Ordinance No. 15,063 ORDINANCE NO. 15,063
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
ACCEPTING THE BID OF MIRAMAR PROPERTIES, LLC; AUTHORIZING THE
LEASE OF APPROXIMATELY 105.9171 ACRES OF LAND SITUATED IN THE
WILLIAM SCOTT LOWER LEAGUE, ABSTRACT NO. 65, HARRIS COUNTY,
TEXAS, TO BUILD BAYTOWN I, LLC, FOR THE DEVELOPMENT AND
OPERATION OF A PUBLIC GOLF COURSE; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
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WHEREAS, the City of Baytown advertised to accept proposals for the lease and development of
Evergreen Golf Course to be received by December 29, 2021; and
WHEREAS, notice to bidders as to the time and place, when and where the offers would be
accepted was published pursuant to section 2-768 of the Code of Ordinances of the City of Baytown; and
WHEREAS,all bids were opened and publicly read in the City Hall of the City of Baytown at 2:00
p.m., on December 29,2021, as per published notice to bidders; and
WHEREAS, Miramar Properties Group, LLC, submitted a proposal as per published notice to
bidders and has since assigned its interest in its proposal to Build Baytown I, LLC; and
WHEREAS, contingent upon the execution of a lease agreement, the City is willing to lease the
Property to Build Baytown I, LLC;NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS:
Section 1: That the City Council of the City of Baytown,Texas,hereby accepts the bid of Miramar
Properties, LLC, and the assignment to Build Baytown I, LLC, for the development and operation of a
public golf course.
Section 2: That the City Council of the City of Baytown,Texas,hereby authorizes and directs the
City Manager to execute and the City Clerk to attest to a lease agreement of approximately 105.9171 acres
of land situated in the William Scott Lower League, Abstract 65,Harris County,Texas,to Build Baytown,
I,LLC,pursuant to the terms of the Lease Agreement attached hereto as Exhibit"A,"which is incorporated
herein for all intents and purposes.
Section 3: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Coun '1 of the City of
Baytown this the 14"day of April, 2022.
ON EAATILLO, ayor
ATTEST:
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AP TO
VED AS TO FO
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f i� of:
TREVOR FANNING, Interim City Attorney
R Trevor ORDINANCES 2022 4 14.22 lease ord docx
EXHIBIT "A"
LEASE AGREEMENT
This LEASE AGREEMENT (this "Lease") is made and entered into as of the day of
April, 2022 ("Effective Date") by and between the CITY OF BAYTOWN, TEXAS, a home-rule
municipal corporation of Harris and Chambers Counties, Texas ("Landlord"), and BUILD
BAYTOWN I, LLC, a Texas limited liability company ("Tenant") (each, a "Party").
Recitals
A. Landlord is the owner of the Property, as defined below.
B. Landlord desires to lease the Property to Tenant, and Tenant desires to lease the Property from
Landlord.
C. Landlord also desires to grant Tenant an option to lease the Option Tract, as defined below,
pursuant to this Lease, and thereby cause such Option Tract to become a part of the Property.
NOW, THEREFORE, for and in consideration of the rents hereunder, the terms and conditions
hereof, and other good and value consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. Property; Option to Lease Option Tract.
1.1 Property. The "Property" consists of the following: (a) that certain tract of land in the City of
Baytown, Harris County, Texas, that is defined and described as the "Property" on Exhibit A and
depicted as such on Exhibit B, each of which Exhibit is attached hereto and incorporated herein
by this reference (the "Land"); (b) all buildings, structures, improvements, fences, parking lots,
landscaping, fixtures, equipment, apparatus, poles, appliances, and related surface and subsurface
infrastructure (collectively, "Improvement Items") that are located on or under, or affixed to, the
Land on the Effective Date (the "Existing Improvements"); (c) all rights, privileges, easements,
and rights-of-way appurtenant to the Land; (d) all air rights and air space above the Land; (e) all
of Landlord's other rights, privileges and easements appurtenant to the Land, including any
intangible property rights, concessions, pouring and branding rights, advertising and development
rights; and (f) all of the Project Improvements(as defined below), as and when constructed on the
Land. Landlord hereby leases and demises the Property to Tenant, and Tenant hereby accepts and
leases the Property from Landlord, on and subject to all the terms and conditions of this Lease.
1.2 Option to Lease Option Tract.
1.2.1 Landlord hereby grants Tenant an option to lease the "Option Tract," being that
certain tract of land in the City of Baytown, Harris County, Texas, that is defined and
described as the "Option Tract" on Exhibit A and depicted as such on Exhibit B. Such
option may only be exercised in accordance with this Section 1.2.
1.2.2 If Tenant desires to exercise its option as to the Option Tract, it shall do so by
delivering written notice to Landlord of such election on or before the first(Is')anniversary
of the Effective Date (an "Option Exercise Notice"). If Tenant timely delivers an Option
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Exercise Notice as to the Option Tract, then Tenant must commence development of the
Option Tract within 180 days after delivery of the Option Exercise Notice.
1.2.2.1 If Tenant(a) fails to timely deliver an Option Exercise Notice,or(b)timely
delivers an Option Exercise Notice but fails to timely commence development of
the Option Tract, then Tenant's option shall automatically terminate and become
null and void.
