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HomeMy WebLinkAbout09-3511 ord200 ORDINANCE NO. 09-3511 ORDINANCE AUTHORIZING THE TRANSFER OF LOT 3, BLOCK 1, COUNTRY CLUB ADDITION, AN ADDITION TO THE CITY OF PLAINVIEW, HALE COUNTY, TEXAS TO PLAINVIEW HABITAT FOR HUMANITY, INCORPORATED, IN ACCORDANCE WITH SECTION 253.011 AND SECTION 272.001 OF THE TEXAS LOCAL GOVERNMENT CODE; AND AUTHORIZING THE MAYOR TO EXECUTE ALL DOCUMENTS NECESSARY TO TRANSFER OWNERSHIP; THE TRANSFER OF THIS PROPERTY IS NOT SUBJECT TO THE NOTICE, BIDDING, AND OBTAINING FAIR MARKET VALUE REQUIREMENTS OF STATE LAW. WHEREAS, the City of Plainview is the owner of certain real property located in the City of Plainview, Hale County, Texas; and WHEREAS, the City Council finds it to be in the public interest to transfer said property to Plainview Habitat for Humanity, Inc., which will primarily use the property to construct single family housing to low income households; and WHEREAS, the City Council finds that said conveyance is made pursuant to Texas Local Government Code Section 253.011 and Section 272.001; NOW, THEREFORE, The City of Plainview hereby ordains that: ~F('.Tlt'~N I The Mayor is hereby authorized and directed to execute, respectively, on behalf of the City of Plainview, an agreement between the City and Plainview Habitat for Humanity, Inc., concerning the transfer of specific lots described in Section Two herein, from the City of Plainview to Plainview Habitat for Humanity, Inc. Said agreement is to be in substantially the form as Exhibit "A" attached herein and incorporated by reference for all legal purposes. SECTION II. That the real property to be conveyed by the City of Plainview is as follows: Being all of Lot 3, Block 1, Country Club Addition, an addition to the City of Plainview, Hale County, Texas. SECTION III. The Mayor is hereby authorized to sign all legal documentation necessary to bitat Ord. 09-3511 Page 1 of 3 201 convey the City-owned property described above to Plainview Habitat for Humanity, Inc., pursuant to Texas Local Government Code Section 253.011 and Section 272.001. SECTION IV. The public purpose is the development of single family housing to low income households for the citizens of Plainview, Texas. SECTION V. Provisions of this Ordinance are cumulative and nothing herein shall prevent, alter or diminish the applicability or enforcement of other ordinances restricting, regulating or governing the subject matter herein. SECTION VI. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof. SECTION VII. All ordinances or portions of any ordinance of the City of Plainview, Texas, in conflict herewith, are hereby amended to conform with the provisions hereof. SECTION VIII. This Ordinance shall be in full force and effect upon its passage as required by law. PASSED AND APPROVED on first reading this 10th day of February, 2009. PASSED AND APPROVED on second reading t~i~s 24th day of March, 2009. .,~~ l' ~n C. Anderso ,Mayor ATTEST: Belinda Hinojosa, City Secr ary Habitat Ord. 09-3511 Page 2 of 3 202 APPROVED A~TCNCONT reg ~i J.iam, Ci~lanager APPROVED AS TO FORM: Leslie Spear Pe rce, City Attorney Habitat Ord. 09-3511 Page 3 of 3 203 EXH161T "A" TO ORDINANCE AGREEMENT BETWEEN CITY OF PLAINVIEW, TEXAS AND PLAINVIEW HABITAT FOR HUMANITY, INCORPORATED THE STATE OF TEXAS § COUNTY OF HALE § This Agreement made by and between the CITY OF PLAINVIEW, TEXAS, a home rule municipal corporation, herein called "City", and PLAINVIEW HABITAT FOR HUMANITY, INCORPORATED, hereinafter called "Habitat"; WITNESSTH: I. PURPOSE The purpose of this Agreement is to state the terms and conditions by which the City shall convey real property purchased with Habitat's individual donations and corporate sponsors in the amount of Four Thousand Five Hundred and No/100 Dollars ($4500.00) for the purpose of developing single family housing affordable to low income households. II. CONVEYANCE OF REAL PROPERTY The City agrees to convey specific real property within the City of Plainview, Hale County, Texas, for