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HomeMy WebLinkAbout022353 RES - 09/19/1995A RESOLUTION APPROVING THE CITIZENS LANDFILL SITE ADVISORY COMMITTEE RECOMMENDATION FOR A NEW LANDFILL SITE AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN OPTION AGREEMENT WITH MR JOHN O. CHAPMAN, JR IN THE AMOUNT OF $545,760 TO PURCHASE 2,250 ACRES, MORE OR LESS, BEING ALL OF SECTIONS 22 AND 41, THE SOUTH HALF OF SECTION 42, AND THE NORTH HALF OF SECTIONS 43 AND 44, LAURELES FARM TRACTS, FOR LANDFILL PURPOSES. WHEREAS, the Citizens Landfill Site Advisory Committee, has recommended the 2250 acre, more or less, tract of the Chapman Ranch property owned by John O. Chapman, Jr., being all of Sections 22 and 41, the South Half of Section 42, and the North Half of Sections 43 and 44, Laureles Farm Tracts, "Chapman Ranch Property" on the southwest side of the City as the most desirable location for a new landfill site, and City Staff concurs in that recommendation; and WHEREAS, negotiations have been carried out by City Staff with John O. Chapman, Jr. to acquire the Chapman Ranch Property under the express threat of condemnation by the City; and WHEREAS, the City Council, after reviewing the recommendations and proposals of the City Staff, believes that the Chapman Ranch Property is the most suitable, and desires to authorize the City Manager to go forward with acquiring said Chapman Ranch Property; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the recommendation of the Citizens Landfill Site Selection Committee and the City Staff to acquire said Chapman Ranch Property, is hereby approved. SECTION 2. That the City Manager is hereby authorized to execute the Option Agreement attached and incorporated as Exhibit A, which agreement has been negotiated with John O. Chapman, Jr. under threat of condemnation by the City. PASSED AND APPROVED this the lel day of h:\AG\95\5000.778 1 R' JL Yr,{"? r , 1995. MAYOR, Cit OfjCorpus Christi, Texas +MCRUFILMED ATTEST: /„✓ice .: City Secretary, City of Corpus C sti, Texas The foregoing Resolution was approved prior to passage as to form and correctness this the day of -r , 1995. h: AG\95\5000.778 James R. Bray, Jr., City Attorney By: \ i�Ji --.1./aLJtLUo— Alison Gaay, Assistant City Attorney Assistant City Attorney JOHN O. CHAPMAN, JR. P.O. BOX 117 Chapman Ranch, Texas 78347 September 6, 1995 Mr. Kenneth T. Kohrs, Manager Property and Land Acquisition Division City of Corpus Christi P.O. Box 9277 Corpus Christi, TX 78469 Re: Landfill Site Identified by the City of Corpus Christi Dear Mr. Kohrs: As you know, in August 1993 I was notified by the City of Corpus Christi that it wanted approximately 2,240 acres of my land for a new landfill site. In addition, I was also told by the City that it intended to acquire the site either through negotiations with me or, if necessary, through the use of the City's eminent domain power. We have been engaged in continuous negotiations on this site since August 1993. During the negotiations, I requested that the City reconsider its selection of the site. The City reviewed their plans again and came back and indicated that the preferred site was still the land I own. I have continued good faith negotiations with the City. Just recently the City has indicated that time is running out for me to voluntarily agree to their plans. It has been further indicated that if an agreement is not worked out soon, the City will start condemnation proceedings to acquire the property. I understand the urgency is due to the City's need to go forward with the landfill permitting process. In order to avoid the time, risk and expense of a condemnation action, I am willing to enter into the enclosed Option Agreement, giving the City an option to acquire the proposed landfill site. As you have requested, I will leave this offer open until September 29, 1995 at 5:00 p.m. to accommodate the City's approval procedures. If this time schedule needs to be adjusted please let me know. Mr. Kenneth T. Kohrs, Manager September 6, 1995 Page 2 Although I have offered the enclosed Option Agreement to the City for the reasons set out above, I reiterate and emphasize what I have said throughout our negotiations. I have agreed to enter into the Option Agreement based on the City's indication to me that by not agreeing to sell or offer to sell the property to the City, my property would be condemned and turned into a landfill site anyway. Certainly, I continue to urge you to examine other sites and consider choosing a location other than my property. Sincerely, My v 1 v1 1 711 hn O. Chapma , Jr. Attachments OPTION AGREEMENT This Option Agreement is entered into by and between the City of Corpus Christi ("Buyer") and John O. Chapman, Jr. ("Seller"). RECITALS 1. Buyer has identified certain property owned by Seller as an appropriate site for the location of a new landfill. 