1.2.2.2 If Tenant (a) timely delivers an Option Exercise Notice, and (b) timely
commences development of the Option Tract, then, automatically upon the timely
commencement of such development, the following shall occur:
0) the Option Tract shall be deemed part of the Land and the Property;
(ii) consequently, all of the Existing Improvements, rights, privileges,
easements, rights-of-way, Project Improvements, and other assets and
interests described in clauses (b) through (f) of Section 1.1, to the extent
applicable to the Option Tract (collectively, "Associated Rights"), shall be
deemed part of the Property; and
(iii) Landlord shall be deemed to have leased and demised the Option
Tract and Associated Rights to Tenant, and Tenant shall be deemed to have
accepted and leased the Option Tract and Associated Rights from Landlord,
on and subject to all the terms and conditions of this Lease, for the
remainder of the Lease Term and for no consideration other than Tenant's
existing obligations under this Lease, including, without limitation,
payment of the Rent described in Section 5.1.
1.2.3 As of the Effective Date, Landlord hereby grants Tenant a non-exclusive license to
go onto the Option Tract and to conduct thereon (either directly or through such agents and
consultants as Tenant may select) such due diligence, surveys, tests, studies, reviews and
analyses of the Option Tract as Tenant may elect for the purpose of assisting it in deciding
whether to exercise its option as to the Option Tract, and for the purpose of preparing or
commencing to conduct development activities thereon; provided, however, that Tenant
shall not conduct any invasive or subsoil testing of the Option Tract without Landlord's
prior written consent, which shall not be unreasonably withheld. If Tenant's option as to
the Option Tract terminates pursuant to Section 1.2.2.1, then Tenant's license under this
Section 1.2.3 as to the Option Tract shall automatically terminate at the same time.
2. Term. The term of this Lease is 480 months (the "Lease Term") commencing on the Effective
Date and terminating on April , 2062, unless this Lease is earlier terminated in accordance with
its terms and conditions.
3. Condition of Property; Acceptance.
3.1. Representations. Landlord hereby represents and warrants to Tenant that (a) Landlord has
good and marketable fee simple title to the Property; (b) Landlord has the authority to enter into
this Lease; (c) except as set forth herein, there are no (i) rights of first refusal, (ii) rights of first
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offer,or(iii)options to lease,purchase or finance all or any portion of the Property;(d)the Property
is zoned SF2 ("Mixed residential at low to medium densities") and is suitable for the Permitted
Use(as defined below); and(e) to the best knowledge of Landlord, the Property is not in violation
of any Law relating to Hazardous Materials (as defined below).
3.2. Acceptance-, Condition of Property. Tenant accepts the Property in its present condition "as
is." Tenant acknowledges that it has had full opportunity to examine the Property and obtain
knowledge of the physical condition of the Property, its title, zoning, present uses, streets,
sidewalks, parking areas, curbs and access thereto. Except as expressly set forth in this Lease,
Landlord shall have no responsibility to make any improvements or repairs to the Property.
4.Tenant's Work; Improvements.
4.1. Landlord's Work. Landlord is not required to modify the Property or construct site
improvements.
4.2.Tenant's Work. Tenant agrees to improve the Property by constructing an 18 hole golf course
that will play a minimum of 18 holes by way of a proprietary routing plan of 6,200 yards("Tenant's
Work"),consisting of the Project Improvements and Project Improvements Work as described on
Exhibit C attached hereto. Tenant agrees to commence Tenant's Work within 75 days of the
Effective Date and to diligently prosecute Tenant's Work to completion.
4.2.1 Tenant shall complete Tenant's Work within eighteen (18) months of the execution
of this agreement.
4.2.2 Following the completion of the Project Improvements and the initial public opening
of the golf course,Tenant agrees to provide a golf course which remains open to the public
throughout the Lease Term, subject to:
(a) short-term scheduled closures for routine maintenance (not to exceed 30 days
in any calendar year); and
(b) such unscheduled closures as may be necessary (i) to repair, restore or rebuild
buildings or other substantial structures included in the Improvements that are
damaged by fire or other perils, pursuant to Section 13 (unless Tenant terminates
the Lease in accordance with such Section 13),or(ii)to repair or restore other parts
of the Property that are damaged by fire or other perils, if Tenant deems such repair
or restoration necessary; and subject to Section 12.2.1.
4.2.3. Plans and Specifications. Tenant shall submit to Landlord initial plans and
specifications for Tenant's Work, prior to Tenant's commencement thereof. Landlord shall
have 20 days following receipt of the initial plans and specifications (or any modification
thereof) to provide Tenant with Landlord's comments, which shall be reasonably
considered by Tenant. As required by Law, Tenant shall perform all Tenant's Work in
accordance with the applicable requirements of Governmental Authorities. Tenant shall
obtain all Permits required in connection with Tenant's Work and the New Improvements
(as defined below).
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4.2.4 Facility Improvements and Additions. Tenant shall submit to Landlord any plans
and specifications for modifications to existing buildings or facilities, and construction of
new buildings or facilities on the Property. Landlord shall have 30 days after the
submission of such plans to approve or disapprove.