the purpose of improving the lots conveyed and increasing the conditions and value of the surrounding subdivision. The specific property to be conveyed by the City is described in Exhibit "A", attached hereto and incorporated by reference. This conveyance of real properly was authorized and all claims of the governmental entities involved relinquished against the City for the sale of such real property to the Habitat under the conditions stated in this Agreement. The property is conveyed and executed under the explicit authorization of the City Council of the City of Plainview, Texas, and pursuant to authority granted by Texas Local Government Code, Section 253.011 and Section 272.001. III. TERM OF CONTRACT The term of this Agreement shall begin March 1, 2009 and end March 1, 2011 unless the housing project is not completed and an extension of time is granted by the City Council. Habitat Agreement 2204 Norma Page 1 of 7 204 IV. INDEMNITY HABITAT SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY AND ALL OF THE CITY'S OFFICERS, AGENTS AND EMPLOYEES FROM ALL SUITS, ACTIONS, CLAIMS, DAMAGES, PERSONAL INJURIES, LOSSES, PROPERTY DAMAGE AND EXPENSES OF ANY CHARACTER WHATSOEVER, INCLUDING ATTORNEY'S FEES, BROUGHT FOR, OR ON ACCOUNT OF, ANY INJURIES OR DAMAGES RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, ON ACCOUNT OF ANY NEGLIGENT ACT OF HABITAT OR ANY OF ITS OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, OR SUBCONTRACTORS, IN THE EXECUTION, SUPERVISION AND OPERATIONS GROWING OUT OF OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OF THIS AGREEMENT. HABITAT WILL BE REQUIRED TO PAY ANY JUDGMENT WITH COSTS WHICH MAY BE OBTAINED AGAINST THE CITY OR ANY OF CITY'S OFFICERS, AGENTS OR EMPLOYEES, INCLUDING ATTORNEY'S FEES. HABITAT SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY AND ALL OF THE CITY'S OFFICERS, AGENTS AND EMPLOYEES FROM ALL SUITS, ACTIONS, CLAIMS, DAMAGES, PERSONAL INJURIES, LOSSES, PROPERTY DAMAGE AND EXPENSES OF ANY CHARACTER WHATSOEVER, INCLUDING ATTORNEY'S FEES, BROUGHT FOR, OR ON ACCOUNT OF, ANY INJURIES OR DAMAGES RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, ON ACCOUNT OF ANY NEGLIGENT ACT OF THE CITY OR ANY OF ITS OFFICERS, AGENTS, OR EMPLOYEES, WHETHER SUCH ACT OR OMISSION WAS THE SOLE PROXIMATE CAUSE OF THE INJURY OR DAMAGE OR A PROXIMATE CAUSE JOINTLY AND CONCURRENTLY WITH THE NEGLIGENCE OF HABITAT OR ITS OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, OR SUBCONTRACTORS, IN THE EXECUTION, SUPERVISION AND OPERATIONS GROWING OUT OF OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OF THIS AGREEMENT, AND HABITAT WILL BE REQUIRED TO PAY ANY JUDGMENT WITH COSTS WHICH MAY BE OBTAINED AGAINST THE CITY OR ANY OF CITY'S OFFICERS, AGENTS OR EMPLOYEES, INCLUDING ATTORNEY'S FEES. Habitat agrees that it will indemnify and save the City harmless from all claims growing out of any demands of subcontractors, laborers, workmen, mechanics, materialmen, and suppliers of machinery and parts thereof, equipment, power tools, all supplies, including commissary incurred in the furtherance of the performance of this Agreement. When City so desires, Habitat shall furnish satisfactory evidence that all obligations of the nature hereinabove designated have been paid, discharged or waived. Habitat Agreement 2204 Norma Page 2 of 7 205 V. INDEPENDENT CONTRACTOR It is expressly understood and agreed that Habitat shall perform all work and services described herein as an independent contractor and not as an ofhcer, agent, servant or employee of the City. The Habitat shall have exclusive control of and the exclusive right to control the details for the services and work performed hereunder, and all persons performing the same, including being solely responsible for the acts and omissions of its officers, agents, employees, contractors, and subcontractors. The doctrine of respondeat superior shall not apply as between City and Habitat, its officers, agents, employees, contractors, and subcontractors. Nothing herein shall be construed as creating a partnership or joint enterprise between City and Habitat. No person performing any work hereunder shall be considered an officer, agent, servant or employee of the City. Further, it is specifically understood and agreed that nothing in this Agreement is intended or shall be construed as creating a "Community of Pecuniary Interest" or "An Equal Right of Control" which would give rise to vicarious liability. Habitat shall be an independent contractor under this Agreement and shall assume all of the rights, obligations, and liabilities applicable to it as such independent contractor hereunder. City does not have the power to direct the order in which the work is done. City shall not have the right to control the means, methods or details of Habitat's work. Habitat shall assume exclusive responsibility for the work. Habitat is entirely free to do the work in its own way. VI. APPLICABLE LAWS, ORDINANCES Habitat shall comply with all applicable laws, ordinances and codes of the United States, State of Texas and the City. Habitat hereby agrees as follows: A. Habitat will comply with Title VI of the Civil Rights Act of 1964 (Public Law 88-352), which provides that no person in the United States shall on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity for which the applicant received federal financial assistance. B. Habitat will comply with Title VIII of the Civil Rights Act of 1968 (Public Law 90-284), which provides that it is the policy of the United States to provide for fair housing throughout the United States. It prohibits particular discriminatory acts regarding housing if the discrimination is based on race, color, religion, sex, national origin, family status, or mental and physical disability. C. Habitat shall obtain and maintain documentation evidencing that program beneficiaries meet Habitat for Humanity International's ("International") program income eligibility criteria. Habitat shall Habitat Agreement 2204 Norma Page 3 of 7 206. further comply with the retention of records as specified by International. D. No officer, employee or board member of Habitat shall have a financial interest, direct or indirect, in this Agreement or the monies transferred hereunder, or be financially interested, directly or indirectly, in the sale to Habitat of any land, materials, supplies or services purchased with any funds transferred hereunder, except on behalf of Habitat as an officer, employee, member, or program participant. E. Habitat will construct housing that is valued at no more than 95% of Plainview's median purchase price as specified in Section 203(b) of HUD's FHA single family mortgage insurance program. Housing must also pass HUD's Housing Quality Standards and the City's Homebuyer Assistance Program construction requirements. F. Habitat shall make available to the City, as determined by the City, information and/or data which document compliance, in all phases of its work, with the above paragraphs A through F. Habitat shall fully cooperate with City when City monitors the services and work performed under this Agreement, which the City may do at any time during the term of this Agreement. Habitat shall maintain accounts and records adequate to identify and account for all cost pertaining to the Agreement. These records will be made available to the City for audit purposes and will be retained for four (4) years after the expiration of this Agreement unless permission to destroy them is granted by the City. VII, PROGRAM INCOME It is agreed and understood that there will be no program income generated as a result of this Agreement. VIII. PROJECT REPORTS Yearly status reports are to be prepared by Habitat and submitted in a timely fashion to the City. A final performance report shall be prepared and submitted promptly after project completion. An inventory of Habitat for Humanity acquired assets shall be submitted to the City in regard to 2204 Norma, in a form suitable to the City, on an annual basis and at the end of the Agreement. Habitat Agreement 2204 Norma Page 4 of 7 207 IX. SOVEREIGN IMMUNITY By executing this contract the City is not waiving its right of sovereign immunity. The City is retaining its immunity from suit. The City is not granting consent to be sued by legislative resolution or action. THERE IS NO WAIVER OF SOVEREIGN IMMUNITY. X. ATTORNEY FEES In the event of any conflict between the parties hereto such that either party brings or commences any legal action or proceeding related to this Agreement, including but not limited to any action pursuant to the provisions of the Texas Uniform Declaratory Judgments Act (Tex. Civ. Prac. & Rem. Code §§37.001, et seq.), the parties hereto agree to waive any and all rights to recovery of attorney fees to which the prevailing party might otherwise be entitled. XI. DEFAULT PROVISION In the event that either Habitat or the City fails to perform or is unable to perform substantially its obligations under the terms of this Agreement, the nondefaulting party shall notify the defaulting party in writing of such default. Within five (5) days after receipt of such notification, Habitat and City shall meet to discuss the default, the reasons thereof and the methods to cure default. If the defaulting party has not substantially cured the default within ten (10) days after receipt of such notification, or the City and Habitat have not agreed within such time upon a solution to the default, the nondefaulting party may, at its option, pursue any remedies at law or in equity. In any event this Agreement may be terminated by mutual consent of Habitat and City in writing. XII. RELEASE HABITAT HEREBY RELEASES, RELINQUISHES, ACQUITS AND FOREVER DISCHARGES CITY, CITY'S EMPLOYEES AND OFFICERS, FROM ANY AND ALL DEMANDS, CLAIMS OR CAUSES OF ACTION OF ANY KIND WHATSOEVER WHICH HABITAT HAS OR MIGHT HAVE IN THE FUTURE, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, QUANTUM MERUIT, CLAIMS UNDER THE DUE PROCESS AND TAKINGS CLAUSES OF THE TEXAS AND UNITED STATES CONSTITUTIONS, TORT CLAIMS, OR CITY'S NEGLIGENCE. Habitat Agreement 2204 Norma Page 5 of 7 208 XIII. THIRD-PARTY BENEFICIARY The City's approval of this Agreement does not create a third party beneficiary. There is no third party beneficiary to this Agreement. No person or entity who is not a party to this Agreement shall have any third party beneficiary or other rights hereunder. XIV. AUTOMATIC REVERSION Habitat and City explicitly agree that this conveyance complies with the conditions of Texas Local Government Code, Section 253.011 and Section 272.001. If, for any reason, Habitat at any time fails to use the property for the public purpose in the manner for which it was conveyed, the property shall automatically revert to the City. IN WITNESS EREOF, the arties hereto have executed this Agreement this the ~ay of GK , 2009. CITY OF PLAINVIEW, TEXAS 901adway Pla vi w. Texas ~ . ~ .~- C. Ander n, Mayor ATTEST: ~~~~ Belinda Hinojosa, City Se ry APPROVED AS TO FORM: Leslie Spear a rce, Ci A orney Habitat Agreement 2204 Norma Page 6 of 7 209 PLAINVIEW HABITAT FOR HUMANITY, INCORPORATED P.O. Box 1125 Plainview, TX 79073-1125 By: ~G~ .c ~~~~~ Bill Coleman, President THE STATE OF TEXAS § COUNTY OF HALE § EFO E ME, the undersigned authority, on this day personally appeared /~~ CO ~ Gh an officer of PLAINVIEW HABITAT FOR HUMANITY, INCORPORATED, known to me to be the person and official whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act and deed of said corporation, for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ~7f~'day of a G`t , 2009. ~~~ °~y'-~',°d~'`~`~ ~~ Notary Public, State of Te o~"~Y A~ BELINDA HINOJOSA * , Notary Public STATE OF TEXAS My Comm. Exp. 04/2812009 Habitat Agreement 2204 Norma Page 7 of 7 210. EXHIBIT "A" TO AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY AND ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. QUITCLAIM DEED THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF HALE § That the undersigned CITY OF PLAINVIEW, TEXAS, a Texas Home Rule Municipal Corporation, 901 