Ordinance No. 7,388950914 -2
ORDINANCE NO. 7388
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 LEASE OF PREMISES AGREEMENT WITH NINFA'S
BAYTOWN, INC.; 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 pro pIosal and authorizes and directs the
Mayor and City Clerk of the City of Baytown to execute and attest
to a Lease of Premises Agreement with Ninfa's Baytown, Inc. 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.
/�- (f, GC _
PETE C. ALFARO, Mayor
A'T'TEST
EILEEN-P. HALL, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, S City Attorney
® legal/ council/ sep ,embe,19- 14- 95authAGREEninfas
® LEASE OF PREMISU
This lease is signed on this day of September, 1995, between The City of Baytown,
Texas, a municipal corporation located in Harris and Chambers Counties, ( "Lessor ") and Ninfa's
Baytown, Inc., having its principal place of business at 214 N. Nagle, Houston, Texas 77003
( "Lessee "). The Lessor and Lessee agree as follows:
DEFINITIONS
Lessor: City of Baytown, Texas.
Lessee: Ninfa's Baytown, Inc.
Total Capital Cost: The Total Capital Cost shall mean all costs associated with the design,
permitting, construction and equipping of the premises. Equipping of the Premises shall include the
acquisition of all of the items listed on Exhibit "A," which is attached hereto and incorporated herein
for all intents and purposes. Total Capital Cost shall not include the cost of any consumable items,
including, but not limited to, inventory, glassware, china, stoneware and paper goods. Total Capital
Cost shall also not include the cost of site improvements, including, but not limited to, curb cuts,
entryways, parking lots, parking lot lighting, walkways, all utility extensions, sprinkler systems,
and landscaping materials. Except for architectural and engineering fees, total Capital Cost shall
also not include any fees paid to consultants, developers or project managers for services rendered
in the guidance or management of the completion of Lessor's Capital Improvements.
Lessor's Capital Improvements. Those improvements made by Lessor for the full
construction and equipping of the premises, such that the premises are ready for use by the Lessee.
Upon completion of such Improvements, Lessee shall be required to supply consumable items such
as inventory, china, glassware, stoneware and paper goods. These improvements shall include,
construction of all site improvements in accordance with approved architectural and engineering
drawings, which shall include, but not be limited to, construction of curb cuts, entryways, the
parking lot of at least one hundred (100) spaces serving the Premises and the surrounding
development, all parking lot lighting, sign pylons, sign monuments, walkways, all utility extensions,
sprinkler systems, landscaping materials, the building slab or pad and any special structures such as
piers that may be required underneath the premises for support. Lessor's Capital Improvements shall
also include the design, permitting, construction and equipping of the premises. Equipping of the
premises shall include the acquisition of all of the items listed on Exhibit "A." Lessor's Capital
Improvements shall not include the provision of any consumable items, including, but not limited
to, inventory, glassware, china, stoneware and paper goods.
Architectural and Engineering Fees. Fees paid solely for the preparation of architectural and
engineering plans for Lessor's Capital Improvements. Such fees shall not include project
management fees, which include those fees paid for the professional services of a master plan
developer or the professional services of others that are not essential, as reasonably determined by
the Lessor, to the construction of the facility to be located on the Premises.
EXHIBIT A
® Lease Commencement Date: The earlier of either the date the premises opens for business
or forty -five days after the Lessor issues the certificate of occupancy.
Rent Commencement Date: Exactly one year after the Lease Commencement Date.
Interim Term of Lease: The Interim Term of this lease shall commence on the date both
parties have executed this lease and end with the Lease Commencement Date. Reference to "term"
herein shall, unless stated otherwise, include the Basic and Interim Term and any extensions thereof.
ARTICLE t
Premises
1.01 The Bayland Harbor Development. The Lessor owns the tract of land in Harris County,
Texas, more particularly described in Exhibit "B" (the "Premises ") which is a part of the Bayland
Development in conformity with the plan attached hereto as Exhibit "C" (the "Plan").
1.02 Premises. Lessor hereby rents and leases unto Lessee, and Lessee hereby takes and hires
from Lessor, a portion of the land of the Bayland Development described as follows:
(a) The "Premises ", which consists of-
of
(i) The building (to be constructed) outlined in red on the Plan which consists
square feet; to be located on the Premises
parcel consisting of square feet, together with all
improvements, equipment, fixtures, machinery and appliances located therein or to
be erected or installed therein by the Lessor (the "Lessor's Capital Improvements ").
(b) The right for Lessee and its agents, employees, customers, and invitees to use the
parking areas and the other common areas and all rights, alleys, rights -of -way, easements,
and appurtenances thereunto belonging or in any way appertaining to the Bayland
Development on a non - exclusive basis in common with the general public and other lessees
of the Bayland Development and their respective agents, employees, customers and invitees.