4.3. Improvements. As used herein, "Improvements" shall collectively mean (a) the Existing
Improvements, and (b) all Improvement Items that are added, installed or constructed on or under
the Property as a result of Tenant's Work (being the "Project Improvements"described on Exhibit
C attached hereto and incorporated herein by this reference). The Project Improvements shall be
the property of Tenant during the Lease Term. Upon the expiration of the Lease Term or earlier
termination of this Lease, all right, title and interest to the Project Improvements shall
automatically vest in the Landlord.
5. Rent.
5.1. Rent. Provided this Lease is not terminated in accordance with the provisions of this Lease,
Tenant shall pay annual rent, without deduction, set-off, prior notice or demand, in the amount of
One Dollar($1.00)("Rent"). All Rent shall be due and payable on the first day of each Lease Year
throughout the Lease Term.
5.2. For purposes of this Lease, a "Lease Year" shall commence on April l and end on March 31
of the next year, but shall not extend beyond the termination date.
5.3. Utility Charges. Tenant shall be responsible for all utilities and services provided to Tenant at
the Property and agrees to pay,prior to delinquency,all charges for electricity,gas,water,sewage,
and/or all other public and private services or charges used by or through Tenant at the Property,
excluding any charges or services provided to or incurred by Landlord or its affiliates.
6. Use.
6.1. Permitted Use.Tenant shall use and occupy the Property only for(a)a public golf course,and
(b) such golf-related retail purposes (which may include the subleasing of property to other retail
businesses), including a potential golf entertainment venue, in each case as may be developed by
Tenant with Landlord's prior written consent and subject to,coning regulations, which consent will
not be unreasonably withheld or delayed, pursuant to separate development agreements
(collectively, the "Permitted Use").
6.2. Compliance with Laws.Tenant shall comply with all Laws now in force or that may hereafter
be in force with respect to the Tenant's use and occupancy of the Property.
6.3. Hazardous Materials. "Hazardous Materials" shall mean any matter (whether gaseous, liquid
or solid) which is now or hereafter designated as a hazardous or toxic waste or substance under
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC
9601,et seq., all as now or hereafter amended, or which may now or hereafter be regulated under
any other Law pertaining to health, industrial hygiene or the environment, including (a) any
asbestos and/or asbestos containing materials (collectively "ACMs") regardless of whether such
ACMs are in a friable or non-friable state; (b) any matter designated as a hazardous substance
pursuant to Section 311 of the Federal Water Pollution Control Act(33 USC 1317); (c) any matter
41 Le' �1Se AP,I' L'etlI ; 01
defined as a hazardous waste pursuant to Section 1004 of the Federal Resource Conservation and
Recovery Act, (42 USC 6901, et seq.) pertaining to health or the environment; and (d) petroleum
and petroleum products. "Hazardous Materials" shall not include ordinary cleaning and
maintenance products which are used with due care and in accordance with applicable Law and
the instructions of the manufacturer of such products in the reasonable and prudent conduct of the
business conducted on the Property.
6.3.1. Tenant shall not store, use, sell, release, generate or dispose of any Hazardous
Materials in, on or about the Property without the prior written consent of Landlord.
6.3.2. If, during the course of construction of Tenant's use or occupancy of the Property,
Tenant discovers Hazardous Materials on or beneath the Property, Tenant shall promptly
notify Landlord. Landlord shall pay the cost of remediation, monitoring and disposal of
any such Hazardous Materials.
6.4 Landlord shall have the right to reserve the Clubhouse for City events at least 12 days per
calendar year, at no expense to Landlord. Landlord must provide at least 30 days' notice prior to
reservation dates.
7. Alterations.
7.1 Tenant may make such alterations, additions and improvements to the Property or the
Improvements as are within the scope of Tenant's Work.
8. Maintenance of Premises.
8.1. Maintenance and Repair by Tenant. During the Lease Term,Tenant shall maintain the entirety
of the Property (including its principal components), including the Improvements (including the
roof, foundation, water, sewer and gas connections, pipes and mains, plumbing, heating and
ventilation, and electrical systems of the Improvements), in good, operational condition for the
conduct of Tenant's business at the Property, ordinary wear and tear, damage by eminent domain
and damage or destruction of the Property excepted. All repair work shall be done in a good and
workmanlike manner. Tenant shall not commit waste with respect to the Property.
8.1.1 Maintenance Bond. Tenant shall execute a Maintenance Bond in a minimum sum
of $6,000,000.00. The Bond shall be for one year from the completion of Project
Improvements,shall be payable to Landlord and on forms approved by Landlord,and shall
be executed by a corporate surety in accordance with Article 7.19-1 of the Texas Insurance
Code. It is agreed that this Lease shall not be in effect until such original Maintenance
Bond is delivered to and approved by Landlord. The bond shall be issued by a Texas
Department of Insurance approved surety company and be in effect.
8.2. Repairs by Landlord. Landlord shall not be responsible for maintaining, repairing, restoring
or replacing any part of the Property; provided, however, that Landlord, at its sole cost, shall be
responsible for maintaining, repairing, restoring or replacing,as necessary, any pipes, mains, taps,
meters or other facilities installed by Landlord for water, sanitary sewer or storm sewer service to
or from the Property.
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8.3. Surrender of Property. Upon expiration or earlier termination of this Lease, Tenant shall
surrender the Property to Landlord as set forth in Section 4.3. Upon such expiration or earlier
termination, Tenant may remove from the Property all of Tenant's furniture, equipment, trade
fixtures, signs, inventory and other personal property. Any of Tenant's personal property left on
the Property by Tenant for 90 days after expiration or earlier termination of this Lease shall
conclusively be considered abandoned, and Landlord will be entitled to use or dispose of such
property free of any interest of Tenant.
8.4 Golf Course Size. Over the Lease Term, Tenant shall not decrease the size of the golf course.
8.5. Annual Rounds Played. Within 30 days after the fifth anniversary of the Effective Date,Tenant
shall notify Landlord of the total number of rounds played on the golf course during each of the
first five Lease Years, and the numerical average (rounded to the nearest whole number) of such
five numbers (the "Average Annual Rounds Number"). During each of the remaining 35 Lease
Years, Tenant shall cause the number of rounds played during such Lease Year to be no less than
50% of the Average Annual Rounds Number.
9. Liens.
9.1.Tenant shall keep the Property free from any liens arising out of any work performed,materials
furnished or obligations incurred by Tenant. If any lien is filed against the Property as a result of
action or inaction of Tenant, Tenant, upon written demand by Landlord, shall obtain a release of
such lien,including by posting a bond in accordance with applicable Law,or posting other security
in form and amount acceptable to Landlord; provided, however, that Tenant may contest any lien
that it regards as improper or invalid, provided that it pursues such contest with due diligence.
9.2. Landlord hereby waives any "Landlord's" lien, whether statutory, contractual, implied or
otherwise, on Tenant's property.
10. Assignment and Subletting.
10.1.Transfers Prior to Completion of Tenant's Work. Sections 10.1.1 and 10.1.2 shall only apply
to Transfers(as defined below) occurring prior to completion of Tenant's Work.
10.1.I. Landlord's Right of Consent. Subject to Section 10.1.2, Tenant shall not transfer,
assign or sublet any part of this Lease or Tenant's interest in the Property (collectively,
"Transfer") without first obtaining Landlord's written consent, which shall not be
unreasonably withheld or delayed. Should Tenant desire to make a Transfer hereunder,
Tenant shall give Landlord 30 days prior written notice thereof("Transfer Notice"), which
shall (a) state that Tenant intends to Transfer the Lease as of a specific date (the "Transfer
Date"); (b) identify the proposed transferee; and (c) set forth all material terms and
conditions of the proposed Transfer. If Landlord fails to grant or deny its consent to such
Transfer within 30 days after its receipt of such Transfer Notice, Landlord shall be deemed
to have granted such consent.
10.1.2 Transfers to Tenant Affiliate. Notwithstanding Section 10.1.1, Tenant may make a
Transfer to a Tenant Affiliate without Landlord's consent. "Tenant Affiliate" means any
other Person directly or indirectly controlling, directly or indirectly controlled by or under
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direct or indirect common control with Tenant. As used in this definition, the terms
"control," "controlling,"or"controlled by"shall mean the possession,directly or indirectly,
of the power either to (a) vote fifty percent (50%) or more of the securities or interests
having ordinary voting power for the election of managers(or other comparable controlling
body) of Tenant or (b) direct or cause the direction of management or policies of Tenant,
whether through the ownership of voting securities or interests, by contract or otherwise,
excluding in each case any lender of Tenant or any affiliate of such lender. Tenant must
provide Landlord written notice of any transfer of interest at least 30 days prior to transfer.
Such notice shall include a statement detailing Tenant's control of Tenant Affiliate.
10.2. Requirements Applicable to all Transfers. This Section 10.2 shall apply to all Transfers
permitted by this Section 10, whether occurring(x) prior to completion of Tenant's Work(whether
by Landlord's consent or because the transferee is a Tenant Affiliate), or (y) after completion of
Tenant's Work. A Transfer shall not be valid or effective unless and until Tenant delivers to
Landlord (a) a copy of the executed assignment, sublease or other Transfer instrument; and (b) a
written agreement executed by the transferee, in form and substance reasonably satisfactory to
Landlord, pursuant to which, (i) in the case of an assignment, the assignee assumes all of the
obligations and liabilities of Tenant under this Lease, and (ii) in the case of a sublease or other
Transfer, the subtenant or other transferee agrees that such Transfer shall be subject to all of the
covenants, terms and conditions of this Lease. Without limiting the generality of clauses(b)(i)and
(b)(ii) of the foregoing sentence, the transferee shall expressly acknowledge and agree that it is
subject to the restrictions on the use of the Property set forth in the definition of"Permitted Use."
In addition, any sublease shall expressly provide that, in the event of a default by the subtenant.
the sublease may be directly enforced by Landlord if Tenant fails to exercise its enforcement rights
as sublandlord within 10 days after written notice from Landlord. Any Transfer other than as
permitted in this Section 10 shall be null and void.
10.3. Notwithstanding the above,acceptance of any payment of rent and other charges by Landlord
from any Person other than Tenant shall not be deemed a consent to a Transfer or a waiver of any
of Landlord's rights regarding any proposed Transfer hereunder.
10.4. Nothing in this Section 10 shall prohibit Tenant from entering into any franchise, license,
construction, concession, management, operation or similar agreement with any Person with
respect to the Property or Tenant's Work, or pledging, mortgaging, hypothecating or other
encumbering this Lease or Tenant's leasehold interest in the Property.
10.5 Any violation of the provisions of this Lease by any entity possessing an interest in the
Property from Tenant, or from a Tenant Affiliate, will be considered a violation by Tenant and
could be considered a Tenant default.
11.Insurance and Indemnity.
11.1. The insurance coverage herein shall, at a minimum, meet the following requirements:
11.1.1 Commercial General Liability
® General Aggregate: $2,000,000
■ Per Occurrence: $1,000,000
7 1 P L c t i v, N. A g; i c! E'' MT i 11 1
v Coverage shall be broad form COL
G� No coverage shall be deleted from standard policy without notification of
individual exclusions being attached for review and acceptance
El Waiver of Subrogation required.
t 1.1.2 Business Automobile Policy
■ Combined Single Limits: $1,000,000
■ Coverage for "Any Auto"
€'7 Waiver of Subrogation required.
11.1.3 Professional Liability
C] Limit: $1,000,000
n Claims-made form is acceptable
H Coverage will be in force for two (2) years after construction of the project
is completed.
11.1.4 Workers' Compensation
v Statutory Limits
11 Employer's Liability$1,000,000
13 Waiver of Subrogation required.
11.2 Prior to any work being performed on the site, the Tenant shall file with Landlord valid
certificates of insurance and endorsements acceptable to Landlord. Such certificates shall
contain a provision that coverage afforded under the policies will not be canceled,
suspended, voided, or reduced until at least 30 days prior written notice has been given to
Landlord via certified mail, return receipt requested.
11.3 The Tenant shall also file with Landlord valid certificates of insurance covering all
subconsultants.
11.4 The following are general requirements applicable to all policies:
➢ All liability policies shall have an AM Best Rating of A-: VII or better.
➢ Insurance carriers licensed and admitted to do business in State of Texas will be
accepted.
➢ Landlord, its officers, agents and employees are to be added as Additional Insureds to
all liability policies, with the exception of the Errors and Omissions Policy required
herein.
➢ Upon request of and without cost to City of Baytown, certified copies of all insurance
policies and/or certificates of insurance shall be furnished to City of Baytown's
representative. Certificates of insurance showing evidence of insurance coverage shall
be provided to City of Baytown's representative prior to any work being performed at
the site.
➢ Upon request of and without cost to City of Baytown, loss runs (claims listing) of any
and/or all insurance coverage shall be furnished to City of Baytown's representative.
11.5. Indemnification.
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11.5.1. TENANT AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND
DEFEND LANDLORD,ITS OFFICERS,AGENTS,AND EMPLOYEES (HEREINAFTER
REFERRED TO AS THE "LANDLORD PARTIES") FROM AND AGAINST ANY AND
ALL CLAIMS,LOSSES,DAMAGES,CAUSES OF ACTION,SUITS AND LIABILITY OF
EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND
ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE
TO ANY PROPERTY,OR FOR ANY BREACH OF CONTRACT,ARISING OUT OF OR
IN CONNECTION WITH THE SERVICES PERFORMED BY THE TENANT UNDER
THIS LEASE TO THE EXTENT CAUSED BY THE NEGLIGENCE OF TENANT. IN
THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST A
LANDLORD PARTY FROM WHICH SUCH LANDLORD PARTY IS INDEMNIFIED,
THE TENANT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE LANDLORD PARTY.
The indemnity provided hereinabove shall survive the termination and/or expiration of this
Agreement.
12.Tenant's Default.
12.1. Default. The occurrence of any one or more of the following events shall constitute a
"Default" under this Lease by Tenant.
12.1.1. Failure to Pay Rent.The failure by Tenant to pay Rent when due,where such failure
shall continue for a period of 14 days after written notice thereof by Landlord to Tenant.
12.1.2. Failure to Perform. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by the
Tenant,where such failure shall continue for a period of 30 days after written notice thereof
by Landlord to Tenant; provided, however, that if the nature of Tenant's Default is such
that more than 30 days are reasonably required for its cure,then Tenant shall not be deemed
to be in Default if Tenant commences such cure within said 30-day period and thereafter
diligently prosecutes and completes such cure within 120 days.
12.1.3. Bankruptcy. The making by Tenant of any general assignment or arrangement for
the benefit of creditors; or by the filing by or against Tenant of a petition to have Tenant
adjudged bankrupt; or a petition for reorganization or arrangement under any Law relating
to bankruptcy (unless, in the case of a petition filed against Tenant, the same is dismissed
within 60 days of filing);or the appointment of a trustee or a receiver to take possession of
substantially all of Tenant's assets located at the Property or of Tenant's interest in this
Lease, where such seizure is not discharged in 60 days after appointment of said trustee or
receiver,or the filing of the petition for the appointment of the same, whichever shall first
occur.
