Ordinance No. 7,387950914 -1
ORDINANCE NO. .7387
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
® TEXAS, APPROVING THE PROPOSAL AND AUTHORIZING AND
DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO
ATTEST TO A FINANCING AGREEMENT WITH CITIZENS BANK AND
TRUST COMPANY OF BAYTOWN, TEXAS, FOR THE BAYLAND PARK
PROJECT; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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 approves the proposal and authorizes and directs the
Mayor and City Clerk of the City of Baytown to execute and attest
to a Financing Agreement with Citizens Bank and Trust Company of
Baytown, Texas, for the Bayland Park Project. A copy of said
agreement is attached hereto, marked Exhibit "A," and made a part
hereof for all intents and purposes.
Section 2: 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 Council of the City of Baytown this the 14th day of September,
1995.
A& c.
PETE C. ALFAIRO, Mayor
ATTEST:
EILEEN -�P . HALL, City Clerk
APPROVED AS TO FORM:
NACIO RAMIREZ, ., City Attorney
9 Iegalkou nciUseptember /9- 14- 95authAG REEcitizens
•
•
M. .;
$1,800,000.00
Baytown, Texas
September 14, 1995
IN SEMI= ANNUAL INSTALLMENTS,_ as hereinafter set forth, for
value received, the undersigned promises to pay to the order of
CITIZENS BANK AND TRUST COMPANY OF BAYTOWN, TEXAS, at its offices
at 1300 Rollingbrook, Baytown, Texas 77521, or at such other
place as Payee may from time to time designate in writing, the
sum of ONE MILLION EIGHT HUNDRED THOUSAND AND NO /loo
($1,800,000.00) DOLLARS, together with interest thereon as
hereinafter provided. Each anniversary of this note shall be a
Change Date, that is, the-date on which the interest rate and
payment amount could change.
The unpaid balance of this note, together with interest
accrued thereon, is due and payable in semi- annual installments
due on March 14th and September 14th of each calendar year,
beginning March 14, 1996, and continuing with a semi- annual
installment of principal and interest due on each September 14th
and March 14th thereafter through March 14, 2010, and on
September 14, 2010, the entire remaining balance of this note,
principal and interest, will be due and payable in full.
The unpaid balance of this note shall bear interest at the
initial rate of 7.25% per annum, and the principal and interest
shall initially be naid_in„_semi- annual installments of $99,432.26
each; the first installment of $99,432.26 is due and payable on
March 14, 1996, and an additional installment of $99,432.26 is
due and payable on September 14, 1996.
Beginning with the first Change Date and each Change Date
thereafter, the rate of interest on the unpaid balance of this
note will be the interest rate designated by the United States
Treasury Department as the One Year Constant Maturity Treasury
Rate plus one and one -half percent (1 -1 /2Y) per annum, which rate
shall be the rate of interest until the next Change Date. Should
the Change Date be a holiday, the rate of interest shall be
calculated based on the rate on the prior business day. If the
United States Treasury Department no longer publishes the One
Year Constant Maturity Treasury Rate, a new index will be chosen
by the Payee that is a similar benchmark as per industry
standards. The new interest rate will become effective on each
Change Date. Notwithstandi•ng,ithe, foregoing, the rate of interest
charged on the outstanding balance of this promissory note during
the first ten (lo) years of the term shall not be more than 8%
per annum nor 'less than 7.25% per annum. All sums due hereunder
not paid as and when due shall bear interest from due date at the
rate of 12% per annum.
The new 'semi- annual payment will be the amount that would be
sufficient to repay the unpaid principal at the Change Date in
full on the maturity date of this note at the new interest rate.
The new semi- annual payment will be paid starting with the first
semi - annual payment due date after the Change Date.
All semi- annual payments provided for herein shall first be
applied to the payment of interest accrued, and the balance of
each payment shall be applied to the payment of principal.