Such non - exclusive right to use the parking facilities shall be subject to all of the terms and
conditions imposed at any time by the Lessor or the Lessor's developer, so long as such
terms and conditions are not inconsistent with Section 3.06 herein.
® ARTICLE 2
Term and Rental
2.01 Term. The Basic Term of this lease shall commence on the Lease Commencement Date, as
herein defined, and continue thereafter until ten (10) years have elapsed. Immediately after the Lease
Commencement Date, Lessor and Lessee shall enter into an agreement in recordable form setting forth
such date.
2.02 Right of Extension. Lessee is granted the right to extend the Basic Term for an additional
period of 5 years. If Lessee elects to extend the Basic Term for the first additional period of 5 years, the
Lessee may also elect to extend the Basic Term for a second additional period of 5 years immediately
following the first additional period. If the Lessee elects to extend the Basic Term for the second
additional period of 5 years, the Lessee may also elect to extend the Basic Term for a third additional
period of 5 years. If the Lessee elects to extend the Basic Term for the third additional period of 5 years,
the Lessee may also elect to extend the Basic Term for a fourth additional period of 5 years. If the Lessee
elects to extend the Basic Term for the fourth additional period of 5 years, the Lessee may also elect to
extend the Basic Term for a fifth additional period of 5 years. If Lessee elects to extend the Basic Term
for the fifth additional period of 5 years, it the Lessee may also elect to extend the Basic Term for a sixth
additional period of 5 years. In each case, the option may be exercised by giving Lessor written notice
thereof at least one hundred eighty (180) days before the expiration of the applicable term. All of the
terms and conditions hereof shall apply during the additional term(s), unless otherwise modified in
writing by the parties hereto.
2.03 Removal of Lessee's Property. Upon expiration of this Lease, Lessee shall have the right
to remove from the premises any and all furniture, fixtures, trade fixtures, equipment and special finish
items specifically identified as not having been paid for by the Lessor. All alterations, modifications,
and/or repairs to the Premises must be approved in writing by the City Manager prior to such alteration,
modification and repair being performed, and the same shall become the property of the Lessor upon
installation and shall not be subject to removal as provided by this paragraph. Any and all indentations
and differences in the conditions of the walls ceiling and floor surfaces shall be repaired at the sole cost
and expense of the Lessee, for the Lessee hereby understands and agrees that the Lessee shall be
obligated to repair, restore, renovate or redecorate the leased premises by reason thereof to the condition
of the premises when the Lessor issued the certificate of occupancy, normal wear and tear as determined
at the reasonable discretion of the City Manager, being excepted. The Lessee is also obligated to leave
the leased Premises in a safe condition, to cap off any wiring or plumbing to which the assets or property
so removed were attached and to repair damage, if any, to exterior walls and exterior roofing caused by
the Lessee in the removal of such assets and property.
2.04 No Rent for Interim Term. During the Interim Term and for exactly one (1) year after the
Lease Commencement Date, the Lessee shall not be obligated for any rental, taxes, or other payments
due under this lease. However, Lessee understands and agrees that the debt service payment for the first
year will be capitalized and included in calculating the rental payments herein.
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2.05 Base Rent for Basic Term. Starting exactly one (1) year after the Lease Commencement Date
and during the Basic Term and each extension thereof, Lessee shall pay to Lessor the following minimum
annual rent payable in advance in equal monthly installments:
(a) An "Annual Minimum Rental" calculated in accordance with Section 2.05(b)of this
Lease, per Lease Year from and after the Rent Commencement Date, it being understood that
except as otherwise herein provided, the use and occupancy of the premises shall be rent -free
during the Interim Term and for the first twelve months after the Lease Commencement Date.
(b) The "Annual Rental" shall be calcplated in the following manner:
In addition to the amount as calculated in subsection (d) hereof, the Total
Annual Rental shall equal the lesser of:
(1) The Total Capital Cost of the restaurant facility as more fully described in
Exhibit "D" to this Lease, which is incorporated herein by this reference for all
intents and purposes, amortized over a period fifteen (15) years, in equal
monthly installments, at an annual interest rate between seven and one quarter
percent (7.25 %) and eight percent (8 %) plus $6,000 per year; or
(2) $135,431.28 per year in equal monthly payments of $11,285.94 per month,
for the full term hereof.
first Option Term. During the first Option period, the annual rental shall be the
same as during the initial term.
