R2003-0161 10-27-03 RESOLUTION NO. R2003-161
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 BEAZER HOMES
TEXAS, L.P., 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 Beazer Homes Texas, L.P., 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 27thday of October , A.D.,
2003.
gel
TONFREID
MAYOR
ATTEST:
UNG I� n
Y S RETAR
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
1
EXHIBIT
CITY OF PEARLAND `A r
UNIMPROVED PROPERTY EARNEST MONEY CONTRACT
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": Beazer Homes Texas, L.P., a Texas limited partnership, acting by and through its Vice
President of Land Development—Houston Division, Dan Olson.
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: $118,163.00 (15.7 acres)
The Sales Price is to be adjusted based upon a survey, calculated on the basis of the lesser of 17,500.00 per acre of net
area or the value specified in the appraisal described in Section 10. "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 American ' Title Company (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
American Title Company (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 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 20 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, Buyer may obtain 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.
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
Page 1 of 4
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 third party reports of inspections, studies, or assessments completed or caused to be
completed by Buyer under this paragraph and in Buyer's possession or subject to Buyer's control 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 20 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 to be obtained by Seller and
delivered to Buyer within 10 days after the effective date. 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 Buyer may accept this value as the Contract Sales Price or the Buyer may cancel this Contract.
Page 2 of 5
_J
•
11. 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 as its sole and exclusive
remedy 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 enforce specific performance or 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 either (i) enforce specific
performance or(ii)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 and with no leases affecting the Ppoperty in effect.
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:
Beazer Homes Texas The City of Pearland, Texas
10235 W. Little York, Suite 162 3519 Liberty Drive
Houston, TX 77040 Pearland, Texas 77581
Attn: Dan Olson Attn: Darrin Coker
with a copy to:
Schlanger Mills, Mayer&Silver •
109 N. Post Oak Lane, Suite 300
Houston, TX 77024
Attn: Louis Silver
Page 3 of 5
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 mediation
within 30 days after written request by either party after the filing of 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.
Page 4 of 5
(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.
24. REPRESENTATIONS: To induce Buyer to enter into this contract and to purchase the Property, Seller represents,
warrants, and covenants to Buyer as follows, to Seller's current actual knowledge with no duty to investigate:
(a) No condemnation or similar proceeding affecting the Property or any portion thereof presently exists or is
pending. Seller has not heretofore received any notice and has no knowledge that any such proceeding is
contemplated.
(b) There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, trespassers
or otherwise.
(c) Seller has the right, power and authority to enter into this contract, to sell the Property in accordance with the
terms and conditions hereof, and the authority to grant Buyer access to the Property. This contract, when executed
and delivered by Seller, will be a valid and binding obligation of Seller in accordance with its terms.
(d) There is no claim, litigation, or other proceeding, the probable outcome of which will have a material adverse
effect on the value of the Property or its intended use, pending or threatened before any court, commission, or other
body or authority, and, further, Seller has not received written notification of any asserted failure of Seller or the
Property to comply with applicable laws (whether statutory or not) or any rule, regulation, order, ordinance, judgment
or decree of any federal, municipal or other governmental authority.
Seller will not cause or permit any action to be taken which would cause any of Seller's representations or warranties to
be untrue as of the Closing. Seller agrees immediately to notify Buyer in writing of any event or condition which occurs
prior to Closing hereunder,which causes a change in the facts related to, or the truth of, any of Seller's representations.
"SELLER"
ATTEST: CITY OF PEARLAND, BUYER
By:
Young Lorfing, City Secretary Name:
Title:
"BUYER"
BEAZER HOMES TEXAS, L.P., a Texas limited partnership
By: Beazer Homes Texas Holdings, Inc., its general partner
By:
Name:
Title:
Page 5 of 5
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 6 of 5