HomeMy WebLinkAbout05-14-12 Regular Meeting of La Porte City Council
LOUIS RIGBY
DARYL LEONARD
Mayor
Councilmember District 3
JOHN ZEMANEK
TOMMY MOSER
Councilmember at Large A
Councilmember District 4
DOTTIE KAMINSKI
JAY MARTIN
Councilmember at Large B
Councilmember District 5
MIKE MOSTEIT
MIKE CLAUSEN
Councilmember District 1
Councilmember District 6
CHUCK ENGELKEN
Mayor Pro-Tem,Councilmember District 2
CITY COUNCIL MEETING AGENDA
Notice is hereby given of a Regular Meetingof the La Porte City Council to be held May 14,2012,
beginning at 6:00 p.m.in the Council Chambers of City Hall, 604 West Fairmont Parkway, LaPorte,
Texas, for the purpose of considering the following agenda items. All agenda items are subject to
action. The City Council reserves the right to meet in a closed session on any agenda item should
the need arise and if applicable pursuant to authorization by Title 5, Chapter 551, of the Texas
Government Code.
1. CALL TO ORDER
2. INVOCATION
– The invocation will be givenbyRev. Wayne Spears,Fairmont ParkChurch.
3. PLEDGE OF ALLEGIANCE
– The Pledge of Allegiancewill be led by Councilmember Dottie
Kaminski.
4.PRESENTATIONS, PROCLAMATIONS and RECOGNITIONS
(a)
Proclamation – Motorcycle Safety and Awareness Month – Mayor Rigby
(b)
Recognition – 2012 Silver Leadership Circle Award – Mayor Rigby
(c)
Presentation – Municipal Court Traffic Safety Award – MayorRigby
(d)
Presentation – “Employee of the (First)Quarter” Mike Martin (Police Officer) –Mayor Rigby
5. PUBLIC COMMENTS
(Limited to five minutesper person.)
6. CONSENT AGENDA
(a)
Consider approval or other action of the minutes of the City Council meeting held on
April 23, 2012 – P. Fogarty
(b)
Consider approval or other action regarding the appointment of Travis Stiver to the
LaPortePolice Reserve Force – K. Adcox
(c)
Consider approval or other action awarding Bid # 12020 for Crawler/Excavator and Bid #
12021 for Truck Mounted Hydraulic Cleaning and Vacuum – D. Mick
(d)
Consider approval or other action regardingan ordinance authorizing the Interim City
Manager to execute an Industrial District Agreement and Water Service Agreement with
BayparkIndustrial Properties, L.P. – T. Tietjens
7. AUTHORIZATIONS/ORDINANCES
(a)
Consider approval or other action regarding an ordinance amending Chapter 78, “Vehicles
for Hire,” of the La Porte Code of Ordinances, regarding regulation/permitting of emergency
tow truck operators – T. Tietjens
(b)
Consider approval or other actionregarding the La Porte Area Water Authority
authorization foritsGeneral Manager to execute an agreement with the City of Houston to
release $138,898.00 from the La Porte Area Water Authority contingency reserve – D. Mick
(c)
Consider approval or other action regarding appointing members to the Citizens’ Charter
ReviewAdvisory Commission –P. Fogarty
(d)
(e)
8. DISCUSSION OR OTHER ACTION
(a)
(b)
9. STAFF REPORTS
(a)
(b)
10. ADMINISTRATIVE REPORTS
(a)
(b)
(c)
(d)
11. COUNCIL COMMENTS
12. EXECUTIVE SESSION
Texas Government Code, Section 551.074 –
13.RECONVENE
14. ADJOURN
I
n compliance with the Americans with Disabilities Act, the City of La Porte will provide for reasonable accommodations
for persons attending public meetings. To better serve attendees, requests should be received 24 hours prior to the
meeting. Please contact Patrice Fogarty, City Secretary, at 281.470.5019.
CERTIFICATION
Council Agenda Item
May 14, 2012
1.CALL TO ORDER
2.INVOCATION
3.PLEDGE OF ALLEGIANCE
4.PRESENTATIONS, PROCLAMATIONS and RECOGNITIONS
(a)
(b)
(c)
(d)
5.PUBLIC COMMENTS
***********************************************************************************
Recently, Texas Municipal Court Association (TMCA) Board President, Judge Donna
Starkey awarded the La Porte Municipal Court a 2012 Traffic Safety Award from the
Texas Municipal Courts Education Center during the Traffic Safety Initiatives
Conference. The goal of this program, which is funded by the Texas Department of
Transportation, is to recognize municipal courts that have made outstanding contributions
to their communities in the area of traffic safety.
Applicants were judged on the basis of what their court is doing in terms of public
outreach in traffic safety in an effort to reduce automobile crashes, traffic fatalities,
driving under the influence, child safety seat offenses, red light running, and other traffic
related offenses.
La Porte’s Municipal Court is among 21 courts statewide selected to receive an award.
This is the fourth consecutive year that La Porte Municipal Court has been a recipient of
this prestigious award.
The Court’s application highlighted the R.O.C.K. Juvenile Community Service Program,
several outreach programs with L.P.I.S.D., it’s focus on DOT and Federal Motor Carrier
Law education, the use of License Plate Readers to clear outstanding warrants,
participation in community events such as National Night Out, Municipal Court Week
and Citizens Police Academy; and participation in several DWI “no refusal” operations.
It is my honor to recognize the outstanding effort and work that the La Porte Municipal
Court provides to our community. Please join me in congratulating Municipal Court
Judge, Denise Mitrano, and the entire La Porte Municipal Court staff- Lynda Kilgore,
Mary Ann Harrison, Sonya Cates, Lisa Szydek, Carolyn Cope, Terry Rojas, Veronica
Rodriguez, and Beverly Washmon- on this well-deserved award.
Officer Mike Martin
Employee of the Quarter
Officer Mike Martin was nominated for a Police Purple Heart by his peers and is also
st
being recognized by the City of La Porte’s Awards Committee as the 1 Quarter, 2012
Employee of the Quarter.
The incident that Officer Martin is being recognized for occurred on November 8, 2002
and set into motion 10 years of endless surgeries, pain management, and rehabilitation.
Officer Martin was on duty and was assisting another officer who had pursued a suspect
into the City of Baytown. As is so often the case when as suspect runs from the police,
the involved suspect began to actively and aggressively resist arrest once caught.
During the fight, Officer Martin was thrown to the concrete causing significant injury to
his back and left hip. Although injured, Officer Martin continued to assist the other
officer until the suspect could be appropriately restrained and taken into custody.
As a result of the injuries caused that date, Officer Martin has undergone several
surgeries, extensive rehabilitation, and a daily regimen of medication and pain
management therapies. Officer Martin’s injuries have had lasting effects on his quality
of life and continue to take a physical toll on him even today.
Despite these challenges, Officer Martin has remained in good spirits and continues to
strive to make a difference in our community each and every day. We thank Officer
Martin for his dedication and the sacrifice he has made in order to keep our City safe.
And, it is for this reason that we are honored to recognize him as the City of La Porte’s
Employee of the Quarter.
LOUIS RIGBY
DARYL LEONARD
JOHN ZEMANEK
TOMMY MOSER
DOTTIE KAMINSKI
JAY MARTIN
MIKE MOSTEIT
MIKE CLAUSEN
CHUCK ENGELKEN
MINUTES OF THE REGULAR MEETING OF THE
CITY COUNCILOF THE CITY OF LA PORTE
APRIL23, 2012
Monday, April 23, 2012,
6:00 p.m
1.CALL TO ORDER
2.INVOCATION
3.PLEDGE OF ALLEGIANCE
4.PRESENTATIONS, PROCLAMATIONS and RECOGNITIONS
(a)
(b)
5. PUBLIC COMMENTS
Page 1 of 6
April 23, 2012, City Council Meeting Minutes
6. CONSENT AGENDA
(a)
(b)
(c)
(d)
(e)
Resolution2012-03:
Resolution2012-04:
Ordinance2012-3409:
Ordinance2012-3410:
MOTION PASSED.
Page 2 of 6
April 23, 2012, City Council Meeting Minutes
7. AUTHORIZATIONS
(a)
MOTION PASSED.
(b)
MOTION
PASSED.
(c)
MOTION PASSED.
Page 3 of 6
April 23, 2012, City Council Meeting Minutes
(d)
(e)
MOTION PASSED.
8.DISCUSSION OR OTHER ACTION
(a)
Page 4 of 6
April 23, 2012, City Council Meeting Minutes
MOTIONPASSED.
9.STAFF REPORTS
(a)
(b)
10.ADMINISTRATIVE REPORTS
(a)
(b)
(c)
(d)
11.COUNCIL COMMENTS
Page 5 of 6
April 23, 2012, City Council Meeting Minutes
12. EXECUTIVE SESSION
Texas Government Code, Section 551.072 –
Texas Government Code, Section 551.074 –
13.RECONVENE
14.ADJOURN
Page 6 of 6
April 23, 2012, City Council Meeting Minutes
Article III, Section 54-61 of the Code of Ordinances and the Texas Government Code, Section
341.012, both entitled “Police Reserve Force”, require that persons appointed by the Chief of
Police as reserve police officers must be approved by City Council before they may carry a
weapon or otherwise act as a peace officer.
The Departmentis requesting that City Council approve the appointment of Travis Stiver to
the Police Reserve Force.Mr. Stiver is currently a licensed Texas Peace Officer and has
passed all required screenings and interviews for a Reserve Officer appointment.
Approve the appointment of Travis Stiverto the La Porte Police Reserve Force.
Sealed proposals for Bid # 12020 Diesel Powered Industrial Crawler Excavator and Bid # 12021
Truck Mounted Hydraulic Cleaning and Vacuum Unit werereceived on April 24, 2012. The list
of vendors notified and those returning bids are attached. Low bid for equipment meeting
specifications or best value are as follows:
Wowco Equipment Bid 12020 –Excavator
[1] (Account # 009-7085-$ 57,159 $ 92,355 PW –Streets Div.
533-8050)
Houston Bid 12021 –Sewer
Freightliner, IncVacuum Truck (Account $230,000$251,908PW –San. Sewer
# 009-7086-532-8050)
1
WowcoEquipment Model # KX121S3T3, first apparent low bid, was disqualified for failure to
meet specifications on fuel capacity, operating weight, track shoe width, digging depth and break
out force. The second apparent low bid, Bobcat of Houston, was disqualified for failure to meet
specifications for digging depth, maximum reach and breakout force. Wowco Equipment Model
#KX057S3A is the first low bid that met specifications with one exception permitted by the Fleet
Services Division for auxiliary hydraulic location.
Award BidItems 1 – 5 (entire bid) from Bid No. 12012 in the amounts bid by Lowest Qualified
Bidders meeting specifications.
Baypark Industrial Properties, L.P.has approached the City for water service to its15 acre site located
immediately north of its existing facility at 13103 Baypark Road (see Area Map). The company plans to
create40full-time positions which will require a total of 2,000 gallons per day for domestic uses only.
Council has approved a policy forwater service to companies outside the city limits and within the City’s
industrial districts.Per the policy, the company isrequired to execute and maintain an Industrial District
Agreement (IDA) with the City.Baypark Industrial Properties, L.P. desires to obtain its water service
under the terms of thispolicy.
Per the policy’s terms,Baypark Industrial Properties, L.P. will pay one and one-half (1-1/2) times the
City’s current utility ratefor water serviceandis subject to a one-time administrative fee associated with
its Water Service Agreement (WSA) in the amount of $5,000for which paymenthas subsequently been
received. Additionally, the company has executed its part ofthenew Industrial District Agreementfor
the site (2007-IDA-126).
The terms of the company’sIDA and WSAwill expire on December 31, 2019, plus any renewals and
extensions thereof. However, the company’s WSAwill automatically expire at such time as there is no
effective Industrial District Agreement between the parties, or, if the City exercises its right of
termination.
Consider approval or other action ofan ordinance authorizing the Interim City Manager to execute an
Industrial District Agreement and a Water Service Agreementwith Baypark Industrial Properties, L.P.
1 inch = 400 feet
LOCATION OF TRACT
UNDER NEW IDA & WSA
ORIGINAL AREA
UNDER 2007-IDA-92
AREA MAP
At the April 23 City Council meeting, a workshop was held to discuss a request to consider an
amendment to Chapter 78, Vehicles for Hire, of the La Porte Code of Ordinances, which
provides the regulatory framework for emergency, non-consent towing in La Porte.The direction
received was to remove the existing requirement that the property on which towed vehiclesare
stored must be owned by the operator of the vehicle storage facility. Additionally, direction was
provided to include a variance process tothe Wrecker Committee with appeal to City Council, as
well as to allow for review of performance and response of the permitted wrecker operators.
The attached ordinance accomplishes the above specified actions and is submitted for Council
consideration. The yellow highlight is applicable carryover language from the versions
rd
considered at the April 23 meeting, while the green highlighted language has been newly added
in response to Council directives.
Consider approval or other action of an amendment to Chapter 78, Vehicles for Hire, of the La
Porte Code of Ordinances.
:
Chapter 78, “Vehicles for Hire,” Article III “Automobile Wreckers and Towing
Vehicles”, Division 3 “Permits”, Subdivision III “AutoWrecker Permit”,Section 78-297
“Applications”,of the Code of Ordinances of the City of La Porte, Texas, is hereby amended by
amending subsection “5” , paragraph “d” , to said Section 78-297, which shall hereinafter read as
follows, to wit:
…
“(5) In determining whether the permit shall be granted, the committee shall take into
consideration the following:
…
d.That the applicant provide proof of 1) ownership of a properly fenced storage facility for
towed vehicles or a contract with the owner, lessee, or other authorized user of a properly
fenced storage facility for towed vehicles, allowing applicant to use the facility. In those
cases where an applicant relies on a contract made with a party other than the actual owner
of the facility, applicant shall provide satisfactory evidence that the use of the facility by
applicant is permitted by the owner; 2) the size of his business location and lot; and 3) that
the lot is located within the city limits and conforms to the use, setbacks, parking,
screening, landscaping and any other applicable regulations as set for in Chapter 106of
this Code. It is the responsibility of the applicant to request a site inspection from the
planning department, inspections division, prior to the hearing;”
…
Chapter 78, “Vehicles for Hire,” Article III “Automobile Wreckers and Towing
Vehicles”, Division 3 “Permits”, Subdivision III “Auto Wrecker Permit”, Section 78-297
“Applications”, of the Code of Ordinances of the City of La Porte, Texas, is hereby amended by
adding new paragraph “6” , to said Section 78-297, which shall hereinafter readas follows, to wit:
…
“(6) An applicant that fails to satisfy one or more of the requirements for acquiring an auto
wrecker permit as established in this section may petition the committee for a variance. A
request for a variance shall be submitted simultaneously with the application for operation
of an emergency auto wrecker(s), and shall state specifically the grounds for the request,
including a showing why compliance with this articleis notreasonably possible.The
committee may impose additional requirements in any variance granted to a wrecker
operator, but in no case shall it be empowered to grant a variance for use of a storage
facility that is not located within the city limits, or that is contrary to federaland state
laws, or city regulations established outside of this article. A person may appeal the grant
or denial of a variance by the committee to the La Porte City Council, but only as part of an
appeal of the committee’s final ruling on the underlying application for an emergency auto
wrecker permit(s), in accordance with the general appeal procedures in Section 78-224 of
this chapter.”
