Ordinance No. 15,749ORDINANCE NO. 15,749
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE
CITY CLERK TO ATTEST TO THE FIFTH AMENDMENT TO THE LEASE OF
PREMISES WITH SOLID WASTE, LTD. INC.; MAKING OTHER PROVISIONS
RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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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 authorizes and directs the
City Manager to execute and the City Clerk to attest to the Fifth Amendment to the Lease of Premises with
Solid Waste, Ltd. Inc. A copy of said amendment is attached hereto, marked Exhibit "A," and made a part
hereof for all intents andpurposes.
Section 2: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown, to include the entire month of February.
INTRODUCED, READ, and PASSED by the affrnnative vote of the City Council of the City of
Baytown this the 14"' day of March, 2024.
BRANDON CAPETILLO, Mayor
ATTEST:
i
ANGELA JACKSON,'City Clerk
SCOTT LEMOND, City Attorney
R: Scott Ordinances 24-03-14 Fifth Amendment -Marina Lease -Solid Waste Ltd.docx
EXHIBIT "A"
FIFTH AMENDMENT
TO THE LEASE OF PREMISES
BETWEEN
THE CITY OF BAYTOWN
AND
SOLID WASTE, LTD. INC.
STATE OF TEXAS
KNOWN BY THESE PRESENTS:
COUNTY OF HARRIS
This Fifth Amendment to the Lease of Premises ("Fifth Amendment"), is made by and between the
City of Baytown, a home -rule municipal corporation, located in Harris and Chambers Counties, Texas
("Lessor"), and Solid Waste, Ltd. Inc., a Texas corporation, ("Lessee") on the date hereinafter last specified.
WITNESSETH:
WHEREAS, on February 4, 2002, the City entered into a Lease of Premises Agreement (the
"Lease") with Solid Waste, Ltd. Inc. ("Lessee") for the lease and operation of the Harbor Master Facility
located on a portion of Bayland Island; and
WHEREAS, Lessee exercised its right to extend the Lease for the first five-year option period,
which commenced February 4, 2005; and
WHEREAS, thereafter on January 24, 2008, Lessee exercised its right to extend the Lease for the
second five-year option period, which commenced February 4, 2010; and
WHEREAS, on the 19'' day of March, 2012, the parties amended the Lease to update the rental
payments due to reflect the consumer price index (urban) increases occurring during the time the Lease
payments were suspended due to damages caused by Hurricane Ike ("First Amendment"); and
WHEREAS, thereafter, Lessee exercised its right to extend the Lease for the Fourth and final five-
year option period, which commenced the 4" day of February, 2015; and
WHEREAS, on December 12, 2019, the parties entered an amendment to the Lease to extend the
term of the lease until the 41 day of February, 2022 (the "Second Amendment"); and
WHEREAS, on January 18, 2022, the parties entered an amendment to the Lease to extend the term
of the lease until the 31 day of February, 2023 (the "Third Amendment"); and
WHEREAS, on February 23, 2023, the parties entered an amendment to the Lease to extend the
term of the lease until the 2"1 day of February, 2024 (the "Fourth Amendment"): and
WHEREAS, the parties desire to amend Lease to extend the term of the same for another year;
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, the parties hereto do hereby mutually agree as follows:
Interpretation. Unless a different meaning clearly appears from the context, words and phrases as
used in this Fourth Amendment shall have the same meanings as in the Lease, the First Amendment,
the Second Amendment, the Third Amendment, and the Fourth amendment.
Fifth Amendment, Page 1
Amendments.
a. Article 2 "Term and Rental," Section 2.02 "Option Period" of the Lease is hereby amended
to read as follows:
2.02 Option Period. Provided Lessee has met all of the obligations of this lease,
the Lessee has the right to extend the Term for an additional period of five
(5) years. if the Lessee elects to extend the Term for the first additional
period of five (5) years and if Lessee has met all of the obligations of this
Lease, the Lessee may also elect to extend the Term for a second additional
period of five (5) years immediately following the first additional period.
If the Lessee elects to extend the Term for the second additional period of
five (5) years and if Lessee has met all of the obligations of this Lease, the
Lessee may also elect to extend the Term for a Fourth additional period of
five (5) years immediately following the second additional period.
Thereafter, the Term shall be extended automatically until February
3,2025.
b. Article 2 "Term and Rental," Section 2.04 "Rental Payments" of the Lease is hereby
amended to read as follows:
2.04. Rental Payments.
(1) January 1. 2003 — December 3 1. 2004. Starting on January 1. 2003, and
continuing through December 31, 2004, Lessee agrees to pay Lessor rent
in monthly payments as follows:
January 1, 2002................................................................................. $1.00
February1,2002................................................................................
$1.00
March1,2002....................................................................................
$1.00
April1, 2002.....................................................................................
$1.00
May1,2002................................................................................$1,000.00
June 1,2002................................................................................
$1,000.00
JulyI, 2002................................................................................
$1,000.00
August1,2002............................................................................