(c) During each option term after the first extension of this lease, Lessee shall pay to Lessor,
as all rent due and owing, four percent (4 %) of the Gross Sales (defined below) made by Lessee in
each month of the applicable option term. Payments shall be made on the twentieth (20th) day of
each month for gross sales realized for the previous month. The term "Gross Sales," as used herein,
means the gross sales price of all merchandise, goods, property and services sold at or from the
Premises (whether for cash or otherwise) by Lessee. No promotional material given away by Lessee
shall be included in Gross Sales. Sales, liquor and similar taxes and discounts received by Lessee
on credit cards are not part of Gross Sales. The sales price of merchandise that is returned by
customers during a period of time shall be deducted from Gross Sales for that period of time to the
extent included in the computation of Gross Sales when the merchandise is sold. On or before the
sixtieth (60th) day after the end of each lease year, Lessee shall furnish to Lessor a statement
certified by an officer of Lessee of the Gross Sales during such year (the "Annual Statement ") and
if, for any reason, the sales reported after the end of the year are more or less than the sales reported
each month during the year, then Lessee will either pay any deficiency or receive an offset from
percentage rent the following month. Lessee shall keep and make available at the premises accurate
records of Gross Sales for each year and partial year. These records shall be open for inspection by
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Lessor or its duly authorized representatives at all reasonable times. Lessee shall not be required to
retain any records for any year for more than three (3) years after the end of that year, but shall not
dispose of any such records before that time. Lessor shall have the right from at any time to audit
any Annual Statement and all of the books and records supporting any Annual Statement. Lessee
shall make all of these records readily available for the examination. If any audit by Lessor shows
an understatement by more than five percent (5 %) of Gross Sales in the Annual Statement, then the
cost of the audit shall be paid by Lessee. If the audit shows the rent in fact due exceeds the amount
of the rent paid by Lessee, then Lessee shall pay Lessor the amount of the deficiency within ten (10)
days written notice of such deficiency.
(d) During the initial term of the lease and the first extension thereof, Annual Rental shall
include not only those amounts previously enumerated in subsection (b) of this section but also the
cost of the improvements more fully described in Exhibit "A" which are greater than $120,000 but
less than or equal to $200,000, amortized over a period of fifteen years, in equal monthly
installments at an annual interest rate between seven and one quarter percent (7.25 %) and eight
percent (8 %). Lessee shall be responsible for all improvements listed in Exhibit "A" which exceed
$200,000, and the Lessor shall be released of any and all obligations of obtaining and /or financing
the improvements in excess of such amount.
2.06. Gross Lease. Except as otherwise provided for elsewhere in this lease, Lessee's sole
monetary responsibility shall be the timely payment of rent as provided for in this Article 2 of the
Lease. All payments required herein to be paid by the Lessee shall be due on or before the fifth (5th)
day of each month. If payment is not received at the appointed time, Lessee will be obligated to pay
interest on delinquent payment in the amount of one percent (1 %) per month.
2.07 NoPartnership. Nothing herein contained shall be construed or held to make Lessor
and Lessee partners in the conduct of any business. The relationship between the parties hereto is
and shall at all time remain that of Lessor and Lessee.
2.08 Right to Inspect Premised The Lessor has the right to inspect the Premises at all
reasonable times during the period of this Agreement or any extension thereof for inventory control
purposes and to ensure compliance with the terms and conditions of this Agreement.
2.09 Confirmation and Agreement. The Lessee hereby expressly agrees that Lessee
will execute and deliver to the Lessor's payee the Confirmation and Agreement, which is attached
hereto and incorporated herein for all intents and purposes as Exhibit "E."
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0 ARTICLE 3
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Use and Occupancy
3.01 Purpose. Lessee shall not use the Premises for any disorderly or unlawful purpose. The
Premises shall be used by Lessee for the purpose of operating a first- class, full- service restaurant with
recorded entertainment and with service of alcoholic beverages. Any additional use not expressly
mentioned herein must be approved in writing by the City Manager prior to the commencement of such
use.
3.02 Conformance to Law. In conducting its business on the Premises, Lessee agrees to conform
to all applicable state, federal and local laws, ordinances, regulations and licensing requirements. Lessee
shall have the right to contest in good faith and by appropriate means any such law, regulation or
licensing requirement.
3.03 Exclusive Use. Lessor will not use, or permit others to use, sell for the intended use or
permit any tenant or the assignee or subtenant of any tenant to use, any land or structure owned or
controlled by Lessor located on the Bayland Development Site for a restaurant which has a menu
consisting of fifteen percent (15 %) or more of traditional Mexican dishes, with the exception that any
business currently in existence will be excluded from this section.
3.04 Lessor's Covenant of Title and Quiet Fnioyment . Lessor covenants and warrants that Lessor
has the full right and lawful authority to enter into this lease for the full term hereof and that Lessor has
good, valid and marketable title to the Premises.
3.05 Successors and Assigns. The covenants and agreements herein contained shall run with the
Bayland Development and the Premises and shall be binding upon and inure to the benefit of the parties
and their respective heirs, legal representatives, successors and assigns.
3.06 Parkin. The Plan shows the Premises and the rest of the Bayland Development. Lessor
agrees and warrants that Lessee and its agents, employees, customers, and invitees shall have the right
(together with the other tenants of the Bayland Development and their respective employees, invitees and
customers and the general public) to use all of the parking areas and other common areas shown on the
Plan for vehicle parking purposes only. Lessee understands and agrees that throughout the term of this
lease, and any option terms hereof, the parking areas and the modes of ingress and egress may be changed
from time to time at the sole option of the City Manager; however, the Lessor acknowledges that Lessor
will do nothing to substantially decrease the number of parking spaces allotted for the restaurant
enumerated hereinabove. furthermore, if the Lessor determines in its reasonable discretion that
additional parking facilities are needed to reasonably accommodate the parking for the Lessee's
restaurant, the Lessor shall to the extent reasonably practical provide additional parking spaces, giving
due consideration to the cost of construction, the necessity of the same, other economic variables, and
all other factors determined relevant by the Lessor.
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3.07 No Other Predominantly Mexican Restaurants. Lessor shall not allow the establishment of
any other restaurant which has a menu consisting of fifteen percent (15 %) or more of traditional Mexican
dishes within the Bayland Development at any time during the first five years of the initial term of this
Lease.
ARTICLE 4
Improvements
4.01 Improvements. The Lessor shall proceed to install the improvements which are shown on
the schedule attached hereto as Exhibit "A," in a reasonably expedient manner in conformity with such
specifications and criteria as the Lessee may select so long as the same are not in derogation of the Plan
or any other specification and/or criteria established by the Lessor.
4.02 Architectural and Engineering Services. After consultation with the Lessee, Lessor shall hire
an experienced restaurant architect. Lessor shall have the right, in its sole discretion, to hire and retain
an engineering firm to provide such services. Within five (5) days after the date of this Agreement,
architectural and engineering work on the design of the Premises shall begin. All architectural and
engineering shall be completed and ready for permitting ninety (90) days after such work has begun.
Lessor and Lessee agree to cooperate in providing standards, specifications and guidance to the architect
and engineer regarding the design needs of the restaurant.
4.03 Commencement of Construction. No later than ninety (90) days after the completion of
architectural and engineering drawings including any revisions thereof, Lessor shall commence
construction and thereafter proceed without undue delays to complete construction and authorize
occupancy of the premises by Lessee.
4.04 Warranty Claims. Lessor shall assign to Lessee all warranty, guarantee and similar rights
that Lessor may have with respect to: (a) the Lessor's Capital Improvements to the extent that they relate
to parts of the premises that Lessee is obligated to maintain hereunder, and (b) the Lessee's Improvements
constructed or installed by Lessor's contractors. The assignment will be in such form as Lessee may
reasonably require. Lessee understands and agrees that Lessee is obligated to repair and replace the
personalty which the Lessor initially purchases. Such repaired and/or replaced property shall at all times
be the property of the Lessor.
4.05 Lessee's Property. Lessor agrees that all consumables, accessories and /or decor items of
whatever kind and nature kept in or installed in the Premises by the Lessee or Lessee's subtenants or
licensees, which such property has not been provided or financed by Lessor, shall not become the
property of Lessor and may be removed by Lessee or Lessee's subtenants or licensees. However, all
fixtures (trade or otherwise), machinery, equipment, furniture, and permanent improvements to the
building and other property of whatever kind and nature which are affixed in any way to the Premises
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may not be removed by Lessee or Lessee's subtenants or licensees, for such improvements purchased by
the Lessee shall be and remain the Lessor's property.
4.06 Lessor's Property. Lessee agrees that all fixtures (trade or otherwise), machinery,
equipment, furniture and other property of whatever kind and nature kept in or installed in the Premises
by the Lessee or Lessee's subtenants or licensees, which such property has been provided or financed by
Lessor, shall not become the property of Lessee and may not be removed by Lessee or Lessee's
subtenants or licensees at any time during the term of the Lease or any option terms hereof.
4.07 Si ns. The Lessee shall have the right to install as many signs in the format of its own
designation as permitted by the Lessor or other governmental body having jurisdiction over the proposed
signs. Lessor's approval of signage shall be required.
4.08 Le$ or to Maintain Utility Connections. Lessor agrees to maintain necessary main, conduits
and other utility lines necessary to supply water, secondary power, and sewerage service to the Premises.