…
Chapter 78, “Vehicles for Hire,” Article III “Automobile Wreckers and Towing
Vehicles”, Division 2 “Wrecker Committee”, Section 78-223 “Revocation or suspension of auto
wrecker or towing vehicle permits”, of the Code of Ordinances of the City of La Porte, Texas, is
hereby amended by amending said Section 78-223, which shall hereinafter read as follows, to wit:
“Sec. 78-223. – Revocation or suspension of auto wrecker or towing permits.
(a)Upon a complaint being filedbyanypersonwith the citysecretary, or upon motion of any
member of thecommittee,allegingeither 1) a violation of any of the termsor provisions of
thisarticle, 2) theviolation of any of the lawsofthestate,federal government or city, or 3)
substandard or non-performanceby a permit holder under the requirements of Division 4
“Regulations” of thischapter, the committeemay,after tendays'written notice to the
permit holder stating the grounds of suchcomplaint, conduct a hearingtohearevidence
withreferencetosuchcomplaint or motion. Should such hearing reveal a violation of any
of the terms of thisarticle or the laws of this stateorfederal government or other
ordinances of the city,thecommitteemay suspend, cancel or revoke the permit or permits
of suchpermit holder, as the offensemaydirect.
(b)After the committeehashelditshearingandinvestigation upon the complaint or motion
for the suspension, cancellation or revocation of a permit of any owner of a towing vehicle
or anautowreckershall have the righttoappealto the city council withintendaysfrom the
receipt of the writtendecision of the committee, but onlyin the event of a revocation of the
permit of the owner by the committee.Suchappealshall be in the form of a letter
addressedanddeliveredto the citysecretary,statingthatanappealisdesiredfrom the
revocation of the committee.Thecitysecretaryshall notify the citycouncil of suchappeal,
and the council, as soon aspracticablethereafter,shall notify theappellantasto whether or
not suchanappealwill be heard. If the citycouncil grants suchanappeal,itshalleither
sustain or reverse the revocation of the committee.If no appealistakenfromthe
committee'sactionwithintendays,asset out inthis subsection, the decision of the
committeeshall be final.”
Chapter 78, “Vehicles for Hire,” Article III “Automobile Wreckersand Towing
Vehicles”, Division 2 “Wrecker Committee”, Section 78-224 “Right of appeal from the rulings or
findings of the committee”, of the Code of Ordinances of the City of La Porte, Texas, is hereby
amended by amending said Section 78-224, which shall hereinafter read as follows, to wit:
“Sec.78-224. Right of appeal from the rulings or findings of the committee.
Subjecttorestrictions on appeal undersection78-223 of thisarticle, on allissuesheardby
the committeethereis a generalright of appealto the citycouncil.After the wrecker
committeehasmadeits findings anddeclares such findings, the applicant, or any person
opposing the applicationwhoenteredanappearanceat the hearingbefore the committee,
shall have therighttofileanappealwithintendaysfrom the receipt of the citysecretary's
writtennotice, or from the date of the published notice,asapplicable.Theappealshallbe
in the form of a letteraddressedto the citysecretarystatingthatanappealfromthe
decision of the committeeisdesired.Thecitysecretaryshall notify the city council of such
appeal, and the council, as soon aspracticable,afterreceivingsuchnotice of appeal,
together with the findings of the committee, shall grant or deny,in open session,such
applicationfor a hearing.If a hearingisgranted, the city council shall sustain, modify or
reverse the findings madeby the committeeandshallso notify the citysecretary of its
findings. The findings of the citycouncilshall be final.If no appealismadeto the city
council from the committee'sdecisionwithintendays,asindicatedinthissection,then
suchdecisionshallbecomefinal
If any provision, section, subsection, sentence, clause, or phrase of this ordinance,
or the application of same to any person or set of circumstances is for any reason held to be
unconstitutional, void or invalid, the validity of the remaining portions ofthis ordinance or their
application to other persons or sets of circumstances shall not be affected thereby, it being the
intent of the City Council in adopting this ordinance that no portion hereof or provision or
regulation contained herein shall becomeinoperative or fail by reason of any unconstitutionality,
vividness or invalidity of any other portion hereof, and all provisions of this ordinance are declared
to be severable for that purpose.
All ordinances or parts of ordinances inconsistent with the terms of this ordinance
are hereby repealed; provided, however, that such repeal shall be only to the extent of such
inconsistency and in all other respects this ordinance shall be cumulative of other ordinances
regulating and governing the subject matter covered by this ordinance.
Any person who violates a provision of this ordinance, upon conviction in the
municipal court of the City of La Porte shall be subject to fine not to exceed two thousand dollars
($2000.00). Each day of violation shall be considered a separate offense.
The City Council officially finds, determines, recites and declares that a sufficient
written notice of the date, hour, place and subject of this meeting of the City Council was posted at
a place convenient to the public at the City Hall of the City for the time required by law preceding
this meeting, as required by the Open Meetings Law, and that this meeting has been open to the
public as required by law at all times during which this ordinance and the subject matter thereof
has been discussed, consideredand formally acted upon. The City Council further ratifies,
approves and confirms such written notice and the contacts and posting thereof.
This Ordinance shall be effective fourteen (14) days after its passage and approval.
The City Secretary shall give notice of the passage of this ordinance by causing the caption hereof
to be published in the official newspaper of the City of La Porte at least once within ten (10) days
after the passage of this ordinance, in accordance with the City of La Porte Charter.
PASSED AND APPROVED, this the ____day of _____________, 2012.
By:
Louis R. Rigby, Mayor
Patrice Fogarty
City Secretary
Clark T. Askins
Assistant City Attorney
:
Chapter 78, “Vehicles for Hire,” Article III “Automobile Wreckers and Towing
Vehicles”, Division 3 “Permits”, Subdivision III “AutoWrecker Permit”,Section 78-297
“Applications”,of the Code of Ordinances of the City of La Porte, Texas, is hereby amended by
amending subsection “5” , paragraph “d” , to said Section 78-297, which shall hereinafter read as
follows, to wit:
…
“(5) In determining whether the permit shall be granted, the committee shall take into
consideration the following:
…
d.That the applicant provide proof of 1) ownership of a properly fenced storage facility
for wreckedtowedvehicles or a contract with the owner, lessee, or other authorized user of
a properly fenced storage facility for towed vehicles, allowing applicant to use the facility.
In those cases where an applicant relies on a contract made with a party other than the
actual owner of the facility, applicant shall provide satisfactory evidence that the use of the
facility by applicant is permitted by the owner; 2) the size of his business location and lot;
and 3)that the lot is located within the city limits and conforms to the use, setbacks,
parking, screening, landscaping and any other applicable regulations as set for in Chapter
106 of this Code. It is the responsibility of the applicant to request asite inspection from
the planning department, inspections division, prior to the hearing;”
…
Chapter 78, “Vehicles for Hire,” Article III “Automobile Wreckers and Towing
Vehicles”, Division 3 “Permits”, Subdivision III “Auto Wrecker Permit”, Section 78-297
“Applications”, of the Code of Ordinances of the City of La Porte, Texas, is hereby amended by
adding new paragraph “6” , to said Section 78-297, which shall hereinafter read as follows,to wit:
…
“(6) An applicant that fails to satisfy one or more of the requirements for acquiring an auto
wrecker permit as established in this section may petition the committee for a variance. A
request for a variance shall be submitted simultaneously with the application for operation
of an emergency auto wrecker(s), and shall state specifically the grounds for the request,
including a showing why compliance with this articleis not reasonably possible.The
committee may impose additional requirements in any variance granted to a wrecker
operator, but in no case shall it be empowered to grant a variance for use of a storage
facility that is not located within the city limits,or that is contrary to federal and statelaws,
or city regulations established outside of this article.A person may appeal the grant or
denial of a variance by the committee to the La Porte City Council, but only as part of an
appeal of the committee’s final ruling on the underlying application for an emergency auto
wrecker permit(s), in accordance with the general appeal procedures in Section 78-224 of
this chapter.”
…
Chapter 78, “Vehicles for Hire,” Article III “Automobile Wreckers and Towing
Vehicles”, Division 2 “Wrecker Committee”, Section 78-223 “Revocation or suspension of auto
wrecker or towing vehicle permits”, of the Code of Ordinances of the City of La Porte, Texas, is
hereby amended by amending said Section 78-223, which shall hereinafter read as follows,to wit:
“Sec. 78-223. – Revocation or suspension of auto wrecker or towing permits.
(a)Upon a complaint being filedbyanypersonwith the citysecretary, or upon motion of any
member of thecommittee,allegingeither 1) a violation of any of the termsor provisions of
thisarticle, 2) theviolation of any of the lawsofthestate,federal government or city, or 3)
substandard or non-performanceby a permit holder under the requirements of Division 4
“Regulations” of thischapter, the committeemay,aftertendays'written notice to the
permit holder stating the grounds of suchcomplaint, conduct a hearingtohearevidence
withreferencetosuchcomplaint or motion. Should such hearing reveal a violation of any
of the terms of thisarticle or the laws of thisstateorfederal government or other
ordinances of the city,thecommitteemay suspend, cancel or revoke the permit or permits
of suchpermit holder, as the offensemaydirect.
(b)After the committeehashelditshearingandinvestigation upon the complaint or motion
for the suspension, cancellation or revocation of a permit of any owner of a towing vehicle
or anautowreckershall have the righttoappealto the city council withintendaysfrom the
receipt of the writtendecision of the committee, but only in the event of a revocation of the
permit of the owner by the committee.Suchappealshall be in the form of a letter
addressedanddeliveredto the citysecretary,statingthatanappealisdesiredfrom the
revocation of the committee.Thecitysecretaryshall notify the citycouncil of suchappeal,
and the council, as soon aspracticablethereafter,shall notify theappellantasto whether or
not suchanappealwill be heard. If the citycouncil grants suchanappeal,itshalleither
sustain or reverse the revocation of the committee.If no appealistakenfromthe
committee'sactionwithintendays,asset out inthis subsection, the decision of the
committeeshall be final.”
Chapter 78, “Vehicles for Hire,” Article III “Automobile Wreckers and Towing
Vehicles”, Division 2 “Wrecker Committee”, Section 78-224 “Right of appeal from the rulings or
findings of the committee”, of the Code of Ordinances of the City of La Porte, Texas, is hereby
amended by amending said Section 78-224, which shall hereinafter read as follows,to wit:
“Sec.78-224. Right of appeal from the rulings or findings of the committee.
Subjecttorestrictions on appeal undersection78-222 78-223 of thisarticle, on allissues
heardby the committeethereis a generalright of appealto the citycouncil.After the
wreckercommitteehasmadeits findings anddeclaressuch findings, the applicant, or any
person opposing the applicationwhoenteredanappearanceat the hearing beforethe
committee,shall have the righttofileanappealwithintendaysfrom the receipt of the city
secretary'swritten notice, or from the date of the published notice,asapplicable.The
appealshall be in the form of a letteraddressedto the citysecretarystatingthatanappeal
from the decision of the committeeisdesired.Thecitysecretaryshall notify thecity
council of suchappeal, and the council, as soon aspracticable,afterreceivingsuch notice
of appeal, togetherwith the findings of the committee,shallgrantordeny,in open session,
suchapplicationfor a hearing.If a hearingis granted, the citycouncilshall sustain, modify
or reverse the findings madebythecommitteeandshallso notify the citysecretaryofits
findings. The findings of the citycouncilshall be final.If no appealismadeto the city
council from the committee'sdecisionwithintendays,asindicatedinthissection,then
suchdecisionshallbecomefinal
If any provision, section, subsection, sentence, clause, or phrase of this ordinance,
or the application of same to any person or set of circumstances is for any reason held to be
unconstitutional, void or invalid, the validity of the remaining portions ofthis ordinance or their
application to other persons or sets of circumstances shall not be affected thereby, it being the
intent of the City Council in adopting this ordinance that no portion hereof or provision or
regulation contained herein shall becomeinoperative or fail by reason of any unconstitutionality,
vividness or invalidity of any other portion hereof, and all provisions of this ordinance are declared
to be severable for that purpose.
All ordinances or parts of ordinances inconsistent with the terms of this ordinance
are hereby repealed; provided, however, that such repeal shall be only to the extent of such
inconsistency and in all other respects this ordinance shall be cumulative of other ordinances
regulating and governing the subject matter covered by this ordinance.
Any person who violates a provision of this ordinance, upon conviction in the
municipal court of the City of La Porte shall be subject to fine not to exceed two thousand dollars
($2000.00). Each day of violation shall be considered a separate offense.
The City Council officially finds, determines, recites and declares that a sufficient
written notice of the date, hour, place and subject of this meeting of the City Council was posted at
a place convenient to the public at the City Hall of the City for the time required by law preceding
this meeting, as required by the Open Meetings Law, and that this meeting has been open to the
public as required by law at all times during which this ordinance and the subject matter thereof
has been discussed, consideredand formally acted upon. The City Council further ratifies,
approves and confirms such written notice and the contacts and posting thereof.
This Ordinance shall be effective fourteen (14) days after its passage and approval.
The City Secretary shall give notice of the passage of this ordinance by causing the caption hereof
to be published in the official newspaper of the City of La Porte at least once within ten (10) days
after the passage of this ordinance, in accordance with the City of La Porte Charter.
PASSED AND APPROVED, this the ____day of _____________, 2012.
By:
Louis R. Rigby, Mayor
Patrice Fogarty
City Secretary
Clark T. Askins
Assistant City Attorney
All Exhibits Unsigned Pending Authorization
The La Porte Area Water Authority (LPAWA) was created by the Texas Legislature effective
January 1982. The enabling legislation for the LPAWA stipulates that the authority must first
secure the approval of the City of La Porte city councilbefore entering into a contract.The
enabling legislation also names the City Manager for the City of La Porte as the General
Manager for the authority.
Member cities of the LPAWA include La Porte, Shoreacres, and Morgan’s Point. The LPAWA
contracts to purchase water from the Southeast Houston Water Purification Plant (SEWPP)
located on Genoa-Red Bluff Road and is alsoa co-owner (3.9% share) of the plant. The City of
Houston is the majority owner and is responsible by contract for the day-to-day operations of the
plant and is also responsible for preparing an annual budget that is approved by the co-owners.
th
Houston then invoices the co-owners 1/12of the co-owner’s share each month. Any balance
(or shortfall) remaining at the end of the budget year is refunded to (or paid by in the case of a
shortfall) the co-owners and is referred to as a “True Up.”
Recent attempts by the City of Houston to reach back and collect up to four years of “True-Up”
costs have been the subject of a dispute between Houston and the remaining SEWPP owners for
the past 16-months. In an attempt to resolve the dispute, Houston has now submitted a proposed
settlement agreement to each of the co-owners with the basic terms of the agreement consisting
of Houston agreeing to relinquish any future claims for additional costs associated with FY 2007,
FY 2008, and FY 2009 in consideration of the co-owner agreeing to pay the FY 2010 True Up
claimed by Houston. The LPAWA share of the FY 2010 True Upis $138,898.00. There will be
no impact to the LPAWA operating budget if the board agrees to pay the $138,898 because the
funds come from the LPAWA contingency reserve already held by Houston.
The City of Pasadena, Gulf Coast Water Authority, and the Clear Lake Water Authority are the
largest three co-owners of the SEWPP outside of Houston controlling 75% of the non-Houston
share of the plant ownership. All three have either executed the settlement agreement or are now
in the process of doing so. This being the case, the LPAWA board of directors may conclude
that the LPAWA options are to either execute the agreement or continue to dispute the True-Up
costs accruing legal expenses that are likely to exceed the amount of the proposed settlementand
with no guarantee that the board will prevail in the dispute.
Moving forward the co-owners will continue to compare the City of Houston cost to operate the
SEWPP operations against the cost of contract plant operations and consider potential
opportunities to contract plant management and/or operation duties witha private contractor.
The LPAWA will meet May 9, 2012 to consider approval of a proposed settlement agreement.
This item is placed on the City Council agenda considering that the LPAWA board may likely
approve the agreementand the recommended action below is predicated on the LPAWA Board
approving the settlement agreement.Should the agreement not approved by the board, this item
will be pulled from the meeting agenda.
Consider approval or other action of the LPAWA board authorization for the General Manager to
execute an agreement with the City of Houston to release $138,898 from the LPAWA
contingency reserve to fund the FY 2010 True Up cost claimed by the City of Houston with the
City of Houston agreeing to relinquish any future claims for FY 2007, FY 2008, FY 2009, and
FY 2010.
City Council has determined the need for a review of the City Charter, and established a Charter Review
Advisory Commission at the April 23 council meeting. Regarding the makeup of the Citizens’ Charter
Review Advisory Commission, each councilmemberhas the opportunity to appoint a person to serve on
the review commission. Staff proposes the meetings to start by July; so, appointing members to the
commissionat this time is appropriate and necessary. Names received for appointment thus far are as
follows:
Louis Rigby, Mayor Chuck Harrington
John Zemanek, At Large A David Brady
Dottie Kaminski, At Large B Stan Sherwood
Mike Mosteit, District 1 Nolan Allen
Chuck Engelken, District 2 Nancy Lotze
Daryl Leonard, District 3 ___________________
Tommy Moser, District 4 Mark Follis
Jay Martin, District 5 Paul Feazelle
Mike Clausen, District 6 Tim Cowart
Consider approval or other action regarding appointment of citizens to serve on the Citizens’ Charter
Review Advisory Commission.
Steve Gillett, InterimCity Manager Date
In January 2008, the City entered into a lease agreement with the Economic Alliance Houston Port
Region. The agreement had a term of ten years and outlined a number of economic development services
that were to be provided on behalf of the City plus membership in the Economic Alliance in exchange for
use of the 908 W. Main building and adjacent parking lot. Additionally, as part of the lease, the City
agreed to reimburse the Alliance for a grant that was obtained on the City’s behalf that funded the
construction of the gateway towers and for improvements to the building. As of the bi-annual
reconciliation of credits, which was completed by the City and the Alliance and includes the grant for the
Gateway and the improvements to the board room, the amount currently owed by the City is
approximately $84,000.
The City has been actively advertising the sale of both 908 and 912 W. Main. Both properties are close to
securingan earnest money contract for sale and in order to facilitate the sale of 908 W. Main, the Alliance
would need to relocate. The attached lease termination agreement voids the remainder of the lease terms,
under the following conditions:
Alliance vacates 908 W. Main by June 30, 2012
City agrees to pay $65,000 in full and final consideration of all credits owed the Alliance under
the existing lease agreement
City agrees to enter into the standard membership agreement that the Alliance has in place with
other client cities for a term of 6 years at $20,000 per year; subject to annual appropriation and
approval by City Council
Staff recommends approval of the lease termination agreement to facilitate the sale of 908 W. Main
Street.
Consider approval or other action authorizing the Interim City Manager to sign a lease termination
agreement and development services agreement with the Economic Alliance Houston Port Region.
This Settlement Agreement (the “Agreement”) is made and entered into as of
May ___ 2012, (the “Effective Date”), by and betweenthe City of La Porte, Texas,
(“La Porte”), a municipal corporation, andEconomic Alliance Houston Port Region,
(“Alliance”), a non-profit organization. La Porte and Alliancemay be referred to
herein individually as a “Party” and, collectively, as the “Parties”.
Recitals
Whereas,La Porte and Alliance entered into a lease agreement dated January
1, 2008, whereby La Porte leased land and improvements situated thereon, located at
908 West Main Street, to Alliance, for a ten (10) year term.A copy of the lease
agreement is attached hereto as Exhibit A and is incorporated by reference for all
purposes;
Whereas, La Porte believes it is in the best interest of the City of La Porte and
its citizens to remove both the property leased to the Alliance at 908 West Main
Street and the adjoining building at 912 West Main Street from public ownership and
to return these facilities to the private sector;
Whereas,La Porte and Alliance agree that it would be to the mutual benefit of
both Parties to terminate the lease agreement before the end of the current term, and
for Alliance to vacate the subject property as soon as possible;
Whereas,without admitting any liability or fault, the Parties have agreed to
settleall outstanding claims and issues in connection with the early termination of
the lease, and to fully release each other from any liability resulting therefrom;
Now Therefore, in consideration of the foregoing the Parties agree to the
following terms:
Agreement
1. La Porte and Alliance hereby agreethat the lease agreement for 908 West
Main Streetand attached hereto as Exhibit Ais and shall be terminated as of the
effective date of this agreement.
2. La Porte agrees to give the Alliance sufficient time to remove its property
from the premises at 908 West Main Street after the effective termination of the lease
agreement, but in no case longer than June 30, 2012. In this regard Alliance agrees to
completely vacate the premises (to include removal of all property of any type or
character owned by Alliance) by 5:00 P.M. onJune 30, 2012, and return possession
of same to La Porte. La Porte shall have the opportunity to inspect the property for
any damage or structural defects, normal wear and tear excepted, before acceptance
of the property.
3.Alliance agrees to compensate La Porte for the actual cost to repair any
damages to the structure at 908 West Main Street (normal wear and tear excepted)
and/or agrees to offset such cost against any payment(s) made by La Porte to
Alliance pursuant to other provisions of this agreement.
4.In consideration of Alliance’s agreement to terminate the subject lease
agreement for 908 West Main Street, and to compensate Alliance for expenses
incurred in making structural improvements to the leased premises, La Porte shall
agree to a) remit to Alliance a single lump sum payment in the amount of
$65,000.00, in full satisfaction of its claim for reimbursement for improvements
made to the premises, as well as for any and all claims for credits, offsets, or other
benefits due to Alliance under the terms of the lease agreement between the Parties;
and b) enter into an Economic Development Services Agreement (“Services
Agreement”) with Alliance under which the City of La Porte will pay the Alliance an
annual $20,000.00 membership fee, a copy of which is attached hereto as Exhibit B
and incorporated byreference for all purposes. The Services Agreement will be
executed by the Parties by separatewritten instrument, but subject to conditions
stated in Articles IV and V of said Services Agreement.
5. La Porte and Alliance (in this section, each a “Releasing Party”), each
hereby fully, completely, and forever RELEASES AND DISCHARGES the other
Party hereto (in this section, the “Released Party”) and all of the Released Party’s
officers, directors, shareholders, partners, affiliates, employees, agents, attorneys,
and representatives from any and all liabilities, claims or causes of action, damages
of any kind whatsoever, at common law, statutory or otherwise, which Releasing
Party has or might have, known or unknown, now existing or that might arise
hereafter, directly or indirectly attributable to the lease agreement and termination of
sameand any transactions between Alliance and La Porte in connection therewith, it
being intended to release all claims of any kind which Releasing Party has or might
have against Released Party, whether referred to herein or not, arising out of the facts
underlying the lease agreement and termination of sameand all prior dealings
between the Parties in connection therewith.
6.Each signatory hereto warrants and represents that he or she has authority to
bind the parties for whom that signatory acts.
7.This agreement is not subject to revocation and is enforceable in the same
manner as any other written contract. The prevailing party, in a suit for breach of
this agreement, is entitled to an award for its reasonable and necessary attorneys’
fees from the non-prevailing party.
8.This agreement shall be binding upon and inure to the benefit of the
representatives, successors and assigns, trustees, agents, attorneys, and legal
representatives of the parties.
9.The parties further acknowledge and state that there are no representations,
agreements, arrangements, or understandings, oral or written, concerning the subject
matter of this agreement that are not fully expressed and incorporated herein.
10.In executing this agreement, the parties represent that they have not relied
upon any statement or representation pertaining to this matter made by another party,
or any other person or persons representing such other party.
11.This agreement is governed by Texas law, and any suit concerning this
agreement must be brought in Houston, Harris County, Texas.
12. This Agreement may be executed in multiple counterparts, each of which will be
considered and original, but which taken together will constitute one and the same
document.
13. Each of the Parties represents and warrants: that it has not assigned any of the
claims (the “Claims”) which it purports to release hereby; that it is the holder of such
Claims; and, that it is authorized to enter into this Agreement and to take the actions
contemplated hereby.
IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement as of the day and year first above written.
CITY OF LA PORTE, TEXAS
By: ____________________________ Attest:
Printed Name: Steve Gillett ______________________
Title: Interim City Manager Print Name:
Approved as to Form:
_____________________
Clark Askins, Assistant City Attorney
ECONOMIC ALLIANCE HOUSTON PORT REGION
By: ____________________________ Attest:
Printed Name: Chad Burke _____________________
Title: CEO Print Name:
By: ____________________________
Printed Name: Dr. Brenda Hellyer
Title: President of the Board
EXHIBIT A:
EXISTING LEASE AGREEMENT
EXHIBIT B:
ECONOMIC DEVELOPMENT SERVICES AGREEMENT
THIS Economic DevelopmentServices Agreement (“Agreement”) is made
and entered into by and between the ECONOMIC ALLIANCE HOUSTON PORT
REGION, a Texas non-profit corporation; _______________________________
(hereinafter “THE ECONOMIC ALLIANCE”), and the City of La Porte, Texas; 604
W. Fairmont Parkway, La Porte, Texas 77571, (hereinafter “THE CITY”).
WHEREAS, THE ECONOMIC ALLIANCE is a non-profit corporation
organized to promote economic development with an emphasis on performance in
the southeast portion of Harris County, and;
WHEREAS, THE CITY promotes economic development in La Porte, Harris
County, Texas; and;
WHEREAS, THE CITY seeks assistance to fulfill its economic development
initiatives in La Porte, Texas; and
WHEREAS, THE ECONOMIC ALLIANCE is qualified and willing to
perform such assistance functions,
NOW THEREFORE, in consideration of the covenants and conditions stated
herein, and in consideration of the mutual benefits that will accrue to each of the
parties hereof, as well as to the citizens of La Porte, Texas,the Parties have agreed
and do hereby agree as follows:
ARTICLE I
Goals
Section 1.01: THE CITY represents its goals in its Economic Development Program
to include, but may not be limited to the following:
a.Creating economic diversification to provide for stable, consistent and
balanced growth;
b.Building La Porte’s business/commercial tax base;
c.Retaining existing jobs;
d.Creating an economic climate conducive to the development and growth
of business investment and commerce;
e.Enhancing the quality of life for all citizens residing or working within La
Porte, Texas;
f.Promoting La Porte, Texas as the location of choice for new, expanding
and relocating businesses;
g.Attracting new businesses and development to La Porte, Texas;
h.Encouraging the expansion and development to La Porte, Texas;
i.Retaining businesses currently located in La Porte, Texas;
j.Establishing new partnerships for the promotion of economic
development.
ARTICLE II
Qualifications of THE ECONOMIC ALLIANCE
Section 2.01: THE ECONOMIC ALLIANCE represents that:
a.THE ECONOMIC ALLIANCE is a non-profit entity that is authorized to
promote economic development in all or a portion of Harris County and is
currently in good standing with the State and Federal government;
b.THE ECONOMIC ALLIANCE is engaged in an on-going effort to attract
new businesses, to encourage the expansion of existing businesses, or to
retain existing businesses in Harris County, including La Porte, Texas;
c.THE ECONOMIC ALLIANCE hereby agrees to participate in joint
projects and coordinate its activities with THE CITY and in an effort to
reduce duplication of services and to enhance cooperation.