$2,000.00
September 1, 2002.....................................................................
$2,000.00
October 1, 2002.........................................................................
$2,000.00
November1, 2002.....................................................................
$2,000.00
December 1, 2002, and the first of each subsequent month through
December 1, 2003, the monthly base rent shall be $3,000.00 per month.
(2) January 1. 2004 — August 30. 2008. Starting January 1, 2004, through
August 30, 2008, all rent shall be increased yearly by an applicable CPI
adjustment. The first CP1 adjustment shall be calculated based upon the
base rent due on January 1, 2004, and increased by (i) the Consumer Price
Index (Urban) of the twelve months prior to January 1, 2004, or (ii) 12.5%,
whichever is less. The base rent shall again be increased each year
thereafter based upon the base rent due the then previous year and either
(i) the Consumer Price Index (Urban) of the twelve months prior to the
Fifth Amendment. Page 2
five-year anniversary date or (ii) 12.5%, whichever is less. The total CPI
increase in any five year (5) term shall not exceed 12.5%.
(3) September 1, 2008 — March 31, 2012. Starting September 1, 2008, to
March 31, 2012, there shall be no rental payment due under this section.
(4) April 1. 2012 — March 1, 2013. For one year commencing on April 1,
2012, Lessee agrees to pay Lessor rent in monthly payments as follows:
April1, 2012..................................................................................... 51.00
May1. 2012 ......................................................................................
S 1.00
June1, 2012 ......................................................................................
$1.00
JulyI, 2002.......................................................................................
S1.00
August 1, 2012............................$3,905
x (# Occupied Slips/Total Slips)
September 1, 2012 ......................$3,905
x (# Occupied Slips/Total Slips)
October 1. 2012 ..........................$3,905
x (# Occupied Slips/Total Slips)
November I, 2012 ......................$3,905
x (# Occupied Slips/Total Slips)
December 1, 2012 ........................$3,905
x (# Occupied Slips/Total Slips)
January 1, 2013............................$3,905
x (# Occupied Slips/Total Slips)
February 1, 2013..........................$3,905
x (# Occupied Slips/Total Slips)
March 1, 2013..............................$3,905
x (# Occupied Slips/Total Slips)
As used in the above -referenced formula, the number of occupied slips
shall be determined on the last day of the previous month.
(5) April 1. 2013 — March 1, 2014. For one year commencing on April 1,
2013, Lessee agrees to pay Lessor rent in monthly payments as follows:
$3,905 x ((# Occupied Slips X 2) /Total Slips);
provided that, once at least half of the slips are occupied, Lessee agrees to
pay Lessor $3,905 per month as rent, regardless if occupancy falls below
50% thereafter.
As used in the above -referenced formula, the number of occupied slips
shall be determined on the last day of the previous month.
(6) April 1, 2014 — March 3,2025. From and after April 1, 2014, Lessee agrees
to pay Lessor $3,905 per month as rent.
From and after April 1, 2013, all rent shall be increased yearly by an applicable
CPI adjustment. The first CPI adjustment shall be calculated based upon the base
rent due on April 1, 2013, and increased by (i) the Consumer Price Index (Urban)
of the twelve months prior to April 1, 2013, or (ii) 12.5%, whichever is less. The
base rent shall again be increased each year thereafter based upon the base rent due
the then previous year and either (i) the Consumer Price Index (Urban) of the
twelve months prior to the five-year anniversary date or (ii) 12.5%, whichever is
less. The total CPI increase in any five-year (5) term shall not exceed 12.5%.
Article 2 "Tenn and Rental," Section 2.05 "Rental Payments" of the Lease is hereby
amended to read as follows:
Fifth Amendment. Page 3
2.05. Additional Rent.
(1) January 1, 2003 — December 31. 2004. Starting on January 1, 2003, and
continuing through December 31, 2004, as additional rent, Lessee shall
pay Lessor 5% of monthly gross revenues according to the formula below,
which additional rent shall be paid monthly within 45 calendar days after
the end of the month. Such additional rent shall be calculated as follows:
Additional Rent - 5% x (Monthly Gross Revenues - (Base Rent/.05))
By way of example:
➢ If monthly gross revenues in July of 2003 are $40,000 then
additional rent would be $0.00.
.05 x (40,000-(3,000/.05)) = .05 x (40,000-60,000) _
.05 x-20,000 = -1000
therefore no additional rent due.
➢ If monthly gross revenues in July of 2003 are $75,000 then
additional rent would be S500.00.
.05 x (75,000-(3,000/.051)- .05 x (75,000-60,000) —
.05 x 10,000 = 500
therefore $500.00 in additional rent would be due.
If the above -referenced formula yields a negative product no additional
rent shall be due. Total monthly rent shall not exceed $5,000.00 per
month.
(2) January 1. 2005 — August 30. 2008. Starting on January 1, 2005, and
continuing through August 30, 2008, as additional rent, Lessee shall pay
Lessor 5% of monthly gross revenues according to the formula below
which additional rent shall be paid monthly within 45 calendar days after
the end of the month. Such additional rent shall be calculated as follows:
Additional Rent =
5% x (Monthly Gross Revenues - (Base Rent/.05))
If the above -referenced formula yields a negative product, no additional
rent shall be due.
(3) September 1. 2008 - March 31. 2012. Starting September 1, 2008, to
March 31, 2012, there shall be no additional rent due under this section.
(4) Starting on April 1, 2012, and continuing through March 3, 2025, as
additional rent, Lessee shall pay Lessor 5% of monthly gross revenues
according to the formula below which additional rent shall be paid
Fifth Amendment, Page 4
monthly within 45 calendar days after the end of the month. Such
additional rent shall be calculated as follows:
Additional Rent =
5% x (Monthly Gross Revenues - (Base Rent/.05))
If the above -referenced formula yields a negative product no additional
rent shall be due.
"Gross Revenues" as used in this section shall mean all amounts received from
whatever sources which are received in connection with the operation of the
Premises Improvements subject to offsets only for refunds, credit card company
fee charges, employee discounts and sales tax. Lessee shall deliver to Lessor by
the 15th of each month, a report in a format approved by the City Manager the
gross revenues of the previous month. Said report shall contain the basis for the
payment and an affidavit from an officer of the Lessee verifying that all of the
information on the submitted report is true and correct. Lessee must keep such
reports and the supporting documentation therefore for at least 4 years.
Lessor shall have the right at any time to audit any and all of the books and records
which in any way relate to gross revenues or the calculation of additional rent to
be paid to Lessor. Lessee shall make all of these records readily available for the
examination within ten days of a request therefore. If any audit by Lessor shows a
deficiency in the amount of additional rent paid to Lessor by more than five percent
(5%), then the cost of the audit shall be paid by Lessee. The additional rent due
and the cost of the audit shall be paid within 10 days' written notice of such
deficiency and the cost of the audit.
Interaretation. The provisions of this Fourth Amendment and the provisions of the First
Amendment and the provisions of the Lease should be read together and construed as one
agreement provided that, in the event of any conflict or inconsistency between the provisions
therein, the order of priority of documents shall be this Fourth Amendment, the First Amendment
and then the Lease. Nothing contained in this Fourth Amendment or in the First Amendment or
the Lease shall be construed in any way to limit or to waive the City's sovereign immunity.
4. Non -Waiver: Release. By this Amendment, the City does not consent to litigation or suit, and the
City hereby expressly revokes any consent to litigation that it may have granted by the terms of this
Agreement or any other contract or agreement, any charter, or applicable state law. Lessee hereby
releases, relinquishes and discharges the City, its officers, agents, and employees from all claims,
demands, and causes of action of every kind and character, including the cost of defense thereof,
for any injury to or death of any person (whether they be either of the parties hereto, their
employees, or other Fourth parties) and any loss of or damage to property (whether the property be
that of either of the parties hereto, their employees, or other Fourth parties) that is caused by or
alleged to be caused by, arising out of, or in connection with this Amendment regardless of whether
said claims, demands, and causes of action are covered in whole or in part by insurance.
5. Authority. The officers executing this Agreement on behalf of the parties hereby confirm that such
officers have full authority to execute this Agreement and to bind the party he/she represents.
6. Effective Date. The effective date of this Amendment shall be on the date this Fourth Amendment
is signed by the City Manager.
Fifth Amendment. Page 5
IN WITNESS HEREOF, the parties lime executed this agreement in duplicate originals at
Bit toH n, I larris County. Texas.
CITY Oh BAYTOWN
JASON E. REYNOLDS, City Manager
DATE
A ['TEST:
ANGFLA JACKSON. Citv C'Icrk
APPROVED AS -I"0 FOIZM:
SCOTT LEMOND, City Attorney
SOLID WASTE. LTD. I C.
S'gnaturc
(ki-od
Pri tcd Name
' 4e-s-, 6�� V-' J
Title
Fifth Amendment. Page 6
STATE- OF TEXAS
COUNTY OF l IARRIS
Before un�,,i, ned notary public, on this day personally
appeared the of SOLID WASTE, LTD. INC., on
behalf of such linlited pal•tnership
✓ kno« n to rne.
proved to n1c on the oath of ; or
proved to 111e through his/her current
,description of idencation card or other document issued by the federal government or
any state government that contains the photograph and signature of the ackno"ledging
person j
(check one)
to he the person whose nar11c IS subscribed to the foregoing 111YIrt1111CIlt, and acknowledged to 111C that he she
i wcutcd that Instrument for the purposes and cons ideratiol therein expressed. ,,/
(_ii\en under my hand and seal ol'office this _day of �-)o;4X/
.�p10111��, SYLVIA AGUILAR
11-�'°L; Notary Public. State of Texas
Comm. Expires 11.07.2026
,OF.%;`,, Notary ID 472065-3
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I•rfth Amendment. Pace 7