Lessor warrants that it has the right and power to maintain the above - referenced utility lines which run
over or under the surface of the Bayland Development property.
4.09 Attainment of Liquor License. At the time of the signing of this lease, Lessor has no
knowledge of any restrictions as to Lessee's attainment of a liquor license.
ARTICLE 5
Maintenance, Repairs and Alternations
5.01 By Lesso . Lessor, at its sole cost and expense, shall maintain and repair the foundation, the
building structure, exterior walls, roof, exterior windows, exterior doors and exterior mounted HVAC
units on the roof of the Premises. Lessor shall also maintain, at its sole cost and expense, the grounds
and the landscaping materials adjacent to the Restaurant and throughout the Bayland Development,
including the daily expenses associated with cleaning and maintenance of the parking lot as well as
maintenance of parking lot lighting. At all times during the term of this Lease, Lessor shall make
reasonable efforts to fix or repair any defect in the building, structure, exterior walls, roof, exterior
windows and exterior doors of the Premises upon receipt of written notice from Lessee that such repairs
are necessary.
5.02 By Lessee. Lessee agrees at its own cost and expense to maintain the interior of the Premises
in good condition and repair, ordinary wear and tear excepted. All maintenance and repair work
undertaken by Lessee shall be done in a workmanlike manner, leaving the Premises free of liens for labor
and materials. In the event that a lien is filed against the Premises for work completed by a contractor
or subcontractor, Lessee shall immediately use its best effort to remove such lien within ten (10) days
after the lien is placed on the property. In the event that a lien remains on the property after the
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expiration of ten days, Lessee shall execute a bond for the sum of one hundred percent (100 %) of the total
lien amount, in standard forms for this purpose, guaranteeing that such lien shall be released from the
Lessor's property. Such bonds must be submitted to and approved by the Lessor in order for the Lessee
to be in compliance with this provision.
5.03 Alterations. After completion of the improvements, and during the term of this lease, Lessee
may, after obtaining prior written approval from the Lessor, at its own expense make such alterations,
repairs, and additions within the interior of the building on the Premises as may be permitted by laws and
regulations in force at the time, as long as such alternations, repairs, and additions do not structurally
weaken the building or render the same unsafe. Lessee shall, at all times, hold Lessor harmless from the
payment for any work performed by Lessee pursuant to the provisions of this paragraph. The cost of any
changes which may be structural in character and not occasioned by alternations or additions made by
the Lessee and which are ordered by a governmental authority after the building or improvements
provided for under this lease are completed, shall be borne by the Lessee and shall increase the said
annual rental.
ARTICLE 6
Insurance, Damage, and Condemnation
6.01 Lessee's Insurance. Lessee agrees to provide and keep in force, throughout the term of this
Lease and any extensions thereof, commercial general liability insurance with an insurance company
licensed to do business in the State of Texas who has an AM Best Rating of A or higher with limits of
$1,000,000 per occurrence and $2,000,000 aggregate. In all liability policies as maybe required herein,
the Lessee agrees to name the Lessor as an additional insured and to provide a notice of cancellation on
all insurance of at least sixty (60) days. Lessee may maintain the insurance required hereunder under
a blanket policy only if such policy provides the protection for the Premises as required in this paragraph,
no aggregate policy for multiple premises shall be allowed. All insurance policies of the Lessee must
be written on an occurrence basis. Additionally, the Lessee's commercial general liability insurance shall
include premises and operations endorsements as well as products and liquor liability endorsements. All
requirements of Texas law regarding the provision of Workers Compensation insurance and workers'
injuries must also be procured and maintained by the Lessee throughout the term of this lease and all
extension thereof whether by a Workers' Compensation Insurance policy approved by the Lessor or
pursuant to Lessee's non - subscriber status. Such policies shall contain a waiver of subrogation in favor
of the Lessor and all of the applicable above - referenced requirements shall be required for such policy.
Lessee shall furnish Lessor copies of certificates evidencing these policies prior to or simultaneously
with the Lessor's issuance of the certificate of occupancy. All insurance policies provided by the Lessor
as required herein will be secondary policies and will be subordinate to the Lessee's insurance policies
as required herein.
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6.02 Fire Extended and Liability Coverage. Lessor agrees that at all time during the term it will
keep the entire Premises continuously insured against the loss or damage by fire and all of the risks
covered by a standard extended coverage endorsement in amounts not less than the full replacement
value thereof. Lessor agrees to deposit a copy of all insurance policies or certificates showing such
insurance in force with Lessee during the term of this lease upon request. The policy or certificates shall
also include a provision for thirty (30) days wratten notice to Lessor in event of any pending change in
or cancellation of the insurance. Lessor will carry liability insurance on the common areas.
