRANTY OF TITLE
MADE HEREIN, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRE-
SENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE NA-
TURE, QUALIFY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMI-
TATION,THE WATER,SOIL AND GEOLOGY,(B)THE INCOME TO BE DERIVED FROM
THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON,(D)THE COM-
PLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES,
OR ORDINANCES OR REGULATIONS, OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY OR FIT-
NESS FOR A PARTICULAR PURPOSE OF THE PROPERTY,(F)ANY OTHER MATTER
WITH RESPECT TO THE CONDITION OF THE PROPERTY AND SPECIFICALLY DIS-
CLAIMS ANY REPRESENTATIONS REGARDING SOLID WASTE, AS DEFINED BY
THE TEXAS SOLID WASTE DISPOSAL ACT AND THE REGULATIONS ADOPTED
THEREUNDER OR THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULA-
TIONS AT 40 C.F.R., PART 261, OR THE DISPOSAL OR EXISTENCE, IN OR ON THE
PROPERTY, OF ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPRE-
HENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF
1980, AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. GRANT-
EE FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PROPERTY, GRANTEE IS RELYING SOLELY ON
ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY GRANTOR. GRANTEE FURTHER ACKNOWL-
EDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED
WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF
SOURCES AND THAT GRANTOR HAS NOT MADE ANY INDEPENDENT INVESTI-
GATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRE-
SENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFOR-
MATION. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT THE SALE OF
THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS, WHERE IS"
CONDITION AND BASIS WITH ALL FAULTS.
-2-
TO HAVE AND TO HOLD the above described property,together with all and singular
the rights, hereditaments and appurtenances thereto in anywise belonging, and subject to the
reservations herein, unto said Grantee and Grantee's, successors and assigns forever; and Grantor
hereby binds itself, its successors and assigns,to WARRANT and DEFEND all and singular the
title to the above described property unto said Grantee and Grantee's successors and assigns
against every person whomsoever lawfully claiming or to claim the same or any part thereof by,
through, or under said Grantor, but not otherwise, except as to the Reservations from Convey-
ance and the Exceptions to Conveyance and Warranty.
WITNESS my hand this day of , 2016.
GERALD CONDON PROPERTIES,LTD., a Texas
Limited Partnership, Grantor
By: COLLISION& CLASSICS, INC., a Texas
Corporation, General Partner
By:
GERALD CONDON, President
Grantee's Acceptance of Deed
City of Port Arthur Section 4A Economic Development Corporation, Grantee, ac-
cepts the attached Deed and consents to its form and substance. Grantee acknowledges that the
terms of the Deed conform with Grantee's intent and that they will control in the event of any
conflict with any contract Grantee signed regarding the Property described in the Deed.
Dated: , 2016.
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT
CORPORATION
BY
Name:
Title:
-3-
THE STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on this the day of
, 2016,by Gerald Condon,as President of Collision & Classics,Inc.,a Texas
Corporation, as General Partner of Gerald Condon Properties, Ltd., a Texas Limited Liability
Company,on behalf of said Texas Limited Liability Company.
Notary Public, State of Texas
Printed or Typed Name of Notary:
My Commission Expires:
THE STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on this the day of
2016, by
of City of Port Arthur Section 4A Economic Develop-
ment Corporation, on behalf of said City of Port Arthur Section 4A Economic Development
Corporation.
Notary Public, State of Texas
Printed or Typed Name of Notary:
My Commission Expires:
AFTER RECORDING, RETURN TO:
City of Port Arthur Section 4A
Economic Development Corporation
-4-
EXHIBIT A
141.2 acres of land out of Partition Map No. 3,McFaddin Trust in the W. M. McFaddin Survey,Ab-
stract No. 416, City of Port Arthur,Jefferson County, Texas.
BEING 141.2 acres of land out of and a part of Tract 19-C, Partition Map No. 3, McFaddin Trust,
recorded in Volume 8, Page 110,Map Records,Jefferson County,Texas; being part of Tract 19-
C of several tracts of land described in Volume 692, Page 22, Deed Records, Jefferson County,
Texas; said 141.2 acre tract being more fully described by metes and bounds as follows,to wit:
COMMENCING at a 1/2" steel rod found on the West right of way line of a dedicated road named
West Port Arthur Road (a.k.a. Spur 93); said 1/2" steel rod being the Southeast corner of an
amended plat of Port Arthur Economic Development Corporation Business Park Subdivision,
recorded in File No. 2011021212, Official Public Records,Jefferson County,Texas;
THENCE, South 85 deg.,45 min., 09 sec., West(Called North 89 deg., 37 min., 00 sec., West), on
the South line of said Business Park,a distance of 16.83' (Called 16.92')to a 5/8" steel rod found
for the Northeast corner of a 195.1 acre tract of land surveyed this date; having a State Plane
Coordinate of N: 13916815.83,E: 3544616.30;
THENCE, South 86 deg.,34 min.,07 sec.,West,on the South line of said Business Park,a distance
of 3083.49' to a point for corner occupied by a 6" round fence post for the POINT OF BEGIN-
NING on the West right of way line of a dedicated road named Jade Avenue,recorded in File No.
2007005006, Official Public Records, Jefferson County, Texas; said point for corner being the
Northeast corner of the herein described tract; having a State Plane Coordinate of N:
13916631.27,E: 3541538.34;
THENCE, South 03 deg.,25 min., 53 sec.,East,on the West right of way line of said Jade Avenue,
a distance of 2479.89' to a 1/2" steel rod, capped and marked "SOUTEX", set for the Southeast
corner of the herein described tract;
THENCE, South 86 deg., 34 min., 07 sec., West, a distance of 1878.45' passing a 1/2" steel rod,
capped and marked"SOUTEX", set for reference point;continuing for a total distance 2709.15'to a
point for corner on the East bank line of Rhodair Gully; said point for corner being the Southwest
corner of the herein described tract;
THENCE,North 07 deg., 11 min., 16 sec.,East,on the East bank line of said Rhodair Gully, a dis-
tance of 557.35'to a point for corner;
THENCE, North 08 deg., 08 min., 15 sec., East, continuing on the East bank line of said Rhodair
Gully, a distance of 1287.10'to a point for corner;
THENCE, North 02 deg., 07 min., 17 sec., East, continuing on the East bank line of said Rhodair
Gully, a distance of 257.57'to a point for corner;
-5-
THENCE,North 07 deg., 42 min., 50 sec., West,continuing on the East bank line of said Rhodair
Gully,a distance of 228.20'to a point for corner;
THENCE, North 16 deg., 26 min., 55 sec., West, continuing on the East bank line of said
Rhodair Gully, a distance of 192.14' to a point for corner on the South line of said Business Park;
said point for corner being the Northwest corner of the herein described tract;
THENCE, North 86 deg., 34 min., 07 sec., East, on the South line of said Business Park, a dis-
tance of 53.47'passing a 5/8" steel rod found for reference point;having a State Plane Coordinate
of N: 13916491.80, E: 3539212.28; continuing for a total distance of 2330.24' to the POINT
OF BEGINNING and containing 141.2 acres of land, more or less; of which 27.87 acres of land
lies within the Jefferson County,Drainage District No. 7 Hurricane Levee System Easement.
Note: Bearings, distances, coordinates and acreage shown are based on State Plane Coordinate
Grid System, Texas South-Central Zone,NAD 83.
Scale Factor = 0.999915794, Convergence Angle = 02 deg., 26 min., 01 sec. Reference Monu-
ment=NGS AJ8221.
-2-
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Exhibit "C"
Grazing Lease
1!1'_44140 Page 19
GRAZING LEASE
CAPITAL ONE, NATIONAL ASSOCIATION
PRIVATE CLIENT GROUP
STATE OF TEXAS }
COUNTY OF JEFFERSON }
THIS LEASE AGREEMENT made and entered into by and between the undersigned,
hereinafter called Lessor, whether one or more, and Max Fortenberry, hereinafter called
Lessee,whether one or more,
WITNESSETH:
1. GRANTING CLAUSE: Lessor, for and in consideration of the rentals herein
provided, hereby grants, leases and lets unto Lessee, upon the following terms, covenants
and conditions, the following described land together with the improvements thereon,
situated in Jefferson County,Texas to-wit:
As fully described in Exhibit "A"and "8" attached
2. TERM OF LEASE: This lease agreement shall be effective for a term of Five(5)
years beginning the 15' day of January, 2012, and ending the 31' day of December, 2016,
unless sooner terminated under the provisions hereof.
3. USE OF LEASED PREMISES: The leased premises shall be used for Agricultural
Grazing purposes only. Hunting and/or fishing rights are reserved unto Lessor unless
otherwise specified. Property will not be used for any illegal purpose.
4. RENTALS: The rentals to be paid by Lessee to Lessor will be$640.00 per year.
Payable on or before the 1st day of January of each year this lease is in force. Lessee agrees
to comply with all government Farm Services Agency programs.
5. EXPENSES/REPAIRS/MAINTENANACE: Lessee shall have the right to graze all
of the land herein demised at all times. Lessee, at Lessee's own expense, agrees to return
and keep (and at termination hereof, to deliver to Lessor) all improvements on the leased
premises in as good order, condition, and repair as the same was on the date of execution
of this lease, said improvements including but not limited to fences, ditches, roads, and
pens. No permanent improvements (improvement lasting substantially beyond the term
hereof), excluding land leveling, shall be made by Lessee on the leased premises without
the prior written consent of Lessor.
6. MINERAL LEASES/EASEMENTS/RIGHTS-OF-WAY: Lessor grants this lease
subject to all existing oil, gas, and mineral leases, easements and rights-of-way of any kind
over, through, under or across the leased premises, and Lessor grants this lease subject to
all oil, gas, and mineral leases, easements and rights-of-way which may be hereafter
granted. Lessor hereby reserves the right to grant such oil, gas, and mineral leases,
easements and rights-of-way.
7. INDEMNIFICATION/INSURANCE: The Lessee will be required to maintain
minimum General Liability Insurance in the amount of$500,000.00.
Lessee waives and releases all claims against Lessor, and the directors, officers,
employees, agents and trustees of Lessor for injury to or death of persons or damage to
property arising in any way from the exercise of rights granted to Lessee by this license or
the activities of Lessee or its employees or agents on the Premises. Lessee shall indemnify
Lessor and the directors, officers, employees, agents, and trustees of Lessor against and
hold each and all of said indemnities harmless from any and all loss, cost, damage, expense
or liability, including attorneys' fees, and causes of action arising out of Lessee's and
Lessee's invites, employees,agents, and contractor's use or occupancy of and/or operations
upon the leased Premises, included but not limited to the presence, disposal, release,
• threatened release, removal or production of any hazardous substances, solid wastes or
hazards which are on, in, from or affecting any portion of the Leased Premises. In the
event Lessor shall be made a party to any litigation commenced by or against Lessee arising
out of any activities conducted by Lessee, it invites, employees, agents or contractors on or
relating to the Leased Premises,then Lessee shall protect and hold Lessor harmless and pay
all costs, penalties, charges, damages, expenses and attorneys' fees incurred or paid by
Lessor.
Lessee agrees to hold Lessor harmless from any and all claims arising out of
any losses or damages to Lessee though insufficient water supply for watering the crop, or
failure to water the same, all such risks being expressly assumed by Lessee. Lessor shall not
be required to make any improvements of any kind or character on the leased premises
during the term of this lease, Lessee by Lessee's acceptance of this lease hereby waives any
and all claims against Lessor or it's heirs and assigns for damages which Lessee may now or
hereafter suffer from any cause whatsoever while raising crops or grazing livestock on the
leased premises. This indemnity shall apply regardless of whether or not any such damage,
injury, or death is caused by the concurrent negligence of Lessor or Lessor's agent, but in
such event only to the extent of Lessee's comparative negligence.
8. ASSIGNMENT: This lease agreement and Lessee's rights hereunder may not
be assigned in whole or in part by Lessee, nor may Lessee sublet any part of the leased
premises without prior written consent of Lessor.
9. EARLY TERMINATION: This lease agreement may be terminated by either
Lessor or Lessee without cause prior to the end of the term hereof as follows:
(a) Should Lessor sell all or a portion of this property to a third party,
either Lessor or purchaser from Lessor may cancel this lease as to such land effective ninety
(90) days after notice of cancellation to Lessee. Reimbursement by Lessor of the pro-rata
yearly rent will be made if Lessor terminates lease early.
10. BREACH OF TERMS: This lease agreement, including any right of Lessee to
use the allotments of Lessor, may be terminated by Lessor at Lessor's option if:
(a) Lessee fails to make any payments required under this lease agreement
when due and such default is not corrected within ten days of Lessor's written notice to
Lessee thereof, or
(b) Lessee violates any of the provisions of this lease other than for the
payment of money, and such default is not corrected within thirty (30) days of Lessor's
written notice to Lessee thereof, or
(c) Lessee abandons the leased premises, or
(d) Lessee is adjudged bankrupt or insolvent.
Should Lessee default on any covenant or obligation hereunder, Lessor may enforce
performance of this lease agreement to any manner provided by law, and Lessor may re-
enter and take possessions of the leased premises without prejudice to any remedies of
Lessors for arrears of rentals or any other default hereof by Lessee. In case of any such
default and re-entry by Lessor, Lessor may relet the leased premises for the highest rent
obtainable, and may recover from Lessee any deficiency between the amount so obtained,
after deducting the expenses of the reletting and the rent payable under this lease for the
balance of the term. If Lessor brings suit to compel performance of, or to recover for
breach of any convenient or obligation hereof, and prevails therein, Lessee covenants and
agrees to pay to Lessor reasonable attorney fees in addition to the amount of judgements
and costs.
Nothing herein contained shall be construed as a waiver or release of the statutory
Landlord's Lien which Lessor shall have, together with a contractual lien hereby granted, to
secure payments of all rent due under this lease.
11. NOTICE/INSPECTION: All notices to be given by Lessor to Lessee must be
given in writing and shall be considered to have been given when deposited in the Unites
States mail, postage prepaid, addressed to Lessee at 836 Friar Point, Port Arthur, Texas
77641. All notices to be given by Lessee to Lessor must be given in writing and shall be
considered to have been when deposited in the United States mail, postage prepaid,
addressed to Lessor at P.O. Box 3928, Beaumont,Texas 77704-3928.
Lessor hereby reserves the right to inspect the leased premises at any time and to inspect
the records and accounts of Lessee at all reasonable times. Lessee hereby agrees to
produce all records relative to the leased premises on request of Lessor at any reasonable
time.
12. SECTION HEADINGS: Paragraphs titles are for convenience only and do not
represent interpretations or intent of the substance of the terms and provisions of this
lease agreement.
IN TESTIMONY WHEREOF, this instrument is effective this J
, 2012. � � day of
Mamie McFaddin Ward Heritage Foundation
Lessor,
BY: Capital One, National Association Co-Trustee
BY: �L— --
S a`"een L. Farah
Vice President&Trust Officer
,1167,
Max Fortenberry, Jsee
EXHIBIT A /'
320 acres M/L being part of W.M.McFaddin Survey,Abstract No.416,T&NO RR
Survey,Abstract No.238 Jefferson County,Texas,known as Tract I9C.
. _
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Exhibit "D"
Deed
(Executed Deed to be
attached at the time of closing)
#1244140 Page 20