12.2. Landlord's Remedies for Tenant's Default.
9I
12.2.1. Upon the occurrence of a Default by Tenant under Section 12.1, Landlord shall
have the following rights and remedies:
12.2.1.1. To terminate this Lease and Tenant's right of possession of the Property
by giving notice of such election to Tenant, in which event Tenant shall
immediately surrender possession thereof to Landlord; or
12.2.1.2. To terminate Tenant's right of possession of the Property without
terminating this Lease by giving notice of such election to Tenant, in which event
(a) Tenant shall immediately surrender possession thereof to Landlord, failing
which Landlord may exercise the right of reentry, and (b) Landlord shall have the
right to occupy the Property for and on account of Tenant and to collect any unpaid
Rent and other charges which have or may thereafter become due and payable; or
12.2.1.3. To exercise the rights described above and thereafter elect to terminate
this Lease and all of Tenant's rights in or to the Property by giving notice of such
election to Tenant.
12.3. Remedies Cumulative — Waiver. Landlord's remedies hereunder are cumulative, and
Landlord's exercise of any right or remedy due to a Default by Tenant shall not be deemed a waiver
of, or to alter, affect or prejudice any right or remedy which Landlord may have under this Lease
or by Law.
13. Reconstruction. In the event any buildings or other substantial structures included in the
Improvements are damaged by fire or other perils, Tenant shall (i.e., using its reasonable best
efforts to accomplish the work in question with commercially reasonable promptness) repair,
restore and rebuild the same(or other structures more suitable to Tenant's then-intended use of the
Property), and this Lease shall remain in full force and effect. The portion of proceeds of any
insurance required to be maintained under Section 11.1 regarding the value of a Tenant
Improvement or other Tenant asset damaged or destroyed shall be delivered to Tenant if Tenant
undertakes such repair, restoration or rebuilding. Notwithstanding the foregoing, in the event of a
fire or other casualty occurring where there is: (a) damage to such buildings included in the
Improvements in such an amount that the use and occupancy of such buildings is materially
impaired, such that Tenant determines in its sole discretion to abandon the Property; or (b) there
is less than two years remaining in the Lease Term, Tenant shall have the right to terminate the
Lease effective as of the date of fire or other casualty by written notice to Landlord. If Tenant
elects to terminate this Lease under the preceding sentence,then Tenant shall demolish and remove
all debris from the Property within 120 days after Tenant's notice, and the proceeds of any
insurance required to be maintained under Section 11.1 shall be delivered to Landlord.
14.Holding Over. Unless otherwise agreed to by Landlord in writing,any holding over by Tenant
after the expiration of the Lease Term or earlier termination of this Lease, with or without
Landlord's consent, shall be construed to be a tenancy from month to-month with the Rent
applicable to the last full month during the Lease Term immediately prior to such holdover period.
Such holdover tenancy shall be subject to all of the terms and conditions set forth herein, to the
extent not inconsistent with a month-to-month tenancy.
10d a Le;) Ap, r eeinPnf.
15.Quiet Enjoyment. Subject to compliance with its covenants and obligations under this Lease,
Tenant shall have and quietly enjoy the Property for the Lease Term.
16. Miscellaneous.
16.1. No Partnership, Joint Venture. Nothing in this Lease shall be deemed or construed to create
a partnership or joint venture between Landlord and Tenant, or between Landlord and any other
Person; nor shall Tenant be deemed the Landlord's agent. Landlord shall not be liable for the debts
or obligations of Tenant or any other Pelson as a result of this Lease.
16.2. Successors or Assigns. All the terms, conditions, covenants and agreements of this Lease
shall extend to and be binding upon Landlord,Tenant and their respective successors and assigns,
and upon any Person coming into ownership or possession of any interest in the Property by
operation of law or otherwise, subject at all times, however, to all provisions and restrictions
elsewhere contained in this Lease respecting the assignment, transfer, encumbering, or subletting
of all or any part of the Property or Tenant's interest in this Lease.
16.3. Partial Invalidity. If any term, covenant or condition of this Lease or the application thereof
to any Person or circumstance is, to any extent, invalid or unenforceable, the remainder of this
Lease, or the application of such term, covenant or condition to Persons or circumstances other
than those a,, to which it is held invalid or unenforceable, shall not be affected thereby and each
term, covenant or condition of this Lease shall be valid and be enforced to the fullest extent
permitted by Law.
16.4. Recording. At Tenant's request, Landlord and Tenant shall execute, and Tenant shall record
in the Official Public Records of Real Property of Harris County, Texas, a memorandum of this
Lease describing the Parties, the Property, the Lease Term and any other provisions reasonably
required, shall incorporate this Lease by reference, and shall specify that any inconsistency
between the memorandum of lease and this Lease shall be resolved in favor of this Lease.