(Page 1 of 3 Pages)
UHIBIT A
® Interest charges will be calculated on amounts advanced
hereunder on the actual number of days said amounts are
outstanding on the basis of the actual number of days elapsed
over a year composed of three hundred sixty (360) days. It is
the intention of Maker and Payee to conform strictly to the usury
laws in force in the State of Texas and the United States of
America. It is therefore agreed that (i) in the event that the
maturity hereof is accelerated by reason of an election by Payee,
or if the same,dt6m,.prepaid,.prior, to maturity, all unearned
interest shall be cancelled automatically, or if theretofore
paid, shall either be refunded to the Maker or credited on the
unpaid principal amount of this Note, whichever remedy is chosen
by Payee, .(ii) the aggregate of all interest and other charges
constituting interest under applicable law and contracted for,
chargeable or receivable under this Note, or otherwise in
connection with this loan transaction shall never exceed the
maximum amount of interest nor produce a rate in excess of the
maximum rate of interest that Payee may charge Maker under
applicable law and in regard to which the Maker may not
successfully assert the claim or defense of usury, and (iii) if
any excess interest is provided for, it shall be deemed a mistake
and the.same shall either be refunded to Maker or credited on the
unpaid-principal amount hereof, and this Note shall be
automatically deemed reformed so as to permit only the collection
of the maximum non - usurious rate and amount of interest allowed
by applicable law. All sums paid or agreed to be paid to the
holder or holders hereof for the use, forbearance or detention of
the indebtedness evidenced hereby shall, to the full extent
permitted by applicable law, be amortized, prorated, allocated
and spread through the full.-term-of this Note.
Maker reserves the privilege to prepay, in whole or in part,
the unpaid principal balance of this note, plus accrued interest,
at any time and from time to time without penalty, but such
prepayments shall be applied as a credit against the last
maturing installment or installments of principal due hereunder
and shall not operate to defer or otherwise postpone the regular
obligatory installments of principal payable hereunder.
Payment of this note is secured by one or more Security
Agreements of even date herewith, executed by the undersigned in
favor of CITIZENS BANK AND TRUST COMPANY OF BAYTOWN, TEXAS,
covering those certain assets as set out in said Security
Agreements.
Subject to the notice provision hereinafter contained, the
Maker of this'note waives demand, presentment for payment, notice
of non-payment, 'protest,' notice of protest, notice of intent to
accelerate, notice of the exercise of option to accelerate,
filing of suit, and diligence 'in 'Collecting this note or
enforcing any security herefor, and consents and agrees that the
tima of payment hereof may be extended from time to time without
notice.
Failure to pay any installment of this note, either
principal or interest, as and when the same is or becomes due
and payable hereunder, or in the event of default of Maker in any
of the terms, provisions, or conditions of any instrument
executed or to be executed by Maker as security for the payment
hereof, and such default shall continue for a period of ten (10)
days after written notice to Maker of such default, shall at the
election of the'Holder hereof, "mature this note, and the liens
securing payment hereof shall become subject to foreclosure
proceedings.
• (Page 2 of 3 Pages)
Ll
If this note is not paid as and when due and is placed in
the hands of an attorney for collection or is collected through
the Probate, Bankruptcy or other court, the undersigned promises
to pay fifteen percent additional on the amount of principal and
interest then due hereon as attorney's fees.
ATTEST:
THE CITY OF BAYTOWN, a municipal
corporation
i .ee.�wr► ri w.:► w.M�.w.w�,..a ...
By:
City Secretary
!KT
• (Page 3 of 3 Pages)
Mayor
LEASE AND RENTAL AS21QNMENT
• AND SECURIIX AGREEKENT
THE STATE OF TEXAS X
X KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF HARRIS;- - -'•,X' -' . -
THAT THE CITY OF BAYTOWN, a municipal corporation, of the
County of Harris in the State of Texas, hereinafter called
"Assignor" (whether one or more), for a valuable consideration
paid by CITIZENS BANK AND TRUST COMPANY OF BAYTOWN, TEXAS, a
State bar0king corporation, of the County of Harris in the State
of Texas, hereinafter called "Assignee ", the receipt and
sufficiency of which is hereby acknowledged, and for the purpose
of securing Assignee in the payment of that certain indebtedness
evidenced by that one certain promissory note in the original
principal sum of $1,800,000.00, dated September 14, 1995,
executed by THE CITY OF BAYTOWN, and payable to the order of
CITIZENS BANK--AND TRUST, COMPANY40F BAYTOWN, TEXAS, does hereby
assign and transfer unto Assignee and grant to Assignee a
security interest in all leases and rental contracts which have
been and which may hereafter be executed covering all or any part
of the real property'described in said leases and rental
contracts, together with all rentals and income accruing
therefrom, and particularly the following described lease or
leases which constitute all the leases covering said property or
I 4 1 I
any part thereof that are now`-in-:full force and effect, to -wit:
Lease dated September 14, 1995, by and between THE CITY
OF BAYTOWN;'a municipal corporation, as Lessor, and
NINFA'S OF BAYTOWN, INC.', as Lessee, covering buildings
to be constructed situated in the Bayland Harbor
Development, such buildings outlined in zed on the
attached plat.
Assignor warrants, represents and agrees that:
1. Said lease or leases are valid and in full force and
effect according to'their terms; that no change,
modification or amendment thereof has been made; that
no prior assignment thereof has been made and that no
assignment of any of the rental and income from said
above described property has been made; and that no
financing statement covering said lease or leases or
the property above described is on file in any public
office. •
• 2. Assignor shall not, without the prior written consent
of Assignee, make or agree to any change, modification
or amendment in or termination of any lease covering
said property, shall not exercise any option contained
in any lease or take action to forfeit the same, and
shall not collect or accept payment of any rental for
more than one month, in advance, except as may be
regdirti -d' o be paieii1 'advance by the express terms of
such lease.
3. Assignor shall (a) perform all of the obligations and
duties of lessors under all leases covered hereby; (b)
promptly inform Assignee in writing of notice received
from any lessee with respect to any obligation under
the lease or of any default or claimed default by any
party to the lease; and (c) keep accurate books,
records and accounts with respect to the leases and
make them available to Assignee at its request for
examination and inspection.
As often and whenever a default occurs in the payment of
said note above described or in the performance of any covenant
contained in any document or agreement securing payment of said
promissory note herein and as long as such default continues,
Assignee is hereby authorized to exercise all rights of the
Lessor under the terms of said lease or leases, including the
-- - - ... ..... -.
right to collect and receive all rents and income accruing from
said property and give good and sufficient receipts for the same.
All money so collected, except as otherwise provided herein,
shall be applied, after payment of Assignee's expense of
collection thereof, including reasonable attorney's fees, to make
good any default in the payment of said note or to the payment of
taxes assessed against the above described property or to the
payment of premiums on- 'insurance 'policiea covering improvements,
if any, situated,on• the leased-premises-
Assignee shal`1'-have the additional right and authority in
the event of default as aforesaid, but shall not be obligated to:
1. Make and enter into agreements with lessees and
tenants, increase or reduce rentals or otherwise change
the terms of any lease or rental contracts; enter into
now leases or rental contracts, in the name of Assignor
or otherwise, on such terms and conditions as Assignee
may deem advisable.
2. Sue for the collection of unpaid rents and other
income,'for cancellation or forfeiture of any lease or
rental contract In default, for possession of said
promises, and all appropriate rights and remedies in
connection therewith.
0
Assignee may from time to time waive its right to collect
such rents and income, but such waiver shall not prejudice its
right thereafter to collect same. Assignee shall never be held
liable for failure to collect rent or other income, but shall be
held accountable for funds actually received.
Assignor agrees that the collection of such rentals and
income by Assignee shall in no way relieve Assignor from any of
the obligations imposed upon Assignor by said note and any other
security document, and shall not constitute a waiver of
Assignee's right to accelerate the maturity of said indebtedness
nor of Assignee's right to proceed with the enforcement of said
rights under any security instrument, in the event default is
made in the payment of said note or any part thereof or in the
event of the breach of any of the covenants contained in any
instrument securing payment of said promissory note, or herein,
the purpose of this instrument being to give Assignee the right,
if it so desires, prior to and during foreclosure, to collect
such rentals and income and after paying all collection expense,
to apply the same as far as same will go toward making good any
default. Neither the acceptance of this assignment by the
Assignee nor any act of Assignee hereunder shall be construed as
a waiver of the priority of any lien securing the said note.
This agreement shall be binding upon and shall inure to the
benefit of the 'lega'1''representatives, heirs, successors and
assigns, respectively, of''the'Assignor and Assignee; and shall
terminate and 'become nu-11 and-void upon full and final payment of
the note secured'hereby.- ' '
EXECUTED',' this 14th' day 'o €' September, 1995.
THE CITY OF BAYTOWN, a municipal
corporation
ATTEST:
By:
City Secretary
Mayor
• CITIZENS BANK AND TRUST COMPANY OF
BAYTOWN, TEXAS
ATTEST:
By:
THE STATE OF TEXAS X
X
COUNTY OF HARRIS X
This instrument was acknowledged before me on the
day of , 1995, by
of THE CITY OF BAYTOWN, a municipal
corporation, on behalf of said corporation.
NOTARY PUBLIC, STATE OF TEXAS
THE STATE OF TEXAS X
COUNTY OF HARRIS X
This instrument was acknowledged before me on the
day of 1995, by
of CITIZENS BANK AND TRUST COMPANY OF
BAYTOWN, TEXAS, on behalf of said Bank.
NOTARY PUBLIC, STATE OF TEXAS
is -4-
LOAN AGREEMENT
THE STATE OF TEXAS X
y
COUNTY OF HARRIS X
This Loan Agreement is made and entered into on this the
14th day of September, 1995, by and between CITIZENS BANK AND
TRUST COMPANY OF BAYTOWN, TEXAS, hereinafter called "CITIZENS ",
and THE CITY OF BAYTOWN, a municipal corporation, hereinafter
called "CITY ".
W I T N E S S E T H:
CITIZENS has agreed to loan CITY the sum of ONE MILLION
EIGHT HUNDRED THOUSAND AND N01100 ($1,800,000.00) DOLLARS for
construction of a Restaurant Building, a Harbor Master Facility,
and Ancillary Facility to be constructed in the Bayland Park
Complex in Baytown, near Highway 146 and the Fred Hartman Bridge.
The apprB__opq� or oif� the building to be constructed
is shown in red on the attached plat, which plat is marked as
Exhibit "A" and attached hereto. It is agreed that the exact
location of the building will be located by a metes and bounds
survey of the Bayland Park Complex. A copy of the survey as
agreed to by the parties will be attached to this Agreement as an
addendum. In addition to the location of the building, the
survey will show the parking area for the restaurant, as well as
the access to the restaurant.
1. CITY will cause construction of the Restaurant Building
to be completed according to the plans and specifications agreed
and to be agreed upon by the parties.
The loan will be disbursed as a construction loan
according to percentage of completion of construction as
heretofore agreed by'the parties.
2. The loan will be evidenced by a promissory noto to be
executed by CITY and payable to CITIZENS in semi - -annual
installments over a period of fifteen (15) years. The
outstanding balance of the note will bear interest at the One
Year Constant Maturity Treasury Rate plus one and one -half
percent (1 -1/2$) per annum.
A.,capymXX- the"aaidspromissory note in the form and
substance to be executed by CITY and delivered to CITIZENS is
attached hereto as Exhibit "B ".
3. Said loan will be secured by a Lease and Rental
Assignment and Security Agreement to be executed by CITY in the
form set out in Exhibit "C" attached hereto.
CITY will also cause the Lessee of the Restaurant
Building to execute and deliver the Confirmation and Agreement
set out in Exhibit "D ".
In addition to the Restaurant Building, CITY has
constructed a marina, and it intends to construct a building to
be used as a "ship store" in the Bayland Park Complex. In this
connection, and to additionally secure the loan payable to
CITIZENS, CITY agrees that it will collect the net rents from the
restaurant, the ship store and the marina, and that it will in
the event of default by CITY and upon demand by CITIZENS deposit
the same to a trust account to be held by CITY for the benefit of
f .
CITIZENS and used only for the purpose of maintenance and repair
of the facilities and for payment of principal and interest on
the promissory note payable to CITIZENS. Upon the establishment
of such trust account, CITY will execute and deliver a security
agreement in-form'agreeable -to CITIZENS, granting a security
interest in such account °to CITIZENS.
4. As hereinabove set out, the loan is to be made to CITY
to finance the--construction of 'a Restaurant Building to be
constructed in'CITY's Bayland'Park Complex. CITY will build the
building, and it will lease the same to a restaurant operator for
the operation 'of the facility'.
• -2-
CITY agrees that it will not terminate its lease of the
restaurant facility without first obtaining the written consent
of CITIZENS.
In the event CITY should default in its obligation to make
payments required by the said promissory note, or should it
default under any instruments securing payment of the promissory
note, and should such default continue for a period of ten (10)
days after CITIZENS has given written notice of the default to
CITY, CITIZENS is hereby granted the option to lease the property
upon which the Restaurant Building is located, and the Restaurant
Building, together with its improvements, the restaurant parking
area, and ingress and egress over and across Bayland Park for
access to and from the Restaurant Building. The net monies
received from the operation under the said lease shall be applied
by CITIZENS to CITY's indebtedness.
The term of the �lease � shall extend for so long as any
part of CITY's debt remains unpaid and, during such time, the
rent for the facilities to be leased will be One Dollar per year,
and the lease will be upon the terms and conditions as directed
by CITIZENS.
CITIZENS agrees that it will operate the restaurant
facilities in such a way to produce the greatest practicable
amount of income.
5. CITY wfil''ke'ep'snd maintain hazard insurance upon the
building in an" amount equal'to at'least the unpaid balance of
CITIZENS' loan, and CITIZENS will be named as the loss payee.
6. CITY agrees'that''it' ;will furnish CITIZENS a monthly
cash flow statement detailing 'its receipts and disbursements from
its leasing operation of the Restaurant, the Harbor Master
Facility, and the Ancillary Facility. The statement for each
month is due before the' 25th day'of the month following the month
for which the report is made.
•
7. All notices or other communications required or
permitted toy be �gyen ,to this Agreement shall be in
writing and shall be considered as properly given if hand
delivered or if mailed from within the United States by first
class United States mail, postage prepaid, or by overnight
carrier, guaranteeing next -day delivery, and addressed as follows:
If to CITIZENS:
Citizens Bank and Trust Company of Baytown, Texas
1300 Rollingbrook
Baytown, Texas 77521
Attention: Mr. Sam Schulze
Executive Vice President
If to CITY:
City of Baytown
2401 Market Street
P. O. BOX 424
Baytown, Texas 77522
Attention: City Manager
A party may change its address and the person to whom
such notice is to be directed by giving notice in writing,
stating. its new address and the parson to whom notice is to be
given, to all of the other parties. Notice to a party, if
deposited in the United States mail as herein provided shall be
deemed given to and received by the named addressee on the
earlier of actual receipt or three (3) business days after it is
so deposited. Notice to a party given by hand delivery or by
overnight carrier shall be effective upon receipt by the
addressee named'therein.,
EXECUTED the'day and'year'first above written.
CITIZENS BANK AND TRUST COMPANY OF
BAYTOWN, TEXAS
ATTEST:
By:
THE CITY OF BAYTOWN, a municipal
corporation
ATTEST:
By
City Secretary mayor-
-4-
CONFIRMATION AND�AGREEMENT BY LESSEE
0
THE STATE OF TEXAS X
X KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF HARRIS X
WHEREAS,_.THE"-TTY�.OF BAY - TOWN., a municipal corporation, of
the County of Harris in the State of Texas, hereinafter called
Borrower, for the purpose of securing a loan from CITIZENS BANK
AND TRUST COMPANY OF BAYTOWN, TEXAS, a State banking corporation,
of the County of Harris in the State of Texas, hereinafter called
CITIZENS, has executed its one certain promissory note of even
date herewith, in the principal sum of $1,800,000.00, bearing
interest as therein specified, and payable to the order of
CITIZENS in installments as therein provided, said note providing
for acceleration of maturity in event of default and for
attorney's fees, and for the purpose of securing said note has
executed a Lease and Rental Assignment to CITIZENS of all leases
and rental contracts which have been and which may hereafter be
executed covering all or any part of the real property described
in said.lease, and all rentals and income therefrom, ouch
assignment to become effective only in event of default in the
payment of said note or in the performance of any covenant
contained in said Lease and Rental Assignment and Security
Agreement.
WHEREAS, the'undersigned."Lessee is in possession of said
real property or a part thereof under and by virtue of a written
lease, dated September 12, "1995,`entered into by and between THE
CITY OF BAYTOWN, a municipal corporation, as Lessor, and NINFA'S
OF BAYTOWN, INC.`,'as'Lessee, a'copy of which lease is hereto
attached and made a part hereof;
WHEREAS, CITIZENS will not close said loan and advance the
funds thereof'and accept said note and Lease and Rental
Assignment unless and' until the undersigned Lessee confirms
certain representations hcrctd'fore'made to it by said Borrower
and agrees to certain matters with respect to LQ=noo'a leasehold
rights and estate;
.. .. .. . I.. .
NOW, THEREFORE, in consideration of the premises and in
consideration of CITIZENS making and closing said loan, the
undersigned Lessee hereby confirms, represents and agrees as
follows:
1. Subject to completion of the premises according to
plans and specifications, the undersigned Lessee agrees
to accept possession of the premises demised pursuant
to the terms of the aforesaid lease.
2. The Lessor is not in default in any manner in the
performance of any of the terms, covenants or
provisions of said lease.
3. That the aforesaid lease has not been modified, altered
or amended.
4. That there are no offsets or credits against rentals,
nor have rentals been prepaid, except as provided by
the lease term.
5. That the term or primary term of said lease expires
September 11, 2005, and Lessee is not in default in the
payment of such rentals.
6. That the undersigned Lessee has no notice of an
assignment, hypothecation or pledge of rents or the
lease, except to CITIZENS.
7. That as long as the indebtedness to CITIZENS remains
unpaid, the undersigned Lessee agrees as follows:
A.
That no rental will be prepaid under said lease for
more than one month in advance during the term thereof
except as may be required to be paid in advance by the
express terms thereof, without first obtaining the
written consent of CITIZENS.
B.
That said lease will not be changed or modified in any
manner-without first' obtaining the written consent of
CITIZENS.
C.
To give prompt written notice to CITIZENS in event of
damage or destruction to the premises by fire or other
casualty.
This agreement shall be binding upon and shall inure to the
benefit of thelegal' representatives, heirs, successors and
assigns, respectively, of the undersigned Lessee and CITIZENS.
EXECUTED, this 14th day of September, 1995.
NINFA'S OF BAYTOWN, INC.
ATTEST: