R2000-114 10-09-00 RESOLUTION NO. R2000-114
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO AN EARNEST MONEY CONTRACT WITH BRAZORIA
COUNTY MUNICIPAL UTILITY DISTRICT NO. 23, A CONSERVATION
AND RECLAMATION DISTRICT AND POLITICAL SUBDIVISION OF THE
STATE OF TEXAS, TO BE CREATED BY THE TEXAS NATURAL
RESOURCE CONSERVATION COMMISSION, FOR THE PURCHASE OF
REAL PROPERTY SITUATED IN THE CITY OF PEARLAND.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Earnest Money Contract by and between the City of
Pearland and Brazoria County Municipal Utility District No. 23, a conservation and
reclamation district and political subdivision of the State of Texas, to be created by the
Texas Natural Resource Conservation Commission, a copy of which is attached hereto as
Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest the original of the attached Earnest Money Contract for and
on behalf of the City of Pearland.
PASSED, APPROVED and ADOPTED this the 9 day of October , A.D.,
2000.
vYi2 .t
TOM REID
MAYOR
ATTEST: i •
A.UNGiT►. /
'RETAR /
1
RESOLUTION NO. R2000-114
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
2
DRAFT
CITY OF PEARLAND EXHIBIT
UNIMPROVED PROPERTY EARNEST MONEY CONTRACT Ir
1. PARTIES: "SELLER": The City of Pearland, Texas, a municipal corporation and home-rule municipality of
the State of Texas situated principally in Brazoria County acting by and through its
governing body, the City Council.
"BUYER": Brazoria County Municipal Utility District No. 23, a conservation and reclamation
district and political subdivision of the State of Texas, to be created by the Texas
Natural Resource Conservation Commission. Prior to the creation of Brazoria
County Municipal Utility District No. 23, Beazer Homes Texas, L.P., a Texas
limited partnership, will act on its behalf.
2. PROPERTY: The real property situated in Brazoria County, Texas, as described in Exhibit "A" hereto, together
with all rights, privileges and appurtenances pertaining thereto, including any right, title, and interest of Seller in
and to adjacent streets, alleys, and rights-of-way. The property sold by this contract is called the "Property".
The metes and bounds description determined by the survey of the Property under paragraph 6(b) shall replace
any exhibit describing the perimeter boundaries of the Property if it differs from the exhibit.
3. SALES PRICE: Cash portion of Sales Price payable by Buyer: $75,000.00 (15 acres)
The Sales Price is to be adjusted based upon a survey, calculated on the basis of the lesser of $5,000.00 per acre
of nets area or the value specified in the appraisal. "Net area" is defined as the total area of the Property exclusive
of any portion of the property lying in any public roadway and any right-of-way or easement,except rights-of-way
and easements providing utility services to the Property. If the survey results in an adjustment of more than 10%
of the Sales Price in this paragraph 3, either party may terminate this contract by written notice to the other party
within 10 days after the terminating party receives the survey. If neither party so terminates this contract or if
the variance is 10% or less,the adjustment to the Sales Price shall be made in the cash portion payable by Buyer.
4. FINANCING: ALL CASH SALE
5. EARNEST MONEY: Within ten business days after the execution hereof, Buyer shall deposit, or cause to be
deposited, $1,000.00 as Earnest Money with Commerce Land Title (Escrow Agent) at
. The Earnest Money shall be deposited in an interest bearing account in a
federally insured financial institution chosen by Escrow Agent and any interest shall be credited to Buyer.
6. TITLE POLICY AND SURVEY:
(a) TITLE POLICY: Seller shall furnish to Buyer an Owner Policy of'Title Insurance (the Title Policy) issued by
Commerce Land Title, Inc. (the Title Company) in the amount of the Sales Price, dated at or after closing,
insuring Buyer against loss under the provisions of the Title Policy, subject only to those title exceptions
permitted by this contract, or as may be approved by Buyer in writing, and the standard printed exceptions
contained in the promulgated form of Title Policy; provided however that: (1) the exception as to area and
boundaries shall not be deleted except for any shortages in area at the expense of Seller; and (2) the
exception as to restrictive covenants shall be endorsed "None of Record", unless restrictions are approved
by Buyer. Within 45 days after the Title Company receives a copy of this contract Seller shall furnish Buyer
a commitment for Title Insurance (the Commitment) including copies of recorded documents evidencing title
exceptions. Seller authorizes the Title Company to deliver the Commitment and related documents to Buyer
at Buyer's address. Buyer shall have 30 days after receipt of the Commitment and legible copies of
documents evidencing title exceptions required by this contract to object in writing to matters disclosed in
the Commitment other than the standard printed exceptions as described or limited in this paragraph.
(b) SURVEY REQUIRED:
Within 45 days after the Effective Date of this contract, Seller shall furnish to Buyer a survey of the Property
dated after the Effective Date of this contract. Buyer shall have 30 days after Buyer's receipt of the survey
to object in writing to any matter which constitutes a defect or encumbrance to title on the survey or if the
survey shows any part of the Property to lie in a 100-year flood plain area.
Page 1 of 4
The survey required by this paragraph 6(b) shall be made by a Registered Professional Land Surveyor acceptable
to the title company and any lender. The survey shall: (i) identify the Property by metes and bounds or platted
lot description; (ii) show that the survey was made and staked on the ground with corners permanently marked;
(iii)set forth the dimensions and total area of the property; (iv) show the location of all improvements, highways,
streets,roads,railroads,rivers, creeks,or other waterways,fences,easements,and rights-of-way on the Property
with all easements and rights-of-way referenced to their recording information; (v) show any discrepancies or
conflicts in boundaries, any visible encroachments, and any portion of the Property lying within the 100-year
flood plain as shown on the current Federal Emergency Management Agency map; and (vi) contain the surveyor's
certificate that the survey is true and correct.
Buyer's failure to object under paragraph 6(a) or 6(b) within the time allowed shall constitute a waiver of Buyer's
right to object except that the requirements in Schedule C of the Commitment shall not be deemed to have been
waived. If objections are made by Buyer, or any third party lender, Seller shall cure the objections within 30 days
after the date Seller receives them. The Closing Date shall be extended as necessary to cure objections. If
objections are not cured by the extended Closing Date, this contract shall terminate and the Earnest Money shall
be refunded to Buyer unless Buyer elects to waive the objections.
7. INSPECTIONS AND FEASIBILITY STUDIES: Within 45 days after the Effective Date of this contract, Buyer may
complete or cause to be completed inspections of the Property (including any improvements) by inspectors of
Buyer's choice. Inspections may include but are not limited to: (i) physical property inspections; (ii) economic
feasibility studies; (iii) any type of environmental assessment or engineering study including the performance of
tests such as soils tests, wetlands determinations,or air sampling. 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, studies, or
assessments completed or caused to be completed by Buyer under this paragraph to Seller within the time required
to complete the inspections, studies, or assessments under this paragraph, and the Earnest Money shall be
refunded to Buyer. 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.
Within 45 days after the Effective Date of this contract Seller shall deliver to Buyer:
(1) copies of all notes and deeds of trust assumed or taken "subject to" by Seller;
(2) copies of all leases pertaining to the Property, including any modifications,supplements,or amendments
to the leases;
(3) copies of all previous surveys, environmental assessments, feasibility studies, title commitments, and
analyses affecting the Property.
8. CLOSING:
(a) The closing of the sale shall be on or before the thirtieth day following the organizational meeting of the Board
of Directors of Buyer, or within 10 days after objections to title or the survey have been cured, whichever
date is later (the "Closing Date").
(b) At closing Seller shall furnish:
(1) tax statements showing no delinquent taxes on the Property;
(2) a General Warranty Deed in the form of Exhibit "B" hereto conveying good and indefeasible title to the
Property showing no additional exceptions to those permitted in paragraph 6; and
(3) evidence that the persons executing this contract are legally capable and authorized to bind Seller.
9. POSSESSION: Seller shall deliver possession of the Property to Buyer on closing in its present condition.
10. APPRAISAL: The Contract Sales Price shall be supported by an acceptable appraisal. If the appraisal reflects a
value less than the Contract Sales Price, the Seller may accept this value as the Contract Sales Price. If the
appraisal reflects a value greater than the Contract Sales Price, the Buyers may accept this value as the Contract
Sales Price or the Seller may cancel this Contract.
Page 2 of 4
1 1. SALES EXPENSES: To be paid in cash at or prior to closing as follows:
(a) Survey to be paid by Buyer;
(b) Inspections and feasibility studies to be paid by Buyer;
(c) Title Policy to be paid by Seller;
(d) General Warranty Deed to be paid by Seller;
(e) Tax certificates to be paid by Seller;
(f) Recording fees to be paid as applicable by Seller and Buyer.
12. PRORATIONS AND ROLLBACK TAXES:
(a) Interest on any assumed loan, current taxes, and any rents shall be prorated through the Closing Date. If the
amount of the ad valorem taxes for the year in which the sale is closed is not available on the Closing Date,
proration of taxes shall be made on the basis of taxes assessed in the previous year. All delinquent taxes due
and owing on the Property shall be paid by Seller at or prior to closing.
(b) Notwithstanding Senate Bill 1033,effective as of September 1, 1997,which waives open-space land roll-back
taxes for a transfer of land to a political subdivision to be used for a public purpose, if this sale or use of the
Property after closing results in the assessment of additional taxes for periods prior to closing, the additional
taxes shall be the obligation of Seller. Obligations imposed by this paragraph shall survive closing.
13. DEFAULT: If Buyer fails to comply with this contract, Buyer shall be in default. Seller may terminate this contract
and receive the Earnest Money as liquidated damages only, thereby releasing the parties from this contract. If
Seller is unable without fault to deliver the Commitment within the time allowed, Buyer may either terminate this
contract and receive the Earnest Money as the sole remedy or extend the time for performance up to 20 days and
the Closing Date shall be extended accordingly. If Seller fails to comply with this contract for any other reason,
Seller shall be in default and Buyer may terminate this contract and receive the Earnest Money, thereby releasing
the parties from this contract.
14. ATTORNEY FEES:. If Buyer, Seller, or Escrow Agent is a prevailing party in any legal proceeding brought under
or with relation to this contract or this transaction, such party shall be entitled to recover from the non-prevailing
parties all costs of such proceeding and reasonable attorney fees. The provisions of this paragraph shall survive
closing.
15. ESCROW: If either party makes demand for the payment of the Earnest Money, Escrow Agent has the right to
require from all parties a written release of liability of Escrow Agent for disbursement of the Earnest Money. Any
refund or disbursement of Earnest Money under this contract shall be reduced by the amount of unpaid expenses
incurred on behalf of the party receiving the Earnest Money, and Escrow agent shall pay the same to the creditors
entitled thereto. At closing, the Earnest Money shall be applied first to any cash down payment, then to Buyer's
closing costs and any excess refunded to Buyer. Demands and notices required by this paragraph shall be in
writing and delivered by hand delivery or by certified mail, return receipt requested.
16. MATERIAL FACTS: Seller shall convey the Property on closing: (i) with no liens, assessments, or other security
interests against the Property which will not be satisfied out of the Sales Price unless securing payment of any
loans assumed by Buyer; (ii) without any assumed loans in default; and (iii) with no parties in possession of any
portion of the Property as lessees, tenants at sufferance, or trespassers except tenants under the written leases
delivered to Buyer pursuant to this contract.
17. NOTICES: All notices shall be in writing and effective when hand-delivered,mailed by certified mail return receipt
requested, or sent by facsimile transmission to:
Buyer: Seller:
Brazoria County Municipal Utility District No. 23 The City of Pearland, Texas
c/o Vinson & Elkins L.L.P. 3519 Liberty Drive
1001 Fannin, Suite 2300 Pearland, Texas 77581
Houston, Texas 77002 Attn: Darrin Coker
Attn: Jim A. Boone
18. FEDERAL TAX REQUIREMENT: If any Seller is a "foreign person", as defined by applicable law, or if Seller fails
to deliver an affidavit that any Seller is not a "foreign person", then Buyer shall withhold from the sales proceeds
at closing an amount sufficient to comply with applicable tax law and deliver the same to the Internal Revenue
Service, together with appropriate tax forms. Internal Revenue Service regulations require filing written reports
if cash in excess of specified amounts is received in the transaction.
19. DISPUTE RESOLUTION: The parties agree to negotiate in good faith in an effort to resolve any dispute related to
this contract that may arise. If the dispute cannot be resolved by negotiation, the dispute shall be submitted to
Page 3 of 4
mediation before the parties resort to arbitration or litigation and a mutually acceptable mediator shall be chosen
by the parties to the dispute who shall share the cost of mediation services equally.
20. AGREEMENT OF THE PARTIES: This contract shall be binding on the parties, their heirs, executors, representa-
tives, successors, and assigns. This contract shall be construed under and in accordance with the laws of the
State of Texas. This contract contains the entire agreement of the parties and cannot be changed except by
written agreement. If this contract is executed in a number of identical counterparts, each counterpart is deemed
an original and all counterparts shall, collectively, constitute one agreement. Buyer may assign this contract. If
Buyer assigns this contract Buyer shall be relieved of any future liability under this contract only if the assignee
assumes in writing all obligations and liability of Buyer under this contract.
21. TIME: Time is of the essence in this contract. Strict compliance with the times for performance stated in this
contract is required.
22. EFFECTIVE DATE: The Effective Date of this contract for the purpose of performance of all obligations shall be
the date this contract is receipted by the Escrow Agent after all parties have executed this contract.
23. MISCELLANEOUS:
(a) If the Property is situated in utility or other statutorily created district providing water, sewer, drainage, or
flood control facilities and services, Chapter 50 of the Texas Water Code requires Seller to deliver and the
Buyer to sign the statutory notice relating to the tax rate, bonded indebtedness, or standby fee of the district
prior to final execution of this contract.
(b) If the Property adjoins or shares a common boundary with the tidally influenced submerged lands of the state,
Section 33.135 of the Texas Natural Resources Code, requires a notice regarding coastal area property to be
included in the contract.
"SELLER"
ATTEST:. CITY OF PEARLAND, BUYER
By:
Young Lorfing, City Secretary N a m e •
T i t I e •
"BUYER"
BEAZER HOMES TEXAS, L.P., a Texas limited partnership,
on behalf of BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 23, to be created
B y •
•
N a m e
Page 4 of 4
RECEIPT
On this day, , Escrow Agent acknowledges receipt of (a) ❑
Contract; and (b) ❑ Earnest Money in the form of
Escrow Agent By:
•
Address: Phone:
•
•
•
•
Page 5 of 4