16.5. Notices. All notices and other communications hereunder shall be in writing and shall be
deemed given if(a) delivered personally, (b) sent by email, (c) mailed by registered or certified
mail(return receipt requested),or(d)sent by Federal Express or other recognized overnight courier
guaranteeing next Business Day delivery, to the parties at the following addresses or email
addresses:
Notices to Landlord:
City of Baytown,Texas
Attn: City Manager
2401 Market Street
Baytown,TX 77520
Email: CityManager@baytown.org
Notices to Tenant:
11 �
Build Baytown I, LLC
Attn: Rio Valeriano
P.O. Box 950
Lenoir City,TN 37771
Email: riovaleriano@gmail.com
with a copy to:
Cokinos ( Young
Attn: Philip M. Kinkaid
1221 Lamar Street, 16`h Floor
Houston,TX 77010
Email: pkinkaid@kinkaidlaw.com
Any of the above addresses or email addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice or change of address shall be effective
only upon receipt. All notices, requests or instructions given in accordance herewith shall be
deemed received on the date of delivery, if hand delivered; on the date sent by email (with
confirmation of transmission) if sent during normal business hours of the recipient,and on the next
Business Day if sent after normal business hours of the recipient on the date of receipt; two
Business Days after mailing, if mailed by registered or certified mail, return receipt requested;and
one Business Day after the date of sending, if sent by FedEx or other recognized overnight courier
for guaranteed overnight delivery.
16.6. Time. Time is of the essence of this Lease and each and all of its provisions in which
performance is a factor. All periods of time referred to herein shall include all calendar days,unless
the provision specifies Business Days; provided that if the date to perform any act or give any
notice shall fall on a day that is not a Business Day, such act or notice may be timely performed
or given on the next succeeding Business Day.
16.7. Amendments. This Lease may only be amended by an agreement in writing signed by both
Parties.
16.8. Force Majeure. This Lease and the obligations of either Party hereunder, other than
obligations to pay Rent or other sums of money, shall be excused if such Party is unable to fulfill
any of its obligations hereunder or is delayed in doing so, but only if such inability or delay is
caused by reason of strike, labor troubles, acts of God, hurricanes, tornadoes, floods, shortages of
labor or materials, war, terrorist acts,civil disturbances, pandemics, epidemics,or any other cause
beyond the reasonable control of the obligated Party; provided, however, such excused
performance shall only be for that period of time that the cause of such inability or delay shall
exist.
16.9. Choice of Law. This Lease, and all matters arising under or relating to this Lease, shall be
governed by and construed in accordance with the internal Laws of the State of Texas.
16.10. Broker's Commission. Each Party represents and warrants to the other Party that it has
incurred no liabilities or claims for brokerage commissions or finder's fees in connection with the
12
execution of this Lease,and that it has not dealt with and has no knowledge of any other real estate
broker, agent or salesperson involved in any way with this Lease. Landlord and Tenant agree to
indemnify, defend and hold each other harmless from all such liabilities or claims (including
attorneys' fees) arising out of any contractual or other obligation alleged to exist between the
indemnifying Party and any other real estate broker, agent or salesperson.
16.11. Interpretation; Definitions.
16.1 1.1. Each Party and its counsel have actively participated in the negotiation of this
Agreement. Consequently, the rule that ambiguous provisions of a contract should be
interpreted against their drafter Shall not apply to this Agreement.
16.1 1.2. As used in this Agreement:
(a) "Business Day" means any day other than a Saturday, Sunday, or national
holiday.
(b) "Governmental Authority" means a federal, state, local or foreign
government or governmental subdivision, agency, court, department,
commission, board, bureau, or other instrumentality.
(c) "including" means "including without limitation", and its grammatical
derivatives have equivalent meanings.
(d) "Law" means a statute, law, code, constitution, treaty, rule, regulation,
ordinance, common law, or other requirement or rule of law of a
Governmental Authority.
(e) "Permit" means a permit, license, approval, authorization or similar
approval issued by an applicable Governmental Authority.
(f) "Person" means (i) an individual; (ii) a limited liability company,
corporation, partnership, limited partnership, business trust, trust, estate,
association, or other entity, or a series of an entity; or (iii) a Governmental
Authority.
(g) "Proceeding" means (i) a lawsuit, action, investigation, litigation, or other
proceeding by or before any court or other Governmental Authority,
whether at law or in equity, and whether civil, criminal, administrative, in
bankruptcy or otherwise; or (ii) an arbitration proceeding.
16.12. Dispute Resolution;Exclusive Venue;Waiver of Jury Trial.If a dispute between the Parties
arises out of or is related to this Agreement, or the breach of this Agreement, and if the dispute
cannot be settled through direct discussions, the Parties may agree to first endeavor to settle the
dispute in an amicable manner by mediation under the Commercial Mediation Rules of the
American Arbitration Association.
13
16.13. Execution by Tenant and Landlord. No contractual or other rights shall exist or be created
between Landlord and Tenant until all Parties have executed this Lease and fully executed copies
have been delivered to Landlord and Tenant. This Lease may be executed in counterparts,
including executed counterparts exchanged by email or other electronic means.
[Signature Page Follows]
14 1
IN WITNESS WHEREOF, the Parties have executed this Lease as of the Effective Date.
