HomeMy WebLinkAboutC2009-064 - 2/24/2009 - ApprovedAGREEMENT OF SALE
This is an Agreement with an Effective Date as provided below between COASTAL
BEND BAYS & ESTUARIES PROGRAM, INC. a Texas nonprofit corporation, which shall be
referred to as "Seller," and the CITY OF CORPUS CHRISTI, a Texas municipal corporation,
which shall be referred to as "Buyer."
RECITALS
A. The addresses and telephone numbers of the parties to this Agreement are as
follows. Telephone numbers are included for information only.
SELLER:
Coastal Bend Bays & Estuaries Program,
Inc.
1305 N. Shoreline Blvd Suite 205
Corpus Christi, Texas 78401
Attn: Ray Allen
Tel: (361)
Fax: (361)
Email: rallen@cbbep.org
With copies to:
Robert B. Wallace, Jr., Attorney
711 N. Carancahua, Suite 800
Corpus Christi, Texas 78475
Tel: (361) 884-8811
Fax: (361)884-8812
BUYER:
City of Corpus Christi
Attn: Sally Gavlik
1201 Leopard Street
Corpus Christi, TX 78401-2825
Tel: (361) 826-3464
Fax: (361)826-3864
Email: sallyg@cctexas.com
With copies to:
City of Corpus Christi
1201 Leopard Street
Corpus Christi, Texas
Tel: (361) 826-3360
Fax: (361)826-3239
Attn: City Attorney
78401
B. The Trust for Public Land, a California public benefit corporation, ("Current
Owner") is the owner of certain real property located in Nueces County, Texas consisting of
approximately 48 acres and depicted on Exhibit A attached hereto and made a part hereof. Said
real property, together with any and all improvements, fixtures, timber, water and/or minerals
located thereon and any and all rights appurtenant thereto including but not limited to timber
rights, water rights, access rights and mineral rights shall be referred to in this Agreement as the
"Property". The exact legal description of the Property is attached as Exhibit A.
C. Current Owner has agreed to sell the Property to Seller.
2009-064
M2009-047
02/24/09
CB Bays & Estuaries Program
D. Upon Seller's acquisition of the Property, Buyer wishes to purchase the Property
from Seller and Seller wishes to sell the Property to Buyer in accordance with the terms and
conditions set forth in this Agreement.
NOW THEREFORE, FOR $10.00 AND OTHER GOOD AND VALUABLE
CONSIDERATION THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale. Seller agrees to sell to Buyer and Buyer agrees to buy from
Seller the Property on the terms and conditions set forth herein.
2. Purchase Terms.
a. Price. The purchase price (the "Purchase Price") for the Property shall be
Five hundred twenty-eight thousand, nine hundred dollars ($528,900.00).
b. Method of Pavment. The Purchase Price shall be payable in cash, at
Closing (as defined below), subject to any credits, pro-rations and adjustments provided
elsewhere in this Agreement.
3. Buver's Deposit. [This Section is intentionally deleted.]
Condition of the Property.
a. Buyer acknowledges that Buyer will have a full and fair opportunity to
inspect the Property and any structures or improvements on the Property and to perform
any tests or analyses desired by Buyer to satisfy Buyer as to the condition of the Property.
Buyer agrees to accept the Property including any structures or improvements, "as is,
where is," subject to all faults of every kind and nature whatsoever, whether latent or
patent and whether now or hereafter existing and subject to any violations of any law or
ordinance existing on the date of closing, including without limitation those relating to
the environmental condition of the Property. Buyer waives any and all objections to or
claims or causes of action against Seller including, but not limited to federal, state or
common law actions and any private right of action under state and federal law to which
the Property is or may be subject (including, but not limited to CERCLA and RCRA)
regarding the physical characteristics and existing structural, geologic, subsurface, soil,
water and environmental conditions on, under, adjacent to or otherwise affecting the
Property.
5. Closin .Final settlement of the obligations of the parties hereto shall occur on or
before October 31, 2009 at such date, place and time as the parties shall agree (the "Closing").