6.03 Damage or Destruction by Casualty. If the Leased Premises shall be damaged by fire, an
unavoidable accident or other casualty, Lessor shall cause the damage to be repaired. Lessor shall not
be liable for any damage or destruction to the property on the Premises owned by Lessee under the terms
hereof or belonging to third parties, not for the loss of any such property from the Premises by theft or
otherwise.
6.04 Lessee's Casualty Insurance. The Lessee will maintain primary and extended coverage
insurance on its leasehold improvements in sufficient amounts as determined by the Lessor at all times
during the term of this Lease and any extensions thereof.
6.05 Condemnation. If the whole of the Leased Premises shall be acquired or condemned by
expropriation or eminent domain for any new public or quasi- public use or purpose, then the term of this
lease shall end as of the date that title vests in such proceeding and all rentals shall be paid up to that date.
6.06 Partial Condemnation. If any part of the Premises shall be acquired or condemned as
aforesaid and if the partial taking or condemnation shall render the Premises in both the Lessee's and
Lessor's opinions unsuitable for the business of the Lessee, then the term of this lease shall end as of the
date that title vests in such proceedings and rent shall be adjusted to the date of the termination. In the
event of a partial taking or condemnation that is not extensive enough to render the Premises in both the
Lessee's and Lessor's opinions unsuitable for the business of the Lessee, then the term of this lease shall
end as of the date that title vests in such proceedings and rent shall be adjusted to the date of the
termination. In the event of a partial taking or condemnation that is not extensive enough to render the
Premises in both the Lessee's and Lessor's opinions unsuitable for the business of the Lessee, then Lessor
shall promptly restore the leased Premises to a condition comparable to its condition at the time of such
condemnation less the portion taken and, if the size of the Premises has been reduced by the taking or
condemnation, the rent shall be reduced proportionately.
6.07 Condemnation of Parkiny, Area. If a part of the common parking areas in the Bayland
Development shall be so acquired or condemned as a result of which either:
(a) There shall be less than the number of parking spaces referred to in Article I
hereinabove, or
(b) The parking available in the Bayland Development shall not satisfy the requirements
of any applicable law, ordinance or governmental rule or regulation, or
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® (c) The modes of access to the parking space and the Premises shall have been materially
impaired.
6.08 Sharing Award. In the event of any condemnation, whether whole or partial, the Lessee shall
be entitled to receive any monies expressly apportioned by a court of competent jurisdiction in its final
judgment. If no amount is so apportioned, the Lessee shall be entitled to nothing under the terms of this
Lease.
ARTICLE 7
Common Area Maintenance
7.01 Common Area Maintenance. Lessor shall, at its sole cost and expense, be responsible for
all maintenance and repair of the common areas of the development. Such maintenance and repair shall
be of a high level and shall be conducted and performed by the Lessor on a continuing basis.
ARTICLE 8
Mortgages and Estoppel Certificates
8.01 Lessee's Mortgages. Lessee shall not have the right to mortgage and encumber its leasehold
estate, nor any of the items of personal property provided by or financed by Lessor, but shall have the
right to mortgage and encumber personal property, fixtures, trade fixtures, special finish items unique
to the restaurant's concept, equipment, furniture and merchandise located in or upon the Premises, which
has not been provided or financed by Lessor. In such event, or events, Lessor hereby agrees for the
benefit of such mortgagees or holders of indebtedness from time to time:
A. Equipment Waivers. To sign any document waiving all rights of Lessor to such
equipment or other items of personal property and providing that any such lender or lessor may
remove such items from the Premises in the event that Lessee defaults on its loan or lease
agreements.
B. Notices. That Lessor will give to any such mortgagee or holder of indebtedness
simultaneously with service on Lessee a duplicate of any and all notices or demands given by
Lessor to Lessee from time to time. Such notices shall be given in the manner and be subject to
the provisions of Section 9.01 and 11.02 of this Lease;
C. Mortgagee's Liability. Except with respect to the period any such parties actually hold
the leasehold estate created hereby, no liability for the payment of rental or the performance of
any of the Lessee's covenants and agreements hereunder shall attach to or be imposed upon any
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mortgagee, trustee under any trust deed, or any holder of any indebtedness secured by any
mortgage or security agreement upon such personal property, all such liability being hereby
expressly waived by Lessor.