LANDLORD:
CITY OF BAYTOWN,TEXAS, a municipal corporation
BY:
RICHARD L. DAVIS,
City Manager
ATTEST:
ANGELA JACKSON
City Clerk
APPROVED AS TO FORM:
TREVOR FANNING
Interim City Attorney
TENANT:
BUILD LLC, a Texas limited liability company
By:
AURELI R. VALERIANO
Manager
151
EXHIBIT A
LEGAL DESCRIPTIONS OF LAND AND OPTION TRACT
The"Land,"and the "Option Tract"consist of the following respective portions of the land situated
in the William Scott Lower League, Abstract 65, Harris County,Texas, conveyed to Landlord by
Texas Capital Development Corporation, Inc. pursuant to that certain Warranty Deed, dated
February 2,2016 and recorded on February 4,2016 under County Clerk's File No. RP-2016-47903
in the Official Public Records of Real Property of Harris County,Texas (the "Vesting Deed"):
Land
The "Land" consists of-
(a) that certain tract of land, consisting of 105.7326 acres, designated as "Tract
I" in the Vesting Deed, and being described on Exhibit A to the Vesting
Deed ("Initial Tract I");
(b) LESS AND EXCEPT, however, the Option Tract (as described below).
Option Tract
The "Option Tract" consists of the following portions of Initial Tract I:
(a) that certain 0.3644 acre parcel over which Texas Capital Development
Corporation, Inc. reserved a perpetual, non-exclusive easement in the
Vesting Deed for certain roadway, utility and drainage improvement
purposes, said 0.3644 acre parcel being designated as the "Easement Area"
in the Vesting Deed,and being described on Exhibit C to the Vesting Deed;
and
(b) that portion of Initial Tract I that lies northeasterly of said 0.3644 acre
"Easement Area."
Exhibit"A"--Page Solo
EXHIBIT B
DEPICTION OF LAND AND OPTION TRACT
The Land and the Option Tract are depicted on the following page (the "Depiction"), which is a
survey map prepared soon before Landlord acquired such land pursuant to the Vesting Deed (as
defined in Exhibit A to this Lease).
There are relatively small discrepancies between the Depiction and the Vesting Deed in the metes-
and-bounds calls for a small number of boundary-line segments. The affected segments are
indicated on the Depiction. There are also very small discrepancies between the Depiction and the
Vesting Deed in certain acreage calculations. None of these acreage discrepancies is greater than
0.2 acres.
Notations on the Depiction regarding "Tract II," shown as consisting of 12.5430 acres, are not
relevant and Should be ignored.
[See following page]
Exhibit "B" -- Page I
EXHIBIT C
PROJECT IMPROVEMENTS AND PROJECT IMPROVEMENTS WORK
This property development shall be for an 18 hole golf course located at 1530 Evergreen Road,
Baytown,Texas.
The course shall exceed 6,200 yards and include new/improved water features,and incorporate the
existing clubhouse into the new development.
The golf course will have the ability to route 18 holes of golf without sacrificing the integrity of
the game within the limits of the Landlord survey as demonstrated in Exhibit B of the request for
proposals.
The following course features shall be a part of the development:
At least two holes on the front nine holes and at least two holes along the back nine holes
as true Par 5 holes
• Remaining holes to be blended into 3,4 and 5 par holes
Design to include rough and fine grading
• Soil amendments
New irrigation
Water features
• Landscape design
Bunkers
• Course seeding
Landscape work
In addition to the course features, Tenant shall design score cards in accordance with the options
provided in the designer's proposal.
The Golf Course Architect (GCA) will be provided with copies of the current plans which will, at
a minimum, include the following:
AutoCAD compatible files showing existing conditions
Existing golf course layout and grading plans
• Existing golf cart path plan
All golf course plans will be AutoCAD compatible. Landlord anticipates that the GCA will utilize
the plans provided with the understanding that the boundaries, water storage volumes and certain
other design elements are subject to change.
Changes to golf course grading,sizes,and shapes of golf features (greens,tees,bunkers, fairways,
etc.), cart path routing, tree planting, etc., are acceptable. Tenant shall provide a complete set of
plans (digital), specifications and construction schedule prior to the Notice to Proceed given by
Landlord. The final plan set shall include, at a minimum, grading plans, grassing plan, cart path
plan, tree planting plan and a complete course irrigation plan.
Exhibit"C" Page 1
Landlord will be providing design and engineering for some infrastructure improvements to the
site. The GCA (and sub-consultants, if used) will be responsible for the design from the new
infrastructure to the entire new development. The irrigation plans and documents must be designed
to allow competitive pricing from Rain Bird,Toro and comparable vendors. The irrigation system
is required to be satellite controlled.
The development team and the GCA shall provide certain Construction Administration services
throughout the construction period. Site visits should include the completion and distribution of
notes summarizing the visit and indicating any discussion of changes, or potential changes to the
scope of work.
The irrigation system field layout services shall include GPS locations for all heads, valves, and
other components, staked or flagged. A detailed "as-built" of the system will be provided to
Landlord upon project completion.
A final walk-thru and punch list for the golf course and irrigation system shall be completed and
submitted to Landlord for final approval and prior to opening to the public.
Exhibit "C" -Page 2