This transaction shall be closed in escrow with San Jacinto Title Services of Corpus Christi, 5926
S. Staples, Corpus Christi, TX 78413 (the "Escrow Holder"). The transaction contemplated
hereunder shall be closed by Escrow Holder in accordance with the general provisions of the
usual form of deed and money escrow agreement then in use by Escrow Holder, with such
additional special provisions inserted in said escrow agreement as may be required to conform
with the terms and conditions of this Agreement. Buyer has submitted a request to the Texas
General Land Office for a grant to be used towards Buyer's Purchase Price obligation hereunder.
Buyer understands and agrees that its obligations hereunder are not contingent upon Buyer
obtaining said grant.
6. Title. Seller shall by special warranty deed convey to Buyer its interest in the
Property, subject only to the following:
(i) any federal, state or local laws, ordinances, regulations and/or orders
whatsoever;
(ii) liens for real estate taxes not yet due and payable and other taxes and
assessments of any kind or nature assessed (not yet due and payable) with respect to the
Property;
(iii) The following restriction to be placed on the Property when it is conveyed to
Seller: No roadway or other entrance to the Property, whether such roadway or entrance
is public or private, may be constructed or maintained within one hundred feet (100') of
the southern boundary of the Property. This restrictive covenant shall be enforceable by
(i) any owner of the property adjacent to the southern boundary of the Property, (ii) any
homeowners' association which includes such adjacent property, or (iii) the developer
who files a plat including such adjacent property.
(iv) such other title objections and exceptions as may be waived by Buyer;
(v) the standard printed exceptions on the form of title insurance issued pursuant
to Section 7.
The foregoing shall be referred to collectively as "Permitted Exceptions". Seller has delivered to
Buyer a copy of a commitment for title insurance covering the Property and some additional
property, issued by Escrow Holder committing the title company to issue a TLTA Owner's Policy
insuring title to the Property in Seller (the "Seller's Title Commitment"). Buyer shall at its sole
cost and expense obtain a title commitment for title insurance from Escrow Holder committing
the title company to issue a TLTA Owner's Policy insuring title to the Property in Buyer
7. Title Insurance. Buyer shall at its option and its sole cost and expense procure a
TLTA owner's policy of title insurance from the title company that issued the commitment for
title insurance described in Section 6 insuring that title to the Property is vested in Buyer upon
Closing, subject only to the Permitted Exceptions pursuant to Section 6.
8. Seller's Promise not to Further Encumber. Seller shall not, without the prior
written consent of Buyer, make any leases, contracts, options or agreements whatsoever affecting
the Property which would in any manner impede Seller's ability to perform hereunder and deliver
title as agreed herein.
Seller's Representations. Seller makes the following representations:
a. At Closing, Seller will have the power to sell, transfer and convey all right,
title and interest in and to the Property.
b. Seller represents and warrants that it is not a "foreign person" as defined in
Section 1445 of the Internal Revenue Code. Seller's United States Taxpayer
Identification Number is
10. Taxes Closins Expenses Seller's Carryine Costs and Fees. At Closing, Buyer
will reimburse Seller for all costs, expenses or fees it has incurred or will incur in connection
with or related to the acquisition, operation, or transfer of an interest in the Property, including,
but not limited to environmental assessments, appraisals, surveys, title insurance, real estate
taxes, special assessments, rollback taxes, utilities, maintenance and operation costs and closing
costs, and insurance premiums; provided, however, Seller's interest and financing expenses and
attorneys' fees, other than those that may be incurred in enforcing this Agreement, are
specifically excluded under this Section. All real property taxes on the Property, including any
special assessments, levied, pending or constituting a lien against the Property, if any, shall be
assumed by Buyer. Buyer shall be responsible for paying any additional taxes, penalties and
interest, including but not limited to compensatory or roll back taxes, on the Property arising
from the termination of a preferential tax classification of the Property payable as a result of the
conveyance to Seller or Buyer. The escrow fee for Closing shall be shared equally by Seller and
Buyer. Any documentary tax or real property transfer tax arising out of the conveyance of the
Property shall be paid by Buyer or Buyer shall at Closing reimburse Seller for said tax. Other fees
and charges not otherwise allocated in this Agreement, shall be allocated in accordance with the
customary practice of Nueces County, Texas; provided, however, if there is no customary
practice then allocated to the Buyer.
Seller will seek any real estate tax exemption available to it during its ownership of the Property;
provided, however, Seller will not be obligated to assume any costs and expenses in connection
therewith other than customary application fees, if any. Buyer agrees that it will provide
assistance to any effort by Seller to seek such exemption. Buyer, however, shall not be relieved
of its obligation to pay such taxes and assessments as required by this Agreement, unless the
Property is allowed a tax exemption during Seller's ownership. In addition, Seller will seek to
lease the Property for grazing or agricultural purposes during its ownership pursuant to terms of
an agreement reasonably acceptable to Seller. Buyer understands that Seller will not be obligated
to assume any costs, expenses or liability in connection with such a lease.
11. Notices. All notices pertaining to this Agreement shall be in writing delivered to
the parties hereto personally by hand, telecopier, courier service or Express Mail, or by first class
mail, postage prepaid, at the addresses set forth in Recital A. All notices shall be deemed given
when deposited in the mail, first class postage prepaid, addressed to the party to be notified; or if
delivered by hand, telecopier, courier service or Express Mail, shall be deemed given when
4
delivered. The parties may, by notice as provided above, designate a different address to which
notice shall be given.
12. Remedies Upon Default. In the event either party defaults in the performance of
any of its obligations under this Agreement, the non-defaulting party shall have the right of
specific performance against the defaulting party, in addition to any and all other remedies
provided in this Agreement, or by law or equity.
13. No Broker's Commission. Each party represents to the other that it has not used
a real estate broker in connection with this Agreement or the transaction contemplated by this
Agreement. In the event any person asserts a claim for a broker's commission or finder's fee
against one of the parties to this Agreement, the party on account of whose conduct the claim is
asserted will hold the other party harmless from said claim, to the extent allowed by law without
waiving any limitations or exemptions from liability.
14. Time of the Essence. Time is of the essence of this Agreement.
15. Bindine on Successors. This Agreement shall be binding not only upon the
parties but also upon their heirs, personal representatives, assigns, and other successors in
interest.
16. Additional Documents. Seller and Buyer agree to execute such additional
documents, including escrow instructions, as may be reasonable and necessary to carry out the
provisions of this Agreement.
17. Assignment. Neither party may assign its interests under this Agreement without
the written consent of other party.
18. Entire Agreement; Modification; Waiver. This Agreement constitutes the
entire agreement between Buyer and Seller pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations, and understandings. No
supplement, modification or amendment of this Agreement shall be binding unless executed in
writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
19. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and which together shall constitute one and the same agreement.
20. Severability. Each provision of this Agreement is severable from any and all
other provisions of this Agreement. Should any provision(s) of this Agreement be for any reason
unenforceable, the balance shall nonetheless be of full force and effect.
5
21. Governin¢ Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
22. Acceptance of Deed. The acceptance by Buyer of the deed shall be deemed to be
full performance by Seller of, and shall discharge Seller from, all obligations hereunder and
Seller shall have no further liability hereunder.
23. Risk of Loss. Notwithstanding any applicable law or custom to the contrary, all
risk or loss with respect to the Property (other than a loss resulting from the willful acts of Seller)
shall be borne by Buyer.
24. Condemnation. In the event of the taking of all or any part of the Property by
eminent domain proceedings, or the commencement of such proceedings prior to Closing, Buyer
may, at its option, either (a) proceed to Closing with the Purchase Price reduced by the total of
any awards or other proceeds received or to be received by Seller as a result of such proceedings,
or (b) proceed to Closing with an assignment by Seller of all Seller's right, title and interest in
and to any and all such awards and proceeds.
25. Possession. Possession of the Property shall be delivered on the date of Closing
in the same condition as it is on the date hereof and/or as required pursuant to the terms of this
Agreement, ordinary wear and tear excepted, free and clear of the rights or claims of any other
party except as otherwise permitted in Section 6.
26. Buyer's Representation. Buyer represents that it has full power and authority to
enter into this Agreement and the person signing this Agreement for Buyer has full power and
authority to sign for Buyer and to bind it to this Agreement.
27. Miscellaneous. In the event that any of the deadlines set forth herein end on a
Saturday, Sunday or legal holiday, such deadline shall automatically be extendedto the next
business day which is not a Saturday, Sunday or legal holiday. The term "business days" as may
be used herein shall mean all days which are not on a Saturday, Sunday or legal holiday.
28. Contineency. The parties agree that this Agreement is contingent upon the
following: Buyer acknowledges that Seller does not presently own the Property and that Seller's
duties hereunder and Buyer's rights hereunder are both expressly contingent upon the acquisition
by Seller of the Property.
29. Survey. Current Owner has provided Buyer with a TBLS Category 1 A Survey ofthe
Property to be performed and Buyer has provided Seller with a copy of the Survey. The legal
description of the Property will be determined in accordance with said survey and with any
requirements of the Escrow Holder.
30. Conditions to Access to Proaerty. Before entering upon the Property to conduct
the investigations provided for in Section 4, Buyer shall notify Seller and Seller shall have
6
obtained the Current Owner's permission for Buyer to enter upon the Property to conduct said
investigations.
31. Si¢nage. The parties agree that permanent signage on the Property shall provide
for recognition of the role of Seller and Current Owner in this acquisition, said signage being
subject to applicable governmental regulations and the approval of Seller and Current Owner.
This section shall survive the delivery of the deed.
IN WITNESS of the foregoing provisions the parties have executed and delivered this
Agreement as of the date set forth below. The effective date (the "Effective Date") of this
Agreement shall be the last date of execution by either of the parties to this Agreement. If a party
returns this Agreement by facsimile machine, the signing party intends the copy of its authorized
signature printed by the receiving facsimile machine to be its original signature.
SELLER:
COASTAL BEND BAYS &
ESTUARIE C.
By:
Title: ~iGt{.c~~
Date: "Z ~
~~'~ AUTMUNIG[0
er couRCa . 9 ~.~-~..`~~
SECRETARY {Jb
BUYER:
CITY OF CORPUS CHRISTI
By:
Title:~~~L U
Date: o) ~
By:
Y'Y1'1 u
Title:
Date: '~~S~~O°I
Approved as to legal form: a/I3' ~~
~N.AM~
Exhibit A
Depiction of the Property
48.91 ACRES
TILE STATE OF TEXAS}
'PHE COUN''CY OF NUECES}
BEING a 48.91 acre tract of land situated partially in Lots l'hree (3), 1_ot Four (4), Lo[ Eleven
(11) Lot Twelve (12), Lot Seventeen (17), and LW Eighteen (18), Section 32. Flour Rluff and
Encinal Farm and Garden "fracts of record in Volume A, Page 41-43 of the Map Accords of
Nueces County, Texas, and being a portion of that certain tract of land conveyed by George R.
Gaines, Jr., el ux to "I he George B. Gaines, Jr. Family Limited Partnership. LTD. accordinc to
Document Number 842209 of the Official Records of Nueces County, Texas, and a portion of
that certain tract of land conveyed by George B. Gaines, Jr., ct ux to The George B. Gaines, Jr.
Family Limited Partnership, i:fD. accordinc to Document Number 842210 of the Official
Accords of Nueces County, Texas, said 48.91 acre tract of land being more fully described by
metes and bounds as Follows:
COMMENCING at a 5.8 inch diameter rehar (ti~ilh pellon plastic cup stumped "URR.9N
SURI'EYING, lNC.) found marking the common comer of Section 27, Section 28, Section 31
and said Section 32, Flour Bluff and Encinal Farm and Garden Tracts, TIIF.NCE, South 61 deg.