2. Buyer has the power of eminent domain and has taken action to use such power to condemn Seller's property and acquire it for the landfill site. 3. Seller, under such threat of condemnation by Buyer, has agreed to sell Seller's property to Buyer according to the terms of this Option Agreement. NOW, THEREFORE, under threat of condemnation, and for and in consideration of the payment of the Option Price by Buyer, Buyer's agreement to forego to the extent permitted by law its exercise of eminent domain power for ten (10) years, and other good and valuable consideration, Buyer and Seller hereby agree as follows: 1. OPTION. Seller hereby grants Buyer the continuing, exclusive option and right ("Option") to purchase the Property in substantially its present condition upon the terms and subject to the provisions of this Agreement. 2. PROPERTY. The optioned property ("Property") consists of the surface only of the following property presently owned by Seller located in Nueces County, Texas: a. DESCRIBED REAL PROPERTY. The land ("Described Real Property") described on Exhibit "A" hereto and shown cross -hatched on Exhibit "B", together with any improvements thereon. b. APPURTENANCES. All appurtenances ("Appurtenances") to the Described Real Property, including but not limited to all interest of Seller in any strips or gores between the Described Real Property and abutting properties, whether owned or claimed by deed, limitations or otherwise, and whether or not located inside or outside the Described Real Property; and any land lying in or under the bed of any highway, street, road, alley, easement or right-of-way, open or proposed, in, on, across, abutting or adjacent to the Described Real Property. 3. OPTION PERIOD AND MONEY. Buyer may exercise the Option at any time during the following option periods ("Option Periods") by making the payments ("Option Money") specified: a. FIRST OPTION PERIOD. By the payment of $545,760.00 in cash to Seller within two (2) weeks after the date of this Agreement Buyer shall have a period of thirty-six (36) months from the date of this Agreement ("First Option Period") in which to exercise the Option. b. SECOND OPTION PERIOD. Upon the payment of an additional $272,880.00 in cash to Seller during the First Option Period, Buyer shall have an additional twenty-four (24) months after the First Option Period ("Second Option Period") in which to exercise the Option. c. FORFEITURE OF CONSIDERATION. If Buyer fails to exercise the Option before expiration of the effective Option Period, the consideration paid herein shall be retained by Seller. - 2 - 4. EXERCISE OF OPTION. Buyer shall exercise the Option by giving written notice to Seller at any time during the Option Periods of Buyer's election to exercise the Option. 5. SALES PRICE. If the Option is exercised, the total sales price ("Total Sales Price") for the Property shall be calculated by multiplying the purchase price per acre ("Purchase Price Per Acre") times the total number of acres shown by the Survey to be within the Described Real Property. The Total Sales Price shall be paid to Seller in cash at the closing. The Option Money shall be credited to the Total Sales Price. The Purchase Price Per Acre during the first twelve (12) months following the date of this Agreement shall be $2,400.00. Beginning one (1) year from the date of this Agreement, the Purchase Price Per Acre shall be adjusted on each anniversary of the date of this Agreement (the "Adjustment Date"), to reflect increases in the Consumer Price Index for "All Urban Consumers, Houston, Texas Average, All Items," issued by the Bureau of Labor Statistics of the United States Department of Labor. The adjustments in the Purchase Price Per Acre shall be determined by multiplying $2,400.00 by a fraction, the numerator of which is the index number for the last month before the adjustment (the "Current Index"), and the denominator of which is the index number for June, 1995 (the "Base Index"). If the product is greater than $2,400.00, Buyer shall pay this greater amount per acre at any Closing which occurs prior to the next Adjustment Date. The price per acre shall never be less than $2,400.00. - 3 6. SURVEY. Within twenty (20) days after exercise of the Option, Buyer, at Buyer's expense, shall obtain a survey (the "Survey") of the Property by a Registered Professional Land Surveyor acceptable to Seller showing the total number of acres to be conveyed, which number shall be used in the calculation of the Total Sales Price. 7. DATE OF CLOSING. Closing ("Closing") of the sale under this Agreement shall take place at the office of the Buyer within two (2) months after Buyer's exercise of the Option at a date specified by Buyer. 8. DEED. At Closing, Seller shall deliver a Special Warranty Deed executed and acknowledged by Seller, conveying to the Buyer good and marketable title sto the surface only of the Property: a. Subject to any and all valid and subsisting easements, rights-of-way and prescriptive rights, whether of record or not; all presently recorded restrictions, reservations, covenants, conditions, oil and gas leases, mineral severances and other instruments other than liens and conveyances created by, through or under Seller, that affect the Property; rights of adjoining owners in any walls and fences situated on a common boundary; any discrepancies, conflicts or shortages in area or boundary lines; any encroachments or overlapping of improvements; and all rights, obligations and other matters emanating from and existing by reason of the creation, establishment, maintenance and operation of any county water improvement district or other applicable government district, agency, authority, etc.; r - 4 - b. Reserving and excepting all of the oil, gas, and other minerals of every kind and character, whether similar or dissimilar, known or unknown, in, on, or under and that may be discovered, mined, produced, and recovered from the Property, or any portion thereof, whether by wells, bores, shafts, or tunnels (hereafter referred to as the "Minerals"). The Minerals include, but are not limited to, coal, lignite, zinc, lead, iron, copper, uranium, and other fissionable minerals and materials, and other hard minerals of unusual value (but excluding water, sand, gravel, dirt, caliche, rock, and stone which are considered part of the surface estate, and methane or other landfill gas which is a by- product of the landfill operations); provided, however, that for so long as the Property is being used for landfill purposes, Seller waives the right to mine or extract Minerals existing within 200 feet of the surface by means which consume, destroy, or render the Property unusable for landfill purposes; and c. Further reserving and excepting those easements reasonably necessary for the purpose of Seller's or Seller's assignees' exploring, prospecting, mining, drilling, developing, producing, saving, transporting, storing, treating, removing, and owning the reserved Minerals to the extent such easements are implied under the Texas common law to allow access to severed estates, and subject to this Agreement and to the legal conditions and doctrines governing such common law easements. 9. MINERALS. The Property to which the Option applies does not include any Minerals or rights relating to their development owned by Seller. Any compensation to Seller by Buyer for Seller's - 5 - mineral interests (except to the extent set forth below) shall be outside of this Agreement and shall be in amounts and on terms similar to those provided by Buyer to other similarly situated owners of undivided mineral interests and shall be payable only at the time such Minerals or Mineral rights are actually acquired or taken or at such time as payments are made to other similarly situated owners of undivided mineral interests, whichever is earlier. It is understood and acknowledged by Seller that Buyer is acquiring the Property for purposes of constructing, operating, and maintaining a landfill and that the consideration to be paid Seller for the Property (including under the Option Agreement and any sale of the Property) is not being adjusted for the possibility that a portion of the surface might be destroyed or made unusable for landfill purposes by removal of Minerals reserved by Seller, and the naming of specific minerals shall not limit the right of Buyer or its assignees to recover for destruction or use of the surface in connection with extraction of the Minerals as provided by case law as of September 19, 1995 [including but not limited to Moser v. United States Steel Corp., 676 S.W.2d 99 (Tex. 1984)]. The preceding sentence shall be incorporated into the Deed delivered pursuant to paragraph 8, supra. 10. COSTS, PRORATIONS. a. TAXES. All ad valorem taxes shall be prorated to the date of Closing. If the current year's taxes are not known as of the date of Closing, the proration shall be based upon the previous year's tax rate applied against the most recent valuation with an adjustment being made between Seller and Buyer when the - 6 - current year's taxes are known. If at any time after the Closing additional ad valorem taxes, including penalty and interest thereon, for any period prior to Closing, shall be assessed against the Property by reason of the transfer of ownership of the Property to Buyer or by reason of any change in use of the Property by Buyer, Buyer shall pay such additional ad valorem taxes, including penalty and interest. The provisions of this subparagraph shall survive the Closing. b. OTHER PAYMENTS. Any rents, including crop share rents, royalties, delay rentals, interest and other similar payments as to the Property shall be prorated to the date of Closing. All Closing costs, including any escrow fee charged by a title company shall be paid by Buyer. Each party will pay its own attorney's fees and the cost of recording any documents delivered to it at Closing. 11. COVENANTS AND WARRANTIES. Seller makes the following covenants, representations and warranties as of the date of this Agreement and as of the date of Closing, and the covenants, representations and warranties shall survive the Closing. a. TITLE. Seller has good and marketable title to the Property and is fully authorized to convey the Property pursuant to this Agreement. b. NO PROCEEDINGS. To the best of Seller's knowledge, there are no pending, threatened or contemplated condemnation, zoning or other similar proceedings or assessments affecting the Property (other than those under the control of Buyer) or lawsuits by adjoining landowners or others. 4 7 c. LEASES. The Property is not now in whole or in part under long term lease to any person, and no person other than Seller is presently in possession of the Described Real Property, except for the following: Seller leases the property on a year-to-year basis to one or more tenants who use the property for agricultural purposes and pay rent on a crop share basis. During the Option Period, Seller shall continue to lease the Property on a year-to-year basis and if Buyer exercises the Option, Buyer agrees to take title to the Property subject to any one or more of such agricultural leases so long as by their terms they may be terminated by the Property owner within one (1) year of the Closing. d. NO CONTRACTS. Seller shall not, without Buyer's written permission, which permission shall not be unreasonably withheld, prior to the Closing or expiration of this Option Agreement, entered into any oral or written contracts, agreements, covenants, easements, listings, understandings or agreements affecting the Property which may become binding upon Buyer. Nothing in this paragraph shall apply to mineral leases which Seller may enter into as a mineral interest owner. e. REAL ESTATE COMMISSION. No real estate agent has negotiated this Agreement or will be entitled to a commission on the conveyance of the Property to Buyer. 12. FIRST REFUSAL. In the event Buyer exercises the Option, Buyer agrees to execute and deliver to Seller at Closing a first refusal agreement, suitable for recording, whereby Seller is given a first refusal right to lease any portion of the Property for the - 8 - price, and on the same terms and conditions on which Buyer has agreed to lease such portion of the Property to a third party. Such first refusal right is to be effective for a term of ten (10) years from the date of Closing. 13. DEFAULT. If Seller fails or refuses to comply with this Agreement, Buyer shall have the right to cancel this Agreement and recover the Option Money, to enforce specific performance of this Agreement, to exercise any other rights Buyer may have, including recovering reasonable attorneys' fees, and/or to waive any unmet requirements in whole or in part. If Buyer fails or refuses to comply with this Agreement after exercising the Option, Seller shall have the right to enforce specific performance of this Agreement or to exercise any other rights Seller may have, including recovering reasonable attorneys' fees. 14. INSPECTIONS. During the Term of the Option, Buyer shall have the right to conduct, or have conducted on the Property, at Buyer's expense, such inspections of the Property as Buyer may desire. Seller has not made and does not make to Buyer any representation of any kind regarding the suitability of the Property for Buyer's intended use, and Buyer shall rely solely on its inspections and investigations to determine the suitability of the Property for Buyer's intended use. To the extent allowed by the Texas Constitution and/or statutes, Buyer agrees to indemnify and hold Seller harmless from all loss and liability arising from entry onto Seller's property by Buyer's agents, servants, and employees, and from any damage caused to the premises, crops, or structures thereon as a result of the testing provided for herein. - 9 - Provided, that should the undertaking above in this paragraph be held invalid or unenforceable in a final decision of a court of competent jurisdiction, it is the intent of the parties that this provision shall be severable and that all other provisions of this Option Agreement be fully valid and enforceable. 15. NO CONDEMNATION. As a special inducement to Seller to enter into this Agreement, Buyer agrees, to the extent permitted by the Texas Constitution and/or laws, that for a period of ten (10) years from the date of this Agreement, Buyer will not use its eminent domain power, nor cooperate with any other entity to condemn any interest in the Property as defined above for use as a landfill site or as a buffer or screening area for a landfill. In the event condemnation proceedings are initiated by the City during the Term of this Agreement, this Agreement shall immediately expire and shall be of no further force and effect with Seller retaining all amounts theretofore paid by the City. As a further inducement for Seller to enter into this Agreement, the parties agree that the Total Sales Price provided herein, shall constitute the minimum fair market value of the Property for purposes of any condemnation proceedings initiated by the City for ten (10) years from the date of this Agreement. Provided that, should the undertaking above in this paragraph be held invalid or unenforceable in a final decision of a court of competent jurisdiction, it is the intent of the parties that this provision shall be severable and that all other provisions of this Option Agreement be fully valid and enforceable. - 10 - 16. GENERAL PROVISIONS. a. NOTICES. Any notice, designation, approval or other communication to be given hereunder shall be given by placing the notice or designation in the United States mail, certified or registered, properly stamped and addressed to the address shown below or such other address as the receiving party may direct in writing to the sending party, or by personal delivery to such address by a party or by a messenger service which documents delivery. Such notice or designation shall be deemed to be received upon such placing in the mails or such delivery: (1) SELLER: Mr. John O. Chapman, Jr. P.O. Box 117 Chapman Ranch, Texas 78347 (2) BUYER: City of Corpus Christi, Texas Attn: Manager, Property and Land Acquisition Division P.O. Box 9277 Corpus Christi, Texas 78419-9277 b. CAPTIONS. The captions used in connection with the paragraphs of this Agreement are for convenience only and shall not affect the meaning of the language contained in this Agreement. c. DATE HEREOF. The date of this Agreement shall be deemed to be the date of execution by the last party to sign. d. ENTIRE AGREEMENT. This Agreement contains all agreements between the parties and no agreement not contained herein shall be recognized by the parties unless in writing and executed by both parties hereto. e. ASSIGNMENT/BINDING EFFECT. This Agreement may not be assigned by Buyer, but shall otherwise be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns. 17. MEMORANDUM. At Buyer's request, Seller will execute a short form of this Option Agreement which identifies the Property and is suitable for recording. EXECUTED by Seller , 1995. John O. Chapman, Jr. EXECUTED by Buyer , 1995. CITY OF CORPUS CHRISTI c1w/ACCOEC77/00321-0113 By: Name: Title: - 12 - EXHIBIT "A" PROPERTY DESCRIPTION All of those certain tracts or parcels of land lying and being situated in Nueces County, Texas, and being a part of what is known as the Chapman Ranch out of the Rincon de Corpus Christi Grant, and described as follows: All of Section Twenty-two (22); All of Section Forty-one (41); The South one-half (34) of Section Forty-two (42); The North one-half (34) of Section Forty-three (43); and The North one-half (%) of Section Forty-four (44); being a part of what is known as the Chapman Ranch, according to the surveying and platting of said ranch into sections by C. M. Lawrence and according to the survey and plat, dated May 27, 1920, made by him of said ranch. SAVE AND EXCEPT that portion of the North one-half (34) of Section Twenty-two (22) previously conveyed to South Texas Public Broadcasting System. EXHIBIT "A" - Page 1 of 1 EXHIBIT "B" PROPERTY MAP ill yeti '‘) \.7-4 CAS.?, N\ \t, 3i6 • mac. _Pt 314.4a. '.NN f0 Gvwas✓ St. •19 Ac, • EXHIBIT "B" - Page 1 of 1 1 TUE 10- %2 FAX 512 888 8504 MAI DiEWS & BRANSCOMB RESOLUTION WHEREAS, the City Staff has selected the acre tract of the Chapman Ranch property owned by John 0. Chapman, Jr., on the southwest area of the City as the most desirable location for a new landfill site; and WHEREAS, the City Council, and proposals of the City Staff suitable and desires the said site; NOW, THEREFORE, BE IT RESOLVED, 1. The city has selected particularly described in the desirable site for the location 2. The City Staff be and a purchase of such property and to begin proceedings to condemn the landfill site. after reviewing the recommendations believes that such site is the most City Staff ACCOPBBD (.41321-113 to go forward with acquiring that: that certain property more attached Exhibit A as the most of the new City landfill; hereby is authorized to negotiate if the Owner is unwilling to sell such property and acquire it for a 01 Corpus Christi, Texas 1 61 Day of S. '-i 4k/.. C2 -i 1 19 'ie The above resolution was passed by the following vote: Mary Rhodes a., i., Dr. Jack Best 0,C,1 ,y,_ Betty Black (Ai - Melody Cooper //(k z. Tony Heldenfels Vll, yi Betty Jean Longoria Ci' v John Longoria C/U, ? ti<A,L.t Edward A. Martin / v Dr. David McNichols C.e— h:\AG\95\5000.778 l, -'-.)f.