8.02 Lessor's Right to Sell or Mortgage. Lessor reserves the right to sell, assign, transfer or
convey its interest in this Lease and the premises without prior consent of Lessee, and Lessor shall further
have the right to encumber and mortgage the premises and assign rentals payable by Lessee to Lessor to
any mortgagee or other secured party who obtains an interest in the land and buildings of which the
premises are a part or upon any buildings hereafter placed upon land of which premises form a part;
provided, however, that no such sale, assignment, transfer, conveyance or mortgage shall in any way
diminish the rights of Lessee to use the premises as provided in this Lease, and any person or entity
standing in the place of Lessor as a result of any such sale, assignment, transfer, conveyance, or mortgage
shall assume the duties and obligations to Lessee as provided in this Lease as if such person or entity
were Lessor herein.
8.03 'Statement of Performance. Lessor agrees to furnish Lessee, and any of the Lessee's
mortgagees, upon written request therefore, a statement wherein Lessor shall, under oath, acknowledge
that as of the date of such statement Lessee, to the best of the Lessor's knowledge, has performed and
observed all of the covenants and conditions herein stated to be performed and observed by Lessee, and
that to the best of the Lessor's knowledge as of said date the leasehold estate hereby created and granted
to Lessee is free of all defaults hereunder (or if defaults exist, specifying the nature of the default);
provided, however, Lessor shall not be required to furnish Lessee or any such sublessee or occupant with
such statement more than once during any calendar quarter. Nothing contained herein or any statement
subsequently issued hereby shall waive any of the Lessor's rights to enforce any of the provisions of this
Lease against the Lessee.
ARTICLE 9
Lease Defaults
9.01 Defaults by Lessee. Lessor shall have the right to declare the Lease in default if Lessee:
(a) Fails to pay any installment of rent or make any other payment of money due
hereunder within seventy -two (72) hours after written notice of the failure shall have been given
to Lessee, or
(b) Defaults in the performance of any other obligation imposed upon Lessee hereunder
and does not cure the default within fifteen (15) days after written notice describing the default
in reasonable detail shall have been given Lessee (or, if the Lessor in its sole discretion,
• determines that the default cannot reasonably be cured within the fifteen (15) day period, if
12
® Lessee does not commence curative work within the fifteen (15) day period and prosecute the
work to completion with reasonable diligence), or
•
(c) Institutes proceedings, whether voluntary or otherwise, under the provisions of the
Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insolvency,
then the Lessor may immediately without any notice terminate this lease, or
(d) Makes an assignment for the benefit of creditors, then Lessor may immediately and
without notice terminate this lease or exercise any other rights or remedies available as a matter
of law.
9.02 Unless otherwise stated in this lease, if the Lessee commits a default, the Lessor shall give
the Lessee a written notice specifying the default and the Lessee shall have the following periods of time
to cure the default:
(a) In the case of a failure to pay rent or any other default consisting of the failure to pay
money, the Lessee must remedy the default within seventy-two (72) hours from the receipt of the
notice, provided that if:
(1) The Lessor is required to give the Lessee notice of nonpayment of rent three
(3) times in any twelve month period, and
(ii) Each of the notices contains a reminder of the substance of this subpart
9.02(a), thereafter Lessor shall no longer be obligated to give Lessee notice of a default
consisting of the nonpayment of rent and the Lessor may immediately terminate the lease.
(b) In all other cases with the exception of those cases hereinabove specified where the
lease is subject to immediate termination by the Lessor, the default must be cured within fifteen
(15) days from the receipt of the notice or, if the default is not reasonably susceptible of being
cured within the fifteen (15) day period, commence curative work within the fifteen (15) day
period and prosecute it to completion with diligence. The determinations regarding whether the
default is reasonably susceptible to being cured within the above - referenced time frame and
whether the Lessee is commencing curative work with diligence shall be made at the reasonable
discretion of the Lessor.
9.03 If any such default occurs and is not cured within the time allowed by paragraph 9.02, the
Lessee understands and agrees that the Lessor shall become immediately liable for all amounts due or
which would have become due under the term of the lease or any extension thereof. Furthermore, in the
event of such default, the Lessor, in addition to any other rights which Lessor may have under law or
under the provisions of this Lease, shall have the following options, subject to Lessee's rights under
paragraph 9.06, below:
13
® (a) Immediately to re -enter and remove all persons and property from the Leased
Premises. Such property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of, Lessee, all without service of notice or resort to legal process and
without being deemed guilty of trespass, or becoming liable for any loss or damage which may
be occasioned thereby. Such re- entering and removal of persons or property from the leased
Premises shall not be deemed to preclude Lessor from exercising any other options granted by
this lease.
(b) To proceed for past due installments, reserving its rights to proceed later for the
remaining installments and to exercise any other option granted by this lease.
(c) Immediately to cancel this lease and to proceed in any manner against the Lessee for
past due installments.