ARTICLE III
Scope of Services
Section 3.01: Services to be Provided: THE ECONOMIC ALLIANCE will provide
to THE CITY the services described in the following paragraphs:
a.Conduct one educational seminar specific to THE CITY for local
economic and community development professionals, as well as
government officials, local business and community leaders;
b.Establish an ongoing program to develop quality prospect leads, focusing
on the targeted industries of greatest importance to THE CITY;
c.Undertake or update workforce analyses to provide current data targeted to
prospective industries;
d.Interact with local, state, and federal officials, and local economic
development organizations and chambers of commerce on a regular basis;
e.Compile and disseminate economic and business related data to THE
CITY on at least an annual basis;
f.Interact with the Texas Department of Economic Development on behalf
of THE CITY and other economic development groups to acquire
economic business related data;
g.Promote small or disadvantaged business development;
h.Present THE CITY in THE ECONOMIC ALLIANCE’s marketing
materials, including its website;
i.Provide annual or more frequent reports to THE CITY on the performance
of the services described and outlined herein;
j.Prepare press releases and act as media liaison publicizing THE CITY’s
efforts.
k.THE CITY will be included as a participant in THE ECONOMIC
ALLIANCE’s economic development initiative Project Stars, which
focuses upon regional marketing and regional aesthetic improvements
within the San Jacinto Texas Historic District. This service provides to
the City that the Economic Alliance will communicate grant opportunities
regarding this project to city, at no obligation to the city.
l.Invitation to city officials and staff to all events organized and/or hosted
by THE ECONOMIC ALLIANCE;
m.THE ECONOMIC ALLIANCE will provide full membership on its board
of directors for a designee of THE CITY.
Section 3.02: Upon request, THE ECONOMIC ALLIANCE will make available to
THE CITY the following:
a.Access to information in its library and databases with the exception of
company economic development prospects who are not seeking to locate
in THE CITY;
b.Copies of THE ECONOMIC ALLIANCE studies reports and evaluations
relating to economic development issues with the exception of work
related to confidential prospects;
c.Copies of THE ECONOMIC ALLIANCE publications;
ARTICLE IV
Term of Contract
Section 4.01: The initial term of this agreement is for the twelve (12) month period
beginning July 1, 2012, and ending June 30, 2013. At the end of the initial term this
agreement shall renew automaticallyfor an additional twelve (12) month renewal
term, and each year thereafter for a total of five (5) renewal terms, and shall
conclude at the end of the fifth (5th) renewal term on June 30, 2018.
ARTICLE V
Terms of Payment
Section 5.01: THE CITY agrees to pay THE ECONOMIC ALLIANCE a total
amount of TWENTY THOUSAND AND NO/100ths Dollars ($20,000.00) for each
contract year this agreement is in effect, said $20,000.00 payments being for the
performance of services provided herein by THE ECONOMIC ALLIANCE during
each of the twelve month (12) terms established in Section 4.01 of this agreement.
Performance update reports shall be provided to THE CITY on at least an annual
basis. Furthermore, and without limiting Section 6.01, CITY retains the right to
terminate this Agreement at any point should funds not be appropriated for the
continued financing of this agreement in any fiscal year budget, or amendment to
same. THE ECONOMIC ALLIANCE agrees and recognizes that CITY must budget
for and approve of all purchases on a yearly basis and is unable to obligate revenues
beyond the current fiscal year.
Section 5.02: THE ECONOMIC ALLIANCE, as part of the payment for services
received, shall perform services outlined in this document.
Section 5.03: THE ECONOMIC ALLIANCE shall present annual billing statements
to THE CITY describing the services performed. THE CITY shall promptly process
such statements, and make payment within thirty (30) days of receipt.
ARTICLE VI
Termination
Section 6.01: THE CITY may terminate this Agreement at any time by giving 30
days’ written notice to THE ECONOMIC ALLIANCE. THE CITY’s right to
terminate this Agreement for convenience is cumulative of all rights and remedies,
which exist now or in the future.
Section 6.02: On receiving the notice, THE ECONOMIC ALLIANCE shall, unless
the notice directs otherwise, immediately discontinue all services under this
Agreement and cancel all existing orders and subcontracts that are chargeable to
their Agreement. Within 30 days of the termination date THE CITY shall pay to
THE ECONOMIC ALLIANCE, pro-rated on a monthly basis, the fees for services
rendered under this Agreement unless the fees exceed the allocated funds remaining
under this Agreement.
Section 6.03: TERMINATION OF THIS AGREEMENT AND RECEIPT OF
PAYMENT FOR SERVICES RENDERED ARE THE ECONOMIC ALLIANCE’S
ONLY REMEDIES FOR THE CITY’S TERMINATION FOR CONVENIENCE,
WHICH DOES NOT CONSTITUTE A DEFAULT OR BREACH OF THIS
AGREEMENT. THE ALLIANCE WAIVES ANY CLAIM (OTHER THAN ITS
CLAIM FOR PAYMENT AS SPECIFIED IN THIS SECTION), IT MAY HAVE
NOW OR IN THE FUTURE FOR FINANCIAL LOSSES OR OTHER DAMAGES
RESULTING FROM THE CITY’S TERMINATION FOR CONVENIENCE.
Section 6.04: Termination for Cause by THE ECONOMIC ALLIANCE: THE
ECONOMIC ALLIANCE may terminate its performance under this Agreement only
if THE CITY defaults and fails to cure the default after receiving written notice of
the alleged default. Default by THE CITY occurs if THE CITY fails to perform one
or more of its material dutiesunder this Agreement. If a default occurs and THE
ECONOMIC ALLIANCE wishes to terminate the Agreement, then THE
ALLIANCE must deliver a written notice to the CITY describing the default and the
proposed termination date. The date must be at least 30 days after the CITY receives
notice. THE ECONOMIC ALLIANCE, at its sole option, may extend the proposed
termination date to a later date. If THE CITY cures the default before the proposed
termination date, then the proposed termination is ineffective. If THE CITY does
not cure the default before the proposed termination date, then THE ECONOMIC
ALLIANCE may terminate its performance under this Agreement on the termination
date. To effect final termination, THE ECONOMIC ALLIANCE must notify THE
CITY in writing.
Section 6.05: Termination for Cause by THE CITY: If THE ECONOMIC
ALLIANCE defaults under this Agreement,THE CITY manager may either
terminate this Agreement or allow THE ECONOMIC ALLIANCE to cure the
default as provided below. THE CITY’s right to terminate this Agreement for THE
ECONOMIC ALLIANCE’s default is cumulative of all rights and remedies, which
exist now or in the future. Default by THE ECONOMIC ALLIANCE occurs if:
a.THE ECONOMIC ALLIANCE fails to perform any of its duties under this
Agreement;
b. THE ECONOMIC ALLIANCE becomes insolvent;
c.All or a substantial part of THE ECONOMIC ALLIANCE’s assets are
assigned for the benefit of its creditors; or
d. A receiver or trustee is appointed for THE ECONOMIC ALLIANCE.
Section 6.06: If a default occurs, the CITY may, but is not obligated to, deliver a
written notice to THE ECONOMIC ALLIANCE describing the default and the
termination date. The CITY, at its sole option may extend the termination date to a
later date. If the CITY allows THE ECONOMIC ALLIANCE to cure the default
and THE ECONOMIC ALLIANCE does so to the CITY’S satisfaction before the
termination date, then the termination is ineffective. If THE ECONOMIC
ALLIANCE does not cure the default before the termination date, then the CITY
may terminate this Agreement on the termination date, at no further obligation of the
Corporation.
Section 6.07: To effect final termination, THE CITY must notify THE ECONOMIC
ALLIANCE in writing. After receiving the notice, THE ECONOMIC ALLIANCE
shall, unless the notice directs otherwise, immediately discontinue all services under
this Agreement, and promptly cancel all orders or subcontracts chargeable to the
Agreement.
ARTICLE VII
Miscellaneous
Section 7.01 The relationship of THE ECONOMIC ALLIANCE to THE CITY shall
be that of an independent contractor. THE CITY shall have no authority to direct the
day-to-day activities of any of THE ECONOMIC ALLIANCE’s employees or
representatives, shall have no authority over THE ECONOMIC ALLIANCE’s
decisions, and shall have no rights to ownership of internal working papers or other
information or data of THE ECONOMIC ALLIANCE, except as otherwise
specifically authorized or required herein.
Section 7.02 This Agreement shall be binding upon and inure to the benefit of THE
CITY and THE ECONOMIC ALLIANCE and shall not bestow any rights on any
third parties.
Section 7.03. Failure of either party hereto to insist on the strict performance of any
of the provisions hereof, or failure of performance, shall not be considered a waiver
of the right to insist on or enforce, by an appropriate remedy, strict compliance with
any other obligation hereunder, or to exercise any right or remedy occurring as a
result of any future failure of performance.
Section 7.04. This Agreement shall be subject to and construed in accordance with
the laws of the State of Texas and of the United States of America and is
performable in Harris County, Texas.
Section 7.05. All notices required or allowed hereunder shall be given in writing and
shall be deemed delivered when actually received or on the third day following its
deposit into a United States Postal Service post office or receptacle with prepaid
postage affixed thereto, and sent by certified mail, return receipt requested,
addressed to the respective party at the address set forth below, or at such other
address the receiving party may have theretofore prescribed by written notice to the
sending party:
If to THE CITY: City of La Porte, Texas
Attention: City Manager
604 W. Fairmont Parkway
La Porte, Texas 77571
If to THE ECONOMIC ALLIANCE:
ECONOMIC ALLIANCE HOUSTON PORT REGION
Attention: Chad Burke, President/CEO
Insert address here
Section 7.06. This Agreement contains the entire agreement of the parties and any
changes and amendments hereto must be in writing and signed by both parties. This
Agreement is executed in two originals.
ECONOMIC ALLIANCE
HOUSTON PORT REGION
By: __________________________
Name: Chad Burke
Title: President/CEO
Date Signed: _____________
ATTEST/SEAL
By ______________________________
Name____________________________
Title_____________________________
CITY OF LA PORTE:
By ______________________________
Name: Steve Gillett
Title: Interim City Manager
Date Signed: _____________
ATTEST/SEAL
By ______________________________
Name____________________________
Title ____________________________
In February 2012, staff presented information to both the Economic Development Corporation Board
(EDC) and the City Council on an exception in Chapter 272 of the Local Government Code that allows
municipalities to sell real property by utilizing an independent foundation, such as the EDC. This
exception provides that a city can negotiate and sell property to a desired end user without public bid
procedures provided that the land is developed by contract and sold through the independent foundation.
Pursuant to Chapter 272.001 (b)(4), the City has, through its broker, negotiated the sale of 908W. Main
Street toK. Belle Interests, LLCin the amount of $275,000 for the purpose of developing the property
into officespace. The broker’s opinion of value, which in this case, is a more accurate representation of
the property’s value than the appraisal, is $275,000.The prospective buyer has entered into aletter of
intent, deposited earnest money with the broker, and will have to approve and sign the Restriction
Agreementthat is attached to the Purchase and Sale Agreement as Exhibit A.
The Purchase and Sale Agreement under consideration is the first procedural step that is required to
complete the transaction. Should Council approve the Purchase and Sale Agreement to convey 908W.
Main from the City to the EDC, the EDC must approve this documentprior to executing an identical
Purchase and Sale Agreement that conveys the land from the EDC to K. Belle Interests, LLC.
Staff recommends approval of the Purchase and Sale Agreement for 908W. Main Street from the City to
the EDC.
Consider approval or other action to authorize the Interim City Manager to negotiate and execute a
purchase and sale agreement, and any necessary agreements and instruments related thereto, for the
transfer of 908W. Main Street to the La Porte DevelopmentCorporation, acting as an independent
foundation, for the resale of such property to K. Belle Interests for the development of office space.
This (“Agreement”) to buy and sell real property is
entered between City and Corporation as identified below and is effective on the date (“Effective
Date”) of the last of the signatures by City and Corporation as parties to this Agreement,
acknowledgement by Title Company of receipt of this Agreement.
City:
City of La Porte, a Texas home rule municipality
Attn:Steve Gillett,Interim City Manager
604 W. Fairmont Parkway
La Porte, Texas 77571
Phone: (281)471-5020
Fax: (281)___________________
E-mail:
City’s Attorney:
Knox W. Askins
Askins & Askins, P.C.
P.O. Box 1218
La Porte, Texas 77572-1218
Phone: (281)471-1886
Fax: (281)____-___________
E-mail:
Corporation:
La Porte Development Corporation, a Texas non-profit corporation
Attn: Stacey Osborne
604 W Fairmont Parkway
La Porte, Texas 77571
Phone: (281) 470-5017
Fax: (281) ____- ___________
E-mail: osbornes@laportetx.gov
Developer: ___________________________________
___________________________________
___________________________________
Phone: (281)____________________
Fax: (281)____________________
E-mail:
Title Company:American Title Company
Attn: _________________________
Commercial Division
5003 College Park
Deer Park, Texas 77536
Phone: (281) 479-1913
Fax: (281).479-8609
E-Mail: dlansing@republictitle.com
Property: Tract 1: Lots 9, 20 and 21, in Block 52, of TOWN OF LA PORTE, an
addition in Harris County, Texas, according to the map or plat thereof recorded in
Volume 57, Page 320 of the Deed Records of Harris County, Texas, SAVE LESS
AND EXCEPT that portion of the above said lots (if any) and the interest therein,
deeded to or condemned by governmental entities for the widening of West Main
Street or for right of way purposes, and further described in instrument recorded
in Volume 4569, Page 499 of the Deed Records of Harris County, Texas.
Tract 2: Being a 0.241 acre tract or parcel of land situated in the Johnson Hunter
Survey, Abstract No. 35, Harris County, Texas, and being all of Lots 7, 8 and 9 in
Block 52 of the Resubdivision of Blocks 37 to 60 of the Town of La Porte, a
subdivision according to the map or plat thereof recorded in Volume 67, Page 196
of the Deed Records of Harris County, Texas.
Developer Sales
Contract:That certain Purchase Agreementby and between Corporation and
Developer relating to the sale by Corporation of the Property to Developer
substantially in the formattached hereto as and
incorporated herein by reference.
Restriction
Agreement:That certain Restriction Agreement by and between Cityand Developer
set forth asExhibit “A” in the Developer Sales Contract.
Inspection Period: The period commencing on the Effective Date and ending on the
termination of the Inspection Period as defined in the Developer Sales
Contract.
Closing Date:Concurrent with Corporation’s closing on the sale of the Property pursuant
to the Developer Sales Contract.
Purchase Price: $________________________ cash
, Corporation desires to purchase the Property from City for resale to
Developer pursuant to the Developer Sales Contract for development in accordance with the
Restriction Agreement; and
Tex. Loc. Gov’t Code § 272.001 allows City to convey land it wants
developed by contracting with an independent foundation without auction or soliciting
competitive bids; and
Corporation is a Texas non-profit corporation and qualifies as an
independent foundation under Tex. Loc. Gov’t Code § 272.001; and
the Purchase Price isthe fair market value of the Property; and
in consideration of the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. City agrees to sell and convey the Property to Corporation
for the Purchase Price.
2. City and Corporation understand and
acknowledge that Corporation will contract or has contracted with Developer pursuant to the
Developer Sales Contract to sell and convey the Property to Developer. In order to save City,
Corporation, and Developer the cost of multiple surveys and title policies and to expedite both
transactions, City and Corporation agree:
(a)City, as owner of the Property, agrees to reasonably cooperate with
Corporation’s obligations as Seller set forth in Section 2 of the Developer Sales Contract
with respect to curing title objections and, pursuant thereto, Corporation shall
immediately forward to City any and all notices received by Corporation pursuant to
Section 2(c) of the Developer Sales Contract;
(b)The transaction described in this Agreement and the transaction described
in the Developer Sales Contract shall be treated by the Title Company as a pass-through
transaction such that Title Company shall issue only one owner’s title policy to
Developer as the ultimate purchaser and owner of the Property pursuant to Section 5 of
the Developer Sales Contract; and
(c)City and Corporation will accept, review, and rely upon the survey,
environmental studies, and other inspection reports of the Property obtained by
Developer pursuant to the DeveloperSales Contract as if they were obtained by
Corporation pursuant to this Agreement.
3. During the Inspection Period, Corporation and/or Developer
and its agents or employees shall have the right to enter upon the Property and conduct such
inspections, tests and studies as they may deem reasonable and necessary in accordance with and
subject to Section 3(a) of the Developer Sales Contract, including, but not limited to,
Developer’s agreement to indemnify, defend, and hold City harmless as set forth in said Section
3(b) If for any reason Developer determines not to purchase the Property from Corporation and
terminates the Developer Sales Contract in accordance with Section 3(a) of the Developer Sales
Contract, Corporation shall notify City and Title Company of such termination, in which case
this Agreement shall terminate. In such event, neither party shall have any further claim against
the other party under this Agreement. If Corporation does not timely terminate this Agreement
under this Section 3, it shall have no further right to do so under this Section 3; and Corporation
shall have waived its right to terminate this Agreement within the Inspection Period.
4.
(a)Except as extended as provided herein, the closing of the sale of the
Property shall occur on the Closing Date at the Title Company.
(b)At the Closing, City shall deliver to the Title Company:
(i)a special warranty deed, in form and substance reasonably
acceptable to City, Corporation, and Developer conveyinggood and indefeasible
title to the Property to Corporation, free and clear of any and all encumbrances
subject only to the Permitted Exceptions;
(ii)Such documents as may be reasonably required by Title Company
in order for Title Company to issue a Title Policy in favor of Developer as the
insured owner pursuant to Section 5 of the Developer Sales Contract;
(iii)Evidence of City’s authority to close this transaction as may be
required by the Title Company; and
(iv)Settlementstatement, and such other documents as Title Company
may reasonably require.
(b) At the closing, Corporation shall deliver to City through Title Company:
(i)the Purchase Price in cash or immediately available funds,
inclusive of the Earnest Money previously paid by Developer and placed in
Escrow pursuant to the Developer Sales Contract but less Corporation’s Closing
cost deducted from the Purchase Price in accordance with the Developer Sales
Contract;
(ii)the Restriction Agreement signed by Corporation and Developer;
and
(iii)such other documents that the Title Company may reasonably
require of Corporation.
With respect to the issuance of the title policy, Cityagrees to execute such documents as
required by the Title Company to allow the cost of the Owner’s Title Policy and any
related endorsements that are required to be issued pursuant to the DeveloperSales
Contract regarding the Property are passed through to the sale of the Property by
Corporation to Developer, it being the intent of City and Corporation that only one title
policy by issued in favor of Developerfollowing the concurrent closing of this
transaction and the transaction between Corporation and Developer.
5. Corporation understands and acknowledges that the Property is presently
exempt from the assessment of ad valorem taxes, which status may change upon conveyance of
the Property to Corporation or Developer. City shall not be responsible for payment of property
taxes assessed against the Property for periods after the date of Closing, if any become due and
payable.
6. City hereby agrees to pay and be responsible for all closing costs
related to the sale of the Property to Corporation pursuant to this Agreement and Corporation’s
closing costs as Seller pursuant to Section 7 of the Developer Sales Contract.
7. Those matters constituting Permitted Exceptions
pursuant to the Developer Sales Contract shall constitute Permitted Exceptions pursuant to this
Agreement. In addition, the Restriction Agreement shall be deemed to be a Permitted Exception.
8.
(a)Corporation hereby acknowledges and agrees that the sale of the Property
hereunder is and will be made on an “as is, where is and with all faults” basis. The
occurrence of Closing shall constitute an acknowledgment by Corporation that the
Property was accepted without representation or warranty, express or implied (except as
otherwise specifically set forth herein and except for the special warranties of title set
forth in the special warranty deed).
(b)Except as otherwise specifically set forth in this Agreement and except for
the special warranties of title set forth in the special warranty deed, City hereby
specifically negates and disclaims any representations, warranties or guaranties of any
kind or character, whether express or implied, oral or written, past, present, future or
otherwise, of, as to, concerning or with respect to the Property, including without
limitation (i) the nature and condition of the Property and the suitability thereof for any
and all activities and uses which Corporation or Developer may elect to conduct thereon,
(ii) the nature and extent of any right-of-way, lease, possession, lien, encumbrance,
license, reservation, condition orany other matter relating in any way to the Property,
(iii) the compliance of the Property or its operation with any laws, ordinances or
regulations of any government or other authority or body, (iv) the existence of any toxic
or hazardous substance or waste in, on, under the surface of or about the Property, (v)
geological conditions, including, without limitation, subsidence, subsurface conditions,
water table, underground water reservoirs, limitations regarding the withdrawal of water
and faulting, (vi)whether or not and to the extent to which the Property or any portion
thereof is affected by any stream (surface or underground), body of water, flood prone
area, floodplain, floodway or special flood hazard, (vii) drainage, (viii) zoning or land use
restrictions rules and regulations to which the Property or any portion thereof may be
subject, (ix) the availability of any utilities to the Property or any portion thereof
including, without limitation, water, sewage, gas and electric and including the utility
availability capacities allocated to the Property by the relevant governmental or
regulatory authority, (x) usages of adjoining property, (xi) access to the Property or any
portion thereof, (xii) the value, compliance with the plans and specifications, size,
location, age, use, design, quality, description, durability, structural integrity, operation,
leasing, title to, or physical or financial condition of the Property or any portion thereof,
or any income, expenses, charges, liens, encumbrances, rightsor claims on or affecting or
pertaining to the Property or any part thereof, (xiii) the potential for further development
of the Property, or (xiv) the merchantability of the Property or fitness of the Property for
any particular purpose (Corporation affirming that Corporation has not relied on City’s
skill or judgment to select or furnish the Property for any particular purpose, and that City
makes no warranty that the Property is fit for any particular purpose).
(c)Corporation agrees that prior to the expiration of the Inspection Period it
will have the opportunity to examine and investigate the Property and that, in purchasing
the Property, Corporation will rely solely upon its independent examination, study,
inspection and knowledge of the Property, and Corporation is relying solely upon its own
examination, study, inspection, and, except for representations and warranties specifically
set forth herein and, except for the special warranties of title set forth in the special
warranty deed, knowledge of the Property and Corporation’s determination of the value
of the Property and uses to which the Property may be put, and not on any information
provided or to be provided by City.
(d)The provisions of this Section 8 shall survive the termination of this
Agreement and the Closing.
9. Corporation understands and
acknowledges that City is selling the Property to Corporation in Corporation’s capacity as an
independent foundation pursuant to Tex. Loc. Gov’t Code §272.001 without conducting an
auction or soliciting competitive bids, but subject to the requirement that the Property be
developed in accordance with the Restriction Agreement. Corporation agrees that the resale of
the Property to Developer shall be subject to the Restriction Agreement, which Developer must
sign at Closing and which shall be recorded along with the Special Warranty Deed.
10. Closing on this Agreement is expressly conditioned on
and subject to the following:
(a)The closing of the sale of the Property by Corporation to Developer
concurrently with the Closing of this Agreement.
(b)Developer signing, acknowledging and delivering to Title Company for
recording at Closing the Restriction Agreement.
11. If a party hereto defaults, the non-defaulting party’s sole remedy shall
be to terminate this Agreement by providing written notice to the defaulting party.
12. As additional consideration
for this Agreement, Corporation hereby assigns any and all rights that Corporation has as Seller
pursuant to the Developer Sales Contract to receipt of any Earnest Money and the Option Fee as
defined in the Developer Sales Contract in the event the Developer Sales Contract is terminated
under such circumstances that Corporation becomes entitled to receipt of the Earnest Money
from the Escrow Agent. City understands, acknowledges, and agrees that City shall have no
vested rights in and to the Earnest Money unless and until such rights are vested in Corporation
pursuant to the Developer Sales Contract.
13. Corporation agrees that City, for itself and its
successors and assigns, as their interests may appear, reserves unto City all oil, gas and other
minerals owned by City located in and under and that may be produced from the Property to the
extent not reserved by prior grantors; provided, however, City, for itself and its successors and
assigns hereby waives all surface rights and other rightsof ingress and egress in and to the
Property, and agrees that in conducting operations with respect to the exploration for and
production, processing, transporting and marketing of oil, gas and other minerals from the
Property, that no portion of the surface of the Property will be used, occupied or damaged and
that fixtures, equipment, buildings or structures used in connection with the exploitation of the
reserved mineral, oil and gas rights, shall not be placed on the surface of the Property. Nothing
herein, however, restricts or prohibits the pooling or unitization of the portion of the mineral
estate owned by City with land other than the Property; or the exploration or production of the
oil, gas, and other minerals by means of wells that are drilled or mines that open on land other
than the Property but enter or bottom under the Property, provided that these operations in no
manner interfere with the surface or subsurface support of any improvements constructed or to
be constructed on the Property. The foregoing reservation of minerals and City’s waiver of
surface rights set forth above shall be included in the special warranty deed.
14. In addition to the reservations of oil, gas, and mineral
interests set forth in Section 13, above, City shall have the right to reserve at Closing for itself
and its successors and assigns and the public such easements and rights-of-way shown on the
final plat of the Propertyand such easements as may have been granted to City prior to City’s
acquisition of title to the Property, which shall constitute Permitted Exceptions at Closing to the
extent they affect the Property.
15. Notices must be in writing to and given at the addresses stated above.
Notice given by delivery serviceor fax shall be effective upon receipt at the address of the
addressee; notice given by mail shall be effective upon receipt. In addition, copies of notices
shall be sent to (a) the attorney for the party to whom the notice is being sent and (b) to
Developer and Developer’s attorneys as shown above.
16.
Entire Agreement
(a).This Agreement contains the entire agreement
between City and Corporation, and there are no other terms, conditions, promises,
undertakings, statements or representations, either written or oral or express or implied,
concerning the sale contemplated by this Agreement.
Modifications and Waiver
(b)This Agreement may be amended only by an
instrument in writing signed by both City and Corporation. This Agreement may be
terminated only in accordance with the terms of this Agreement or by an instrument in
writing signed by both City and Corporation. No waiver of any of the provisions of this
Agreement shall constitute a waiver of any other provision, nor shall any waiver be a
continuing waiver. Except as expressly provided in this Agreement, no waiver shall be
binding unless executed in writing by the party making the waiver.
Assignment
(c). Neither party may assign its rights under this Agreement
without the prior written consent of the other party.Corporation shall be authorized to
consent to an assignment of the Developer Sales Contract without consent of City, but
only if the assignee of the Developer Sales Contract assumes all obligations of Developer
under the Developer Sales Contract.
Time is of the Essence
(d). Time is of the essence with respect to the
performance by the parties of their respective obligations hereunder.
Effective Date.
(e)The Effective Date of this Agreement shall be the date on
which the authorized representatives of the parties have signed this Agreementand the
Option Fee has been paid.
Non-Business Day.
(f) If the final date of any period provided herein for the
performance of an obligation or for the taking of any action falls on a Saturday, Sunday,
or holiday, then the end of such period shall be extended to the next business day.
Headings
(g). Section headings are for convenience of reference only and do
not modify or restrict any provisions hereof and shall not be used to construe any
provisions.
Brokers
(h). City and Corporation represent that no other broker is involved
in this Agreement and, to the extent allowed by law, each party indemnifies the other
against brokerage or commission claims arising out of the indemnifying party's actions.
Counterparts.
(i)This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original for all purposes and constitute
one and the same instrument; but in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
Legal Construction
(j).In the event any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect
other provisions,and the Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained in it.
Law Governing
(k). This Agreement shall be construed under and in
accordance with the laws of the State of Texas; and venue for any action arising from this
Agreement shall be in the State District Court of Dallas County, Texas. The parties agree
to submit to the personal and subject matter jurisdiction of said court.
Survival of Covenants
(l). Any of the representations, warranties, covenants,
and obligations of the parties, as well as any rights and benefits of the parties, pertaining
to a period of time following the Closing shall survive.
(signature page to follow)
this the _______ day of ___________, 2012.
By: ______________________________________
Steve Gillett,Interim City Manager
this the ________ day of ___________, 2012.
By: ______________________________________
Richard Warren, President
RECEIPT OF CONTRACT
Title Company acknowledges receipt of a copy of this Agreement executed by both
Corporation and City on the ___ day of _______________________, 2012.
By:______________________________________
Name:___________________________________
Title:____________________________________
This (“Agreement”) to buy and sell real property is
entered between Seller and Buyer as identified below and is effective on the date set forth in
Section 17(e) (“Effective Date”).
La Porte Development Corporation, a Texas non-profit corporation
Attn: Stacey Osborne
604 W Fairmont Parkway
La Porte, Texas 77571
Phone: (281) 470-5017
Fax: (281) ____- ___________
E-mail: osbornes@laportetx.gov
Knox W. Askins
Askins & Askins, P.C.
P.O. Box 1218
La Porte, Texas 77572-1218
Phone: (281) 471-1886
Fax: (281) ___-_________
E-mail:
___________________________________
Attn:________________________________
____________________________________
La Porte, Texas 77571
Phone: (281) ____-__________
Fax: (281) ____-__________
E-mail:
Tract 1: Lots 9, 20 and 21, in Block 52, of TOWN OF LA PORTE, an
addition in Harris County, Texas, according to the map or plat thereof
recorded in Volume 57, Page 320 of the Deed Records of Harris County,
Texas, SAVE LESS AND EXCEPT that portion of the above said lots (if
any) and the interest therein, deeded to or condemned by governmental
entities for the widening of West Main Street or for right of way purposes,
and further described in instrument recorded in Volume 4569, Page 499 of
the Deed Records of Harris County, Texas.
Tract 2: Being a 0.241 acre tract or parcel of land situated in the Johnson
Hunter Survey, Abstract No. 35, Harris County, Texas, and being all of
Lots 7, 8 and 9 inBlock 52 of the Resubdivision of Blocks 37 to 60 of the
Town of La Porte, a subdivision according to the map or plat thereof
recorded in Volume 67, Page 196 of the Deed Records of Harris County,
Texas.
City of La Porte, a Texas home rule municipality
Attn: City Manager
604 W Fairmont Parkway
La Porte, Texas 77571
Phone: (281) 471-5020
Fax: (281) ____-___________
E-mail: gilletts@laportetx.gov
Knox W. Askins
Askins & Askins, P.C.
P.O. Box 1218
La Porte, Texas 77572-1218
Phone: (281) 471-1886
Fax: (281) ____-___________
E-mail:
American Title Company
Attn: Staci Gay
Commercial Division
5003 College Park
Deer Park, Texas 77536
Phone: (281) 479-1913
Fax: (281).479-8609
E-Mail:
The period commencing onthe Effective Date and ending fifteen (15) days after
the Effective Date
$10,000.00
$100.00 (Paid to Seller at time of execution of this Agreement, non-refundable,
and to be credited to Purchase Price at Closing)
________ (____) days after the end of the Inspection Period
$275,000cash.
That certain Purchase and Sale Agreementdated and effective May 14, 2012, by
and between City and Seller relating to the sale by City of the Property to Seller.
That certain Restriction Agreement by and between City and Purchaser set forth in
Exhibit “A,” attached hereto and incorporated herein by reference.
in consideration of the sum of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1.Seller agrees to sell, and Purchaser agrees to purchase the Property as
provided in this Agreement for the Purchase Price.
2.
(a)Not later than ten (10) days after the Effective Date, Seller shall, at Seller’s expense,
deliver to Purchaser:
(i)a current commitment for an Owner’s Policy of Title Insurance for the Property
from the Title Company, setting forth the state of title to the Property together with any
easements or restrictions (existing or created pursuant hereto) benefiting or burdening the
Property, together with all exceptions or conditions to such title;
(ii)legible copies of all documents referenced in the Title Commitment;
(iii)any environmental or geotechnical studies or reports that Seller may have in its
possession with respect to the Property; and
(iv)tax certificate(s) regarding the payment of ad valorem taxes for current and prior
years.
(b) Purchaser shall, not later than twenty (20) days after the Effective Date, and at
Purchaser’s expense, obtain a survey of the Property and deliver same to Seller. “Survey” means an on-
the-ground, staked plat of survey and metes-and-bounds description of the Property, prepared by a Texas
Registered Property Land Surveyor or another surveyor satisfactoryto Title Company, dated after the
Effective Date, and certified to comply with the current standards and specifications as published by the
Texas Society of Professional Surveyors required for obtaining deletion of the survey exception in the
Title Policy. In lieu of a new survey, Purchaser may provide a previously prepared survey accompanied
by an affidavit (e.g. Form T-47 modified for commercial transactions) reasonably acceptable to Title
Company and Seller.
(c)Purchaser shall, not later than five (5) days after Purchaser’s receipt of the last of the
Survey and Title Commitment, notify Seller and Title Company of any objections to the Survey or Title
Commitment. If there are objections by Purchaser, Seller shall in good faith attempt to satisfy them prior
to Closing, but Seller shall not be required to incur any cost to do so. If Seller delivers written notice to
Purchaser not later than the ten (10) calendar day after Seller’s receipt of Purchaser’s objections that
Seller is unable to satisfy such objections, Purchaser may either waive such objections and accept title as
Seller is able to convey or terminate this Agreement by written notice to Seller and the Title Company
prior to the expiration of the Inspection Period.
3.
(a)During the Inspection Period, Purchaser and its agents or employees shall have the right
to enter upon the Property during regular business hours upon reasonable notice and conduct such
inspections, tests and studies as they may deem necessary. If for anyreason Purchaser determines not to
purchase the Property, Purchaser may terminate this Agreement by notifying Seller and Title Company in
writing prior to the expiration of the Inspection Period and neither party shall have any further claim
against the other under this Agreement. If Purchaser does not timely terminate this Agreement under this
Section 3, Purchaser shall have no further right to do so under this Section 3; and Purchaser shall have
waived its right to terminate this Agreement within the Inspection Period.
(b) Purchaser may enter the Property to conduct its inspection, but shall be solely responsible
for any damages caused thereby
4.
The closing of the sale of the Property shall occur on the Closing Date at the Title Company, or at
such other time as may be agreed in writing by the parties.
5.
(a)At the closing of the Property, Seller shall deliver to the Title Company:
(i)a special warranty deed, in form and substance reasonably acceptable to Seller
and Purchaser, conveying good and indefeasible title to Purchaser, free and clear of any and all
encumbrances except the Permitted Exceptions, excluding the mineral rights, such mineral rights
being reserved by City pursuant to the City Sales Contract or by prior grantors;
(ii)such documents as may be reasonably required by Title Company in order to
cause Title Company to issue a Texas owner’s policy of title insurance (or equivalent) in the
amount of the Purchase Price, insuring such title to Purchaser;
(iii)possession of the Property, free of parties in possession.
(b) At the Closing, Purchaser shall deliver to Seller through the Title Company:
(i)the Purchase Price; and
(ii)the Restriction Agreement duly executed by Purchaser.
With respect to the issuance of the title policy, Purchaser agrees to execute such documents as required by
the Title Company to allow the cost of the Owner’s Title Policy and any related endorsements that are
required to be issued pursuant to the City Sales Contract regarding the Property are passed through to the
sale of the Property by Seller to Purchaser, it being the intent of Purchaser and Seller that only one title
policy by issued in favor of Purchaser following the concurrent closing of this transaction and the
transaction between Seller and City.
6.
Purchaser understands and acknowledges that the Property is presently exempt from the
assessment of ad valorem taxes, which status will change upon conveyance of the Property to Purchaser.
Seller shall not be responsible for payment of property taxes assessed against the Property for periods
after the date of Closing, if any become due and payable.
7.
(a)Seller hereby agrees to pay and be responsible for the following closing cost with respect
to the closing of the Property:
(i) the cost of all tax certificates relating to all taxes and other assessments incurred
or arising in relation to the Property;
(ii) one-half (½) of the Title Company’s escrow fees;
(iii)the basic premium for the Owner’s Policy of Title Insurance;
(iv) all costs and expenses incurred by or on behalf of the Seller, including Seller’s
attorney’s fees; and
(v) such other incidental costs and fees customarily paid by sellers of real property in
Harris County, Texas, for transactions of a similar nature to the transaction contemplated herein.
(b) Purchaser hereby agrees to pay and be responsible for the following closing cost with
respect to the closing on the purchase of the Property:
(i) all fees and premiums for any endorsements to the Basic Owner’s Title Policy;
(ii) all fees and costs for the Survey;
(iii) one-half (½) of the Title Company’s escrow fees;
(iv)feesfor recording the Restriction Agreement and the Special Warranty Deed with
the County Clerk of Harris County;
(v) all costs and expenses incurred by or on behalf of the Purchaser, including
Purchaser’s attorneys’ fees;
(vi)all premiums and fees for optional riders and amendments to the Basic Owner’s
Title Policy and all costs related to issuance of any Mortgagee’s Title Policy; and
(vii) such other incidental costs and fees customarily paid by purchasers of property in
Harris County, Texas, for transactions of a similar nature to the transaction contemplated herein.
8.
Closing on the sale of the Property shall be conditioned upon:
(i)Purchaser having executed the Restriction Agreement;
(ii)Seller closing on the purchase of the Property from City pursuant to the City
Sales Contract; and
(iii)The zoning of the Property being amended, if necessary, and a Site Plan for the
Property, if necessary, such that Purchaser may develop and use the Property for the Required
Use as defined in the Restriction Agreement. If the Property is not zoned for such use or a Site
Plan is not approved as of the Effective Date, Seller agrees to obtain the consent of City to allow
Purchaser the right to file an application with City to seek an amendment to the zoning
regulations affecting the Property and/or adopt a Site Plan to allow the Property to be used for the
Required Use. Purchaser understands and acknowledges that City has not waived its legislative
authority or is otherwise contractually obligated pursuant to the City Sales Contract to adopt any
amendments to City’s Comprehensive Zoning Ordinance, as amended, or approve any particular
Site Plan, Seller agrees to reasonably cooperate with Purchaser in the application for any zoning
amendment or Site Plan approval requested by Purchaser and shall execute all necessary and
appropriate instruments as owner of the Property. The application for rezoning the Property
and/or approving a Site Plan shall be made in the name of either Seller or Purchaser as required
under governing law; and
(iv)The Property being replatted, if necessary, so that it constitutes one or more
defined lots as determined in accordance with Seller’s subdivision ordinance. Seller agrees to
reasonably cooperate and participate with Purchaser in the prosecution of any plat application for
the replat of the Property so that the Property is identified as one or more separate and distinct
lots as determined by Purchaser.
If the conditions set forth in (ii), (iii), and/or (iv) have not been satisfied on or before ten (10) days prior
to Closing, the Closing Date shall be extended for a period of thirty (30) days. If the conditions set forth
in (iii), and/or (iv) have still not been approved by the end of said thirty.(30) day period, Purchaser may
either (1) extend the Closing Date for an additional thirty (30) day period, (2) waive the condition and
proceed to Closing, or (3) terminate this Agreement as Purchaser’s sole remedy. If the condition set forth
in (ii) has still not been approved by the end of said thirty.(30) day period, Purchase shall only have the
right to (1) extend the Closing Date for and additional (30) day period or (2) terminate this Agreement
and receive a refund of the Earnest Money.
9.
(a)Purchaser acknowledges and agrees that the Property will be conveyed by Seller at
closing subject to the Restriction Agreement and that the Special Warranty Deed shall contain reference
to same. The (i) zoning, (ii) lien for current taxes, (iii) environmental condition, (iv) the Restriction
Agreement, and (v) matters appearing on Schedule B of the Title Commitment that were not cured and to
which Purchaser failed to object or otherwise waived objection shall be deemed to be Permitted
Exceptions.
(b) Purchaser understands, acknowledges, and agrees that all rights-of-ways and easements
dedicated to City on behalf of the public and which appear on the final plat of the Property may be
reserved prior to Closing by City for itself and its successors and assigns and the public, which
reservations shall constitute Permitted Exceptions at Closing to the extent they affect the Property.
10.
Seller represents and covenants that: (a) it has authority to enter into this Agreement; and (b) no
other person has any interests in or claims against the Property (other than as reflected by the Title
Commitment), and it will not hereafter encumber the Property. Purchaser represents that it has authority
to enter into this Agreement. The only representations made by any party concerning the Property and
this Agreement are as set out in this Section 10.
11.
(a)Purchaser represents that as of the Closing Date that it:
(i)will have fully inspected the Property; and
(ii)will have made all investigations as it deems necessary or appropriate and will be
relying solely upon its inspection and investigation of the Property for all purposes whatsoever,
including, but not limited to, the determination of the condition of the structures, improvements,
soils, subsurface, drainage, surface and groundwater quality, and all other physical
characteristics; availability and adequacy of utilities; compliance with governmental laws and
regulations; access; encroachments; acreage and other survey matters and the character and
suitability of the Property.
(b) Purchaser hereby acknowledges and agrees that the sale of the Property hereunder is and
will be made on an “as is, where is and with all faults” basis. The occurrence of Closing shall constitute
an acknowledgment by Purchaser that the Property was accepted without representation or warranty,
express or implied (except as otherwise specifically set forth herein and except for the special warranties
of title set forth in the special warranty deed).
(c)Except as otherwise specifically set forth in this Agreement and except for the special
warranties of title set forth in the special warranty deed, Seller hereby specifically negates and disclaims
any representations, warranties or guaranties of any kind or character, whether express or implied, oral or
written, past, present, future or otherwise, of, as to, concerning or with respect to the Property, including
without limitation (i) the nature and condition of the Property and the suitability thereof for any and all
activities and uses which Purchaser may elect to conduct thereon, (ii) the nature and extent of any right-
of-way, lease, possession, lien, encumbrance, license, reservation, condition or any other matter relating
in any way to the Property, (iii) the compliance of the Property or its operation with any laws, ordinances
or regulations of any government or other authority or body, (iv) the existence of any toxic or hazardous
substance or waste in, on, under the surface of or about the Property, (v) geological conditions, including,
without limitation, subsidence, subsurface conditions, water table, underground water reservoirs,
limitations regarding the withdrawal of water and faulting, (vi) whether or not and to the extent to which
the Property or any portion thereof is affected by any stream (surface or underground), body of water,
flood prone area, floodplain, floodway or special flood hazard, (vii) drainage, (viii) zoning or land use
restrictions rules andregulations to which the Property or any portion thereof may be subject, (ix) the
availability of any utilities to the Property or any portion thereof including, without limitation, water,
sewage, gas and electric and including the utility availability capacities allocated to the Property by the
relevant governmental or regulatory authority, (x) usages of adjoining property, (xi) access to the Property
or any portion thereof, (xii) the value, compliance with the plans and specifications, size, location, age,
use, design, quality, description, durability, structural integrity, operation, leasing, title to, or physical or
financial condition of the Property or any portion thereof, or any income, expenses, charges, liens,
encumbrances, rights or claims on or affecting or pertaining to the Property or any part thereof, (xiii) the
potential for further development of the Property, or (xiv) the merchantability of the Property or fitness of
the Property for any particular purpose (Purchaser affirming that Purchaserhas not relied on Seller’s skill
or judgment to select or furnish the Property for any particular purpose, and that Seller makes no warranty
that the Property is fit for any particular purpose).
The warranties, representations, agreements, indemnification and release set forth in this
Paragraph 11 shall survive closing, and shall be incorporated into the deed.
12.
Purchaser understands, acknowledges, and agrees that City, for itself and its successorsand
assigns, as their interests may appear, has reserved from its conveyance of the Property to Seller pursuant
to the City Purchase Contract all oil, gas and other minerals owned by City located in and under the
Property and that may be produced from the Property to the extent not reserved by prior grantors; and that
City, for itself and its successors and assigns has agreed (i) to waive all surface rights and other rights of
ingress and egress in and to the Property, and (ii) that in conducting operations with respect to the
exploration for and production, processing, transporting and marketing of oil, gas and other minerals from
the Property, that no portion of the surface of the Property will be used, occupied or damaged and that
fixtures, equipment, buildings or structures used in connection with the exploitation of the reserved
mineral, oil and gas rights, shall not be placed on the surface of the Property. Purchaser further
understands, acknowledges, and agrees that City shall not be restricted or prohibited from the pooling or
unitization of the portion of the mineral estate owned by City with land other than the Property; or the
exploration or production of the oil, gas, and other minerals by means of wells that are drilled or mines
that open on land other than the Property but enter or bottom under the Property, provided that such
operations will in no manner interfere with the surface or subsurface support of any improvements
constructed or to be constructed on the Property. The foregoing reservation of minerals and City’s waiver
of surface rights set forth above shall survive closing and be included in substance in the special warranty
deed.
13.
If Purchaser defaults, Seller’s sole remedy shall be to terminate this Agreement and receive
payment of the Earnest Money as liquidated damages. If Seller defaults, Purchaser’s sole remedy shall be
to terminate this Agreement and receive a refund of the Earnest Money. No termination shall occur
pursuant to a default until the non-defaulting party has provided written notice of default not less than ten
(10) days prior to the proposed date of termination and the defaulting party has failed to cure the default;
provided, however, if all parties have fully performed and all conditions to Closinghave been satisfied
other than the signing of documents close on the sale of the Property and one party fails to perform such
necessary acts to deliver funds and execute documents required for Closing, on the date of Closing, then
this Agreement shall terminate one (1) business day after demand is made to the non-performing party
and the party continues to fail to close on the transaction.
14.
Notices must be in writing and may be hand delivered and/or mailed by certified mail with return
receipt requested to the addresses stated above. Notice given by delivery service shall be effective upon
receipt at the address of the addressee; notice given by mail shall be effective upon earlier of actual
receipt or three (3) days after placing the notice in a receptacle of the United States Postal Service,
postage prepaid and properly addressed. In addition, copies of notices shall be provided to the party’s
attorney at the addresses indicated above.
15.
This Agreement shall be effective onthe Effective Date and, except for the provisions of this
Agreement that survive termination, shall terminate:
(a)on the closing date of the sale of the Property to Purchaser;
(b) on the date mutually agreed by the parties; or
(c)the date the Agreement is terminated pursuant to Section 13, above.
16.
Purchaser acknowledges having been advised that pursuant to the City Purchase Contract, City
has contracted with Seller as an independent foundation to sell the Property without requiring an auction
or solicitation of competitive bids subject to City’s requirement that the Property be developed by
Purchaser in accordance with the Restriction Agreement.
17. This Agreement is subject to the following additional provisions and
conditions:
(a)Entireties. This Agreement contains the entire agreement of the parties pertaining to the
Property.
(b) Modifications. This Agreement may only be modified by a written document signed by
both parties.
(c)Assignment. Purchaser may not assign its rights under this Agreement to any entity
without the express written consent of Seller.
(d) Time is of the Essence. Time is of the essence with respect to the performance by the
parties of their respective obligations hereunder.
(e)Effective Date. The Effective Date of this Agreement shall be the last date on which the
authorized representatives of all parties have signed this Agreement and the payment of the Option Fee
has been paid.
(f)Non-Business Day. If the final date of any period provided herein for the performance of
an obligation or for the taking of any action falls on a Saturday, Sunday, federal holiday, or a day on
which Seller’s main offices are not open for regular business, then the end of such period shall be
extended to the next day that is not one of the foregoing described days.
(g)Zoning. Seller assumes no obligation to change the current zoning on the Property.
(h) Brokers.The parties represent and warrant they have not worked with any broker relative
to this transaction and that no brokerage commission is due and payable upon the Closing. To the extent
allowed by law, each party shall indemnify each other from any claim for brokers’ commissions relative
to the sale of the property and alleged to be due. Purchaser does represent and disclose that certain of its
officers and employees are licensed real estate agents or brokers in the State of Texas.
(i)Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original for all purposes and constitute one and the same instrument; but in
making proof of this Agreement, it shall not be necessary to produce or account for more than one such
counterpart.
(j)Legal Construction. In the event any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect other provisions, and the Agreement shall be construed as if
such invalid, illegal, or unenforceable provision had never been contained in it.
(k)Law Governing. This Agreement shall be construed under and in accordance with the
laws of the State of Texas; and venue for any action arising from this Agreement shall be in the State
District Court of Harris County, Texas. The parties agree to submit to the personal and subject matter
jurisdiction of said court.
(l)Survival of Covenants. Any of the representations, warranties, covenants, and obligations
of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the
termination of this Agreement shall survive.
this the _______ day of ___________, 2012.
:
By: ______________________________________
Richard Warren, President
this the ________ day of ___________, 2012.
By: _____________________________________
Name:_________________________________
Its:____________________________________
RECEIPT OF CONTRACT
Title Company acknowledges receipt of a copy of this Agreement executed by both Seller and
Purchaser on the ___ day of _______________________, 2012.
By:______________________________________
Name:___________________________________
Title:____________________________________
WHEN RECORDED RETURN TO:
(Space Above For Recorder’s Use Only)
This (“Agreement”) is made and entered into as of the
Effective Date by and between the City of La Porte, a Texas home-rule municipality (“City”),
and K. Belle Interests(“Developer”), a Texas limited liability company, acting by and through
their respective authorized officers.
as of the Effective Date, pursuant to the Purchase Agreement, Developer
has purchased the Property from the LPDC; and
prior to or concurrent with the sale of the Property to Developer, LPDC
purchased the Property from City pursuant to that certain Purchase and Sale Agreement effective
May 14, 2012, between City and LPDC (“the City Contract”) without City seeking sealed bids or
conducting an auction prior to the sale of the Property to LPDC pursuant to the statutory
exception to such requirements set forth in Texas Local Government Code §272.001(b)(4); and
as a condition of the sale of the Property to LPDC and pursuant to Texas
Local Government Code §272.001(b)(4), the City Contract requires that LPDC have the Property
redeveloped and used for the Required Use; and
LPDC has, as a condition of the conveyance of the Property to Developer,
restricted the useof the Property and required Developer to develop the Property with the
Improvements in accordance with the terms and conditions set forth herein; and
as a condition to and in consideration of the LPDC’s conveyance of the
Property to Developer, Developer has agreed to develop the Property in accordance with this
Restriction Agreement; and
Developer desires to grant City an option to repurchase the Property in the
event Developer fails to cause Commencement of Construction or Completion of Construction
(hereinafter defined) of the Improvements in accordance this Restriction Agreement, subject to
the terms and conditions hereafter set forth;
in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00) and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, City and Developer hereby agree as follows:
The Property shall be owned, held, leased, transferred, sold, mortgaged and/or conveyed
by Developer and any subsequent owners (as such term is hereinafter defined for the term
specified in Section 5.2), subject to the terms of this Restriction Agreement.
For purposes of this Agreement, the following words and phrases shall have the
following meanings unless the context clearly indicates a different meaning:
“Developer” means K. Belle Interests, a Texas limited liability company.
“City” shall mean the City of La Porte, a Texas a home rule municipality located in the
County of Harris, State of Texas.
“City Manager” shall mean the City Manager of City.
“Commencement of Construction” shall mean (i) the plans have been prepared and all
approvals thereof required by applicable governmental authorities have been obtained for
construction of the Improvements, (ii) all necessary permits for the construction of the
Improvements have been issued by the applicable governmental authorities and (iii) construction
of the elements of the building elements of the Improvements has commenced.
“Completion of Construction” shall mean (i) substantial completion of the Improvements
on the Land has occurred, and (ii) a certificate of occupancy or final inspection has been issued
by City for occupancy of the Improvements for the Required Use by Developer.
“Effective Date” shall mean the date this Agreement is signed by all parties hereto.
“LPDC” shall mean the La Porte Development Corporation, a Texas non-profit
corporation.
“Force Majeure” shall mean any contingency or cause beyond the reasonable control of a
party including, without limitation, acts of God or the public enemy, war, riot, civil commotion,
insurrection, by the order of a court resulting from any litigation brought by a third party to
prevent or delay Developer’ development, construction, or operation, City delay of permits or
other approvals, government or de facto governmental action (unless caused by acts of omissions
of the party), pending referendum, fires,explosions or floods, strikes, slowdowns or work
stoppages. Such extension shall be for a period equal to the actual length of such delay, together
with any time reasonably required by Developer to re-mobilize for construction as a result of
such delay.
“Improvements” shall mean the structures located on the Property, inclusive of any
materials, equipment, and fixtures incorporated into said structures by Developer as necessary to
be able to use obtain a certificate of occupancy from City to occupy and use the Property for the
Required Use.
“Property” shall mean Tract 1: Lots 9, 20 and 21, in Block 52, of TOWN OF LA
PORTE, an addition in Harris County, Texas, according to the map or plat thereof recorded in
Volume 57, Page 320 of the Deed Records of Harris County, Texas, SAVE LESS AND
EXCEPT that portion of the above said lots (if any) and the interest therein, deeded to or
condemned by governmental entities for the widening of West Main Street or for right of way
purposes, and further described in instrument recorded in Volume 4569, Page 499 of the Deed
Records of Harris County, Texas; and Tract 2: Being a 0.241 acre tract or parcel of land situated
in the Johnson Hunter Survey, Abstract No. 35, Harris County, Texas, and being all of Lots 7, 8
and 9 in Block 52 of the Resubdivision of Blocks 37 to 60 of the Town of La Porte, a subdivision
according to the map or plat thereof recorded in Volume 67, Page 196 of the Deed Records of
Harris County, Texas.
“Option Period” shall mean that period of time commencing on closing of the purchase of
the Land by Developer and ending on the earlier of (a) Completion of Construction or (b) (72
months.
“Option Price” shall mean the Purchase Price stated in the Purchase Agreement less all
closing costs and expenses paid orincurred by LPDC pursuant to the Purchase and Sale
Agreement and pursuant to the exercise of the Option.
“Property” shall collectively mean the Property and any Improvements following
construction thereof on the Property.
“Purchase Agreement” shall mean that certain Purchase and Sale Agreement, as amended
or assigned, by and between LPDC and Developer, effective May 15, 2012.
“Required Use” shall mean the development and use of the Property for the purpose of
operating a business enterprise that meets the City’s economic development goals and is a
permitted use under the zoning regulations applicable to the Property.
3.1. In consideration of TEN AND NO/100 DOLLARS ($10.00), in hand
paid by City to Developer and other good and valuable consideration, the receipt and sufficiency
of which is acknowledged by Developer, Developer hereby grants to City during the Option
Period an option to repurchase the Property (the “Option”).
3.2. Subject to Section 3.3, below, the Option may be
exercised by City in its sole discretion by providing written notice to Developer upon the
occurrence of the following:
(a)any time after24 months, if Developer has failed to cause Commencement of
Construction of the Improvements to occur on the Property on or before that date, provided
Commencement of Construction has in fact still not occurred on the date of the exercise of the
Option; or
(b)any time after60 months, but before the end of the Option Period, if
Commencement of Construction has occurred, but Developer has failed to cause Completion of
Construction by that date, provided Completion of Construction has in fact still not occurred on
the date of the exercise of the Option.
3.3. In the event of Force Majeure, Developer shall have such additional
time to cause Commencement of Construction or Completion of Construction, as the case may
be, so long as Developer is diligently and faithfully pursuing the same. The termination of the
Option Period shall be extended for the same number days that the performance of Developer
with respect to Commencement of Construction or Completion of Construction is extended by
Force Majeure.
3.4The City’s sole and exclusive remedy for violation of the obligation of
Developer for the Commencement of Construction of Construction and Completion of
Construction shall be the exercise of the Option.
4.1 Upon any timely exercise of the Option by City in
accordance with the foregoing provisions, the conveyance of the Property to be conveyed to City
shall be in accordance with the provisions in this Article IV.
4.2.
(a)Not later than the fifteenth (15th) business day after the exercise of the Option,
Developer shall, at Developer’ expense, deliver to City:
(i)a current commitment for an Owner’s Policy of Title Insurance from the
Title Company for the portion of the Property to be conveyed to City, setting forth the
state of title to the Property together with any easements or restrictions (existing or
created pursuant hereto) benefiting or burdening the Property, together with all
exceptions or conditions to such title;
(ii)legible copies of all documents referenced in the Title Commitment;
(iii)any environmental studies or reports that Developer may have in its
possession with respect to the Property; and,
(iv)tax certificate(s) regarding the payment of ad valorem taxes for current
and prior years.
(b)Upon any exercise of the Option, City shall have the right, at its sole option, to
cause a boundary or “as-built” survey of the Property to be made by a certified land surveyor
selected by it. Such survey shall be made at the sole cost and expense of City.
(c)City shall, not later than twenty (20) days after City’s receipt of the last of the
Survey and Title Commitment, notify Developer and Title Company of any objections to the
Survey or Title Commitment. If there are objections by City, Developer shall in good faith
attempt to satisfy them prior to Closing. If Developer delivers written notice to City not later
th
than the tenth (10) calendar day after Developer’ receipt of City’s objections that Developer is
unable tosatisfy such objections, City may either waive such objections and accept title as
Developer is able to convey or terminate the exercise of the Right by written notice to Developer
and the Title Company.
4.3.
(a)The closing of the sale of the Property identified in the notice exercising the
Option shall occur not later than sixty (60) calendar days following the date of exercise of the
Option unless otherwise extended by written agreement of Developer and City.
(b) At the closing, Developer shall deliver to City:
(i)a special warranty deed, in form and substance substantially similar to the
form used to convey the Property to Developer pursuant to the Purchase Agreement,
conveying good and indefeasible title to the Property described in the notice exercising
the Option and/or the survey obtained by City (whichever is the most accurate
description) to City, free and clear of any and all encumbrances except the Permitted
Exceptions, save and except such oil, gas, and other minerals as may have been reserved
by prior grantors;
(ii) an owner’s policy of title insurance (or equivalent) in the amount of the
Purchase Price, insuring such title to City; and
(iii) possession of the Property, free of parties in possession.
(c)At closing, City shall pay incash or by certified or cashier’s check the Option
Price described in Article II, less all Closing Costs and other costs and expenses to be paid by
Developer pursuant to this Article.
4.4. Ad valorem taxes, assessments, and any other charges against the Property and/or
improvements conveyed to City pursuant to this Article IV shall be prorated as of the Closing
Date for the current year, such that Developer will be responsible for all such items which accrue
prior to the Closing Date, and City will be responsible for all such items which accrue on and
after the Closing Date. Taxes and assessments for all prior years shall be paid by Developer.
4.5
(a) Developer will pay and be responsible for the following closing cost:
(i) the cost of all tax certificates relating to all taxes and other assessments
incurred or arising in relation to the Land;
(ii) all fees and premiums for Basic Owner’s Title Policy, and any
endorsements to the Basic Owner’s Title Policy;
(iii) one-half (½) of the Title Company’s escrow fees;
(iv) all recording fees;
(v) all costs and expenses incurred by or on behalf of Developer, including
Developer’ attorney’s fees;
(vi)all costs related to obtaining any releases of liens on the portion of the
Land conveyed relating to any loans secured by a deed of trust lien on said property; and
(vii) such other incidental costs and fees customarily paid by sellers of real
property in Harris County, Texas, for transactions of a similar nature to the transaction
contemplated herein.
(b) City hereby agrees to pay and be responsible for the following closing cost:
(i) all fees and premiums for the Survey;
(ii) one-half (½) of the Title Company’s escrow fees;
(iii) all costs and expenses incurred by or on behalf of City, including City’s
attorneys’ fees; and
(iv) such other incidental costs and fees customarily paid by purchasers of
property in Harris County, Texas, for transactions of a similar nature to the transaction
contemplated herein.
4.6.City acknowledges and agrees that the Property and
improvements conveyed pursuant to this Article IV will be conveyed by Developer at closing
subject only to such easements, conditions and restrictions as have been approved or deemed
approved by City, including; (i) utility easements granted by subdivision plat or instrument
subsequent to the purchase of the Property by Developer; and (ii) such other matters as City may
waive.
4.7City acknowledges and agrees that the Property and/or
improvements conveyed pursuant to this Article IV will be conveyed “AS IS” with all faults and
defects, whether patent or latent, existing as of the Closing. Except with respect to the quality of
the title being conveyed by Developer as set forth in the Special Warranty Deed, City
acknowledges and agrees that Developer will be making no representations, warranties,
guarantees, statements or information, express or implied, pertaining to the Property or
improvements conveyed, their condition, or any other matters whatsoever, made to or furnished
to City by Developer or any employee or agent of Developer, except as specifically set forth in
this Restriction Agreement.
5.1. No portion of the Property shallbe utilized for any use
other than the Required Use. No building shall be constructed, reconstructed, erected, altered, or
placed on any portion of the Property other than the Improvements or other structures that will be
used in conformance with the Required Use.
5.2 The restrictions set forth in Section 5.1, above, shall commence
on the Effective Date and automatically terminate following the Completion of Construction of
the Improvements.
6.1. City shall have the right, but not the obligation, to enforce this Restriction
Agreement and any covenants and restrictions contained herein, as the same may be amended as
herein provided. Subject to the limitation set forth in Section 5.1, above, enforcement of the
provisions set forth in Section 5.1 contained herein may be exercised after failure of any person
or persons violating or attempting to violate any covenants or restrictions to cure such violation
or breach within two (2) thirty (30) day notice periods after receipt of written notice thereof, by
proceeding at law or in equity, against any person or persons violating or attempting to violate
any covenants or restrictions, to restrain violation or to recover damages, and failure to enforce
any covenant, restriction or condition shall not be deemed a waiver of the right of enforcement
either with respect to the violation in question or any other violation. This Restriction
Agreement is not intended to restrict the rights of the City Council of the City of La Porte to
exercise its legislative duties and powers insofar as the Land is concerned. For further remedy,
Developer, for itself, its successors, and assigns agrees that the City may withhold building
permits, development approvals, certificates of occupancy and/or final inspection necessary for
the lawful use of any portion of the Land not then in compliance with this Agreement. The
City’s right to repurchase the Land pursuant to the exercise of the Option as set forth in Articles
III and IV of this Restriction Agreement constitutes the City’s sole and exclusive remedy for any
failure by Developer to Commence Construction or Complete Construction of the Improvements
on the Land. The rights of City under this Restriction Agreement may not be waived or released
except pursuant to an amendment or termination approved in accordance with the provisions
hereof, except by expiration of the Term.
6.2. No amendment or any termination of this Restriction Agreement shall be
effective unless and until approved by Developer and the City (as evidenced by a resolution of
the City Council executed by the Mayor and recorded in the Official Public Records in the office
of the Harris County Clerk); provided, however, the City may, without the consent of Developer,
terminate and release the restrictions set forth in Section 5.1. In the event Developer, or
subsequent owner of the Property desires to change, amend or alter the covenants, conditions or
restrictions as set forth herein, Developer, or subsequent owner, as the case may be, shall file a
written application for such change or amendment with City, which shall approve or deny such
application in whole or in part within thirty (30) days after receipt of such application. Any
change or amendment approved by the City shall not be effective unless and until an instrument
executed by the Mayor is recorded in the Official Public Records in the office of the Harris
County Clerk in accordance with this Section.
6.3. All notices, requests, demandsor other communications required or permitted
hereunder shall be in writing and shall be deemed to have been fully and completely made when
given by hand, by confirmed facsimile transmission by overnight delivery by Federal Express or
other reliable courier or the mailing of such by registered or certified mail, addressed as follows:
If intended for City, to:With a copy to:
City of La PorteAskins & Askins, P.C.
Attn: City ManagerAttn: Clark T. Askins
604 W. Fairmont Parkway P.O. Box 1218
La Porte, Texas 77571La Porte, Texas 77572-1218
If intended for Developer:
___________________________
___________________________
___________________________
La Porte, Texas 77571
Any party may at any time and from time to time by notice in writing to the other party hereto
change the name or address of the person to who notice is to be given as hereinbefore provided.
6.4 This Restriction Agreement shall bind, and inure to the benefit
of, the parties and their respective successors and assigns.
6.5. This Restriction Agreement is entered into and is intended to be
performed in the State of Texas, and the validity, enforceability, interpretation and construction
hereof shall be determined and governed by the laws (other than conflict of laws provisions) of
the State of Texas. Venue for any action shall be in the state district court of Harris County,
Texas. The parties agree to submit to the personal and subject matter jurisdiction of said court.
6.6. The parties agree that City may record this Restriction Agreement in the
Official Public Records in the office of the Harris County Clerk.
6.7This Restriction Agreement and the restrictions,
covenants, and conditions set forth herein are for the purpose of protecting the value and
desirability of the Property as well as to carry out compliance with Tex. Loc. Govt. Code
§272.001(a)(4), as amended, and, consequently, shall run with the Property and be binding on
the Developer and all parties having all right, title, or interest in the Land, in whole or in part,
and their heirs, successors and assigns. These covenants, conditions and restrictions shall be for
the benefit of the City of La Porte, Texas.This Restriction Agreement is binding upon
Developer and each and every subsequent owner, tenant, subtenant, licensee, manager, and
occupant of all or any portion of the Property, but only during the term of such party’s
ownership, tenancy, license, management or occupancy of the Property, for which such party
shall remain liable and shall be binding upon and inure to the benefit of the City and its
successors and assigns. It is expressly understood and agreed that acceptance of title to all or a
portion of the Property shall automatically, and without further acknowledgement or
confirmation from the owner, constitute such owner’s assumption of the obligations of
Developer hereunder.
6.8. Invalidation of any one of these covenants, conditions, or restrictions by
judgment or court order shall in no way affect any other provisions, and all other provisions shall
remain in full force and effect.
6.9This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and no statement, promise, representation or
modification hereof by any person, if any, and whether oral or written, shall be binding upon any
party.
6.10. 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 one and the same instrument. Each counterpart may consist
of a number of copies hereof each signed by less than all, but together signed by all of the parties
hereto.
on this ______ day of _______________________, 2012.
By:
Steve Gillett, Interim City Manager
By:
City Attorney
Acknowledged before me, the undersigned authority, this _________ day of
__________________________, 2012, by Steve Gillett, Interim City Manager for theCity of La
Porte, Texas, a Texas home rule municipality, on behalf of such municipality.
Notary Public, State of Texas
My Commission expires:
on this _____ day of ___________________. 2012.
By:
Name:____________________________________
Title:_____________________________________
This instrument was acknowledged before me on the _______ day of
_______________________,by _________________________, __________________ of
_______________________, a Texas _______________________, on behalf of said
____________.
Notary Public, State of Texas
Printed Name:______________________________
My Commission expires:
_______________________________
Forthe past two years, the City of La Porte has participated with Harris County Transit
Authority, City of Pasadena, and San Jacinto College to provide regional bus service. Pasadena,
the College, and La Porte must fund a total of $459,000. The County administers a federal grant
for the remainder of the cost of providing the service. La Porte’s funding share has been $90,000
per year. The City did receive a large one-time reduction in funding level in the current fiscal
year based on the County’s ability to leverage additional federal funding.
The current agreement expires on August 31, 2012. Harris County has enough funds on hand
now that service can be extended through September 30, 2012, which will bring the renewals in
line with the fiscal year calendar. Staff met with representatives of each entity this Spring and
the County requests that each entity provide direction on whether it intends to continue
participation in the bus service. The County indicated that the participating entities need to
provide direction by the first of June 2012.
Staff recommends including funding for the regional bus servicein the proposed Fiscal Year
2012-13 budget in an amount not to exceed $90,000. This service is proposed to be funded with
a 50-50 split between the General Fund and the Development Corporation Board Fund.
Consider approval or other action to include funding for regional bus service in the proposed
Fiscal Year 2012-13 budget in an amount not to exceed $90,000.
Steve Gillett,Interim City Manager Date
In February 2008,the City entered in a lease agreement with Frontier Logistics, LLC and La Porte Real
Property, LLC(LRP) for the reservation of a piece of land at the southeast corner of the property located
at 918 N. Broadway for the construction of a rail spur. The proposed rail spur would run from the
existing railroad tracks on the east side of the property, across the southeast corner, and continuing on to
the former North “H” Street right-of-way. At this time, the rail spur agreement has expired and the
property at 918 No. Broadway has been sold.
Section 4 of the attached Rail Spur Agreement outlines refundingterms for the $200,000 deposit that was
placed with the City. Pursuant to this section, LRP has requested the refunding of $175,000 of the initial
$200,000 deposit. Twenty-five thousand of the initial deposit is retained by the City in consideration of
administrative costs incurred as part of the agreement.
Staff recommends approval of a $175,000refund to La Porte Real Property, LLC, pursuant to Section 4
of the Rail Spur Agreement.
Consider approval or other action of a refund to La Porte Real Property, LLC, pursuant to Section 4 of the
Rail Spur Agreement.
In January 2012, the City conducted a citizen satisfaction survey to find out what residents thought about
the quality of a variety of services. The survey was completely anonymous and was sent to a random
sampling of 1,200 households. A total of 330 surveys were returned.
A summary of the survey results will be presented this evening and the full report is available online at
the City’s website.
None.
:Drainage Report
At the request of the Drainage Committee, staff is providing an update of active projects for Council
review. The update to the drainage projects is attached asan exhibit. Staff will be present to answer any
questions that Council may have regarding the projects in the report.
ReceiveDrainage Report.
CITY COUNCIL DRAINAGE REPORT
May 14, 2012
Contract Design and Construction
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South 16Street. Design complete, pending agency approval.
F101 Channel Improvements by HCFCD. Hydro excavation complete. Land
Dev Engineering preparing Preliminary Engineering Report to be finalized by
January 2013.
In-House Design and Construction of City-Initiated Projects
F216 Regional Detention Phase II.Preparing budget adjustments for GLO
approval.
Battleview Area. Survey and design complete. Plans submitted for pipeline
review and approval.
East Main. Construction is substantially complete.
Sunrise and Broadway. Installation of additional culverts by Public Works at
South Shady Lane and Baywood along Broadway in progress.
Battleground Estates and Shady River. Submitted request to HC for
improvements of P Street and F101 and contracting with consultant to prepare an
impact analysis for McCabe Road and A104.
In-House Drainage Maintenance Activities
North Shady Lane. Survey is complete and design underway for drainage
improvements along North Shady Lane.
In-Fill DrainageMaintenance. Public Works working on completing drainage
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maintenance at 15and C Streetand East Main Street.
Council Agenda Item
May 14, 2012
10.ADMINISTRATIVE REPORTS
(a)
(b)
(c)
(d)
11. COUNCIL COMMENTS
12.EXECUTIVE SESSION
Texas Government Code, Section 551.074 –
13. RECONVENE
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Council Agenda Item
May 14, 2012
14. ADJOURN
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