22' 33" East, along the common line of said Section 31 and said Section 32, a distance of 1397.62
feet to 5%8 inch diameter steel rcbar set to mark the north comer of the herein described tract and
the POINT OF BEGINNING herein;
THENCE, South 61 deg. 22' 33" East, continuing with the common line of Section 31 and
Section 32, a distance of 958.01 feet to a 5;8 inch diameter steel rcbar set to mark the beginning
of a non-tangcut curve to the right;
THENCE, with said curve to the right, having a radius of 1597.21 feet, interior angle of 10 deg.
49' S7", chord bears South 46 de~~. 22' 26" East, 301.52 feet, for an arc length of 301.97 feet to a
5!8 inch diameter steel rehar found marking the northeast corner of the herein described tract;
THENCE, South 28 deg. 38' 49" West, a distance of 2597.02 feet to a 5!8 inch diameter steel
rcbar found marking the south corner of the herein described tract;
THENCE, North 61 deg. 20' 04" West, a distance of 740.05 feet to a 5.8 inch diameter steel
rcbar set to mark southwest comer of the herein described tracC
THF,NCE, North 28 deg. 39' S6° East, a distance of 16$.00 feet to a 5%8 inch diameter steel rehar
set to mark the beginning of a tangent curve to the right;
THENCE, with said curve to the right. having a radius of 560.00 feet, interior angle of 17 dec.
17' S0", chord bears North 37 deg. 18' 41" East, 168.37 feet, for an arc length of 169.01 feet to a
5/8 inch diameter steel rehar set for its point of tangency;
THENCE,, North 45 deg. 57' 46" Bast, a distance of 507.29 feet to a 5; 8 inch diameter steel rehar
set to mark the beginning of a tangent curve to the left;
THENCE, with said curve to the left, having a radius of 640.00 feet, interior angle of 37 deg. 13'
54", chord bears North 27 deg. 20' S0" East, 408.60 feet, for an arc length of 415.88 feet to a 5!8
inch diameter steel rcbar set for its point of tangency;
THENCE, North 08 deg. 43' S3" East, a distance of 487.73 feet to a 5!8 inch diameter steel rcbar
set to mark the heginning of a tangent curve to the left;
THENCE, with said curve to the Icft, having a radius of 640.00 feet, interior angle of 25 deg. 45'
17", chord bears North 04 deg. 08' 46" West, 285.27 feet, for an arc length of 387.68 feet to a 5;8
inch diameter steel rebar set for its point of tangency;
THENCE, North 17 deg. Ol' 24" West, a distance of 261.19 feet to a 5/8 inch diameter steel
rebar se[ to mark the beginning of a tangent curve to the right;
THENCE, with said curve to the right, having a radius of 560.00 R;et, interior angle of 45 de~~.
35' 34", chord bears North OS deg. 46' 23" Fast, 433.95 feet, for an arc length of 445.62 feet to a
5/8 inch diameter steel rebar set For its point of tangency;
THF,NCE. North 28 deg. 34' 10" Gast, a distance of 169.32 feet to the POINT OF
BEGINNING, CONTAINING within these metes and bounds a 48.91 acre tract o1' land, more
or less.
All set 5%8 inch diameter steel rebar marked with yellow plastic cap stamped "URBAN
SURVEYWG, INC.".
Bearings based on Texas State Plane Coordinate System (South "Lone) using City of Corpus
Christi control monuments SP071 and SP 080 (Bearing from SP 071 to SP 080 is North 52 deg.
28' 26.49" West).
The foregoing legal description and accompanying survey plat were prepared from an actual
survey made on the ground under my supervision in December 2007 and arc true and correct to
the best of my kno ge and bcl/c~f.
U n n" , l ~~ o f jf ;
.. S..
Ur an Su ying, Inc. TERRY T~RUDDIiK.
By. Terry Ruddick OZ(LO' •••1"'¢",'4943~~~~
Registered mfessional Land Surveyo <,9 ;'On~.~^~C,~~P~~2'
Texas No. 4943 ~.,S4U~t~'''
S 16532-park