(d) To cancel this lease and re -enter the leased Premises and to re -let the Premises in the
manner set forth below.
(e) Otherwise, Lessor may avail itself of any rights under the laws of the State of Texas
to evict Lessee and obtain occupancy of the Premises and to recover any past due rent and
damages until the Premises shall have been released, all as more fully provided in paragraph 9.04
hereafter.
9.04 Should Lessor elect to re- enter, under any provision of this lease, or should Lessor take
possession pursuant to legal proceedings or pursuant to any notice provided for by law, the Lessor shall
have the right and the ability to make such alterations and repairs as the Lessor determines is reasonably
necessary in order to re -let the Premises and may re -let the Premises or any part thereof. This re- letting
shall be for such rental and on such terms as Lessor may deem advisable, including a lease on a monthly
basis or for a term extending beyond the term of this lease. All payments received by Lessor from such
re- letting for the unexpired term of this lease shall be applied: first, to the payment of any costs and
expenses of such reletting, including attorney's fees and the cost of such alterations and repairs; second,
to the payment of any indebtedness other than rent due from Lessee to Lessor; third, to the payment of
the present value, at a discount rate of eight percent (8 %), of the rent due and unpaid hereunder. If such
rentals received from the re- letting are insufficient to pay the amount owed by Lessee, then the
deficiency shall be paid during that month by Lessee hereunder, to Lessor. Such deficiency shall be
calculated and paid monthly in the manner provided above. Lessee may request and shall be granted
access to Lessor's books and records in order to ascertain the status and accuracy of its account with
Lessor. Notwithstanding any other provisions hereof, in making the repairs and alterations, re- letting the
premises and exercising its other rights hereunder, the Lessor shall mitigate and minimize the damages
suffered by the Lessor and the amounts that shall be due by Lessee hereunder.
9.05 failure to strictly and promptly enforce the conditions set forth above shall not operate as
a waiver of Lessor's rights. Lessor expressly reserves the right always to enforce prompt payment of rent
and to treat the failure to pay rent in accordance with this lease as a default, regardless of any indulgences
•
14
® or extensions previously granted. The waiver by Lessor or Lessee of any breach of this lease shall not
be deemed a waiver of any subsequent breach of the same or any other term or condition of this lease
shall be deemed to have been waived by Lessor or Lessee unless such waiver is in writing and signed
by Lessor or Lessee.
•
9.06 Any and all defaults reasonably declared by the Lessor shall be final and binding upon the
Lessee. If the Lessee receives a default notice but in good faith denies that it is in default (in whole or
in part) the Lessee may prevent the Lessor from exercising the rights or remedies set forth in this Section
9 by taking the following steps:
(a) The Lessee shall remedy that part of the default as to which there is no dispute within
the time allowed by paragraph 9.02.
(b) As to the disputed part of the default, the Lessee shall either:
(i) Remedy the alleged default within the time allowed by paragraph 9.02 with
full reservation of the Lessee's right to recover from the Lessor the amount paid and costs
incurred by the lessee if it is ultimately determined that a default did not exist, or
(ii) Furnish the Lessor within the time allowed by paragraph 9.02 with security
approved by the Lessor as adequate in amount to cure the default if a default is ultimately
determined to exist, provided that the Lessor may not withhold the approval
unreasonably. The security shall consist of cash, obligations of the United States (or any
agency thereof), of certificates of deposit issued by a national bank and shall be held by
a national bank approved by the Lessor as agent or custodian for the parties.
9.07 In the case of a dispute as to the existence of a default, the Lessee may, in lieu of orin
addition to its rights under paragraph 9.06, assert its right and defenses in any other manner permitted
by law.
ARTICLE 10
MISCELLANEOUS
10.01 Assignment and Subleasing. Lessee may not assign this lease in whole or in part or
sublet all or any part of the leased Premises without the prior written consent of Lessor. Notwithstanding
any assignment or sublease, Lessee shall remain dually liable on this lease and shall not be released from
performing any of the terms, covenants and conditions of this lease.
10.02 Notices. All notices required or permitted to be given hereunder may be given by letter
sent via registered or certified mail, return receipt requested, telegram, or any other form of \wltten
communication and shall be deemed to be duly served and given for all purposes:
W
•
(a) To Lessor when received at:
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, Texas 77522
Fax: 420 -6586
(b) To Lessee when received at Lessee's office:
Ninfa's Baytown, Inc.
c/o RioStar Corporation
Attn: Rolland D. Lorenzo
214 N. Nagle
Houston, Texas 77003
Fax: 228 -0135
as the case may be. Notices to a mortgagee or a trustee or sublessee shall in