Broadway, Plainview, Texas 79072 of the County of Hale, Sate of Texas, hereinafter referred to as "Grantor", whether one or more, for and in consideration of Grantee herein named to use the property in a manner that primarily promotes a public purpose of the City of Plainview in accordance with Section 253.011 of the Texas Local Government Code. The public purpose for the conveyance of such real property is for the Grantee to develop single family housing to low income households. The Grantor has QUITCLAIMED, and by these presents does QUITCLAIM unto PLAINVIEW HABITAT FOR HUMANITY, INC., P.O. Box 1125, Plainview, Texas 79073-1125, herein referred to as "Grantee", whether one or more, the real property (the "Property") described as follows: Being all of LOT THREE (3) BLOCK ONE (1), COUNTRY CLUB ADDITION, an addition to the City of Plainview, Hale County, Texas, according to the map or plat thereof, recorded in the Deed Records of Hale County, Texas. BY EXECUTING THIS QUITCLAIM DEED, THE GRANTOR AND THE GRANTEE AGREE THAT GRANTEE IS TAKING THE PROPERTY "AS IS" WITH ANY AND ALL LATENT AND PATENT DEFECTS AND THAT THERE IS NO WARRANTY, EXPRESS OR IMPLIED BEING MADE BY THE CITY OF PLAINVIEW, TEXAS THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE. THE GRANTEE ACKNOWLEDGES THAT GRANTEE IS NOT RELYING UPON ANY REPRESENTATION MADE BY THE CITY OF PLAINVIEW WITH RESPECT TO THE CONDITION OF THE PROPERTY, BUT IS RELYING UPON GRANTEE'S EXAMINATION OF THE PROPERTY. GRANTEE ALSO RECOGNIZES BY AGREEING TO PURCHASE THE PROPERTY "AS IS" THAT GRANTEE AGREES TO MAKE GRANTEE'S OWN APPRAISAL OF THE PROPERTY AND TO ACCEPT THE RISK THAT GRANTEE MAY BE WRONG. THE GRANTOR GIVES NO ASSURANCES, EXPRESS OR IMPLIED, CONCERNING THE VALUE OR CONDITION OF THE Habitat Quitclaim Deed Page 1 of 3 211 PROPERTY SOLD. IN NO EVENT SHALL A GRANTEE HAVE A RIGHT TO RECOVER CONSEQUENTIAL DAMAGES. THEREFORE, THE GRANTEE WILL TAKE THE PROPERTY UNDER THE EXPRESS UNDERSTANDING THE PROPERTY IS ACCEPTED "AS IS" AND WITH ALL FAULT, EXCLUDING EXPRESS OR IMPLIED WARRANTIES. PROVISIONS OF THIS PARAGRAPH SURVIVE THE CLOSING. In accordance with Section 253.011 of the Texas Local Government Code, the ownership of the above-referenced property automatically reverts back to the Grantor in the event the Grantee at any time fails to use the property to promote the public purpose of developing affordable housing. TO HAVE AND TO HOLD all of Grantor's right, title and interest in and to the above described property and premises unto the Grantee, and Grantee's heirs, administrators, executors, successors and/or assigns forever; so that neither Grantor nor Grantor's heirs, administrators, executors, successors and/or assigns shall have, claim or demand any right or title to the aforesaid property, premises or appurtenances or any part thereof. TN EXECUTED this ~ day of ~"t i~I(.~f~ , 2009. GRANTOR CI F PLAINVIEW, TEXAS By~ ~' ohn C. An rson, Mayor THE STATE OF TEXAS § COUNTY OF HALE § This instrument was acknowledge before me on the~7~ day of ~r(h 2009, by John C. Anderson, City of Plainview, xas. - _::.~.. Notary Public, State of Texas o~P~r pie( 13ELINDA HINOJOSA * ~ , Notary Public STATE OF TEXAS My Comm. Exp. 04/23/2009 J\\ Habitat Quitclaim Deed Page 2 of 3 212, ACCEPTED BY GRANTEE PLAINVIEW HABITAT FOR HUMANITY, INC. Bill A. Coleman, President THE STATE OF TEXAS § COUNTY OF HALE § B FO~tE, ME, he undersigned authority, on this day personally appeared ~~~~ ~ (,O1~C11~/'1 an officer of PLAINVIEW HABITAT FOR HUMANITY, INC., known to me to be the person and official whose name is subscribed to the foregoing instrument, and acknowledge to me that he executed the same as the act and deed of said corporation, for the purposes and consideration therein expressed, and in the capacity therein stated. I'G~ , 2009. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ~~ay of 2~~ G°< BI=LINDA HINOJOSA `' *~f Notary Public `g` STATE OF TEXAS 9~oF PAy Comm. Exp. Oq/23~2009 JV T'J V'. Habitat Quitclaim Deed ~~d~ ~ Notary Public, State of T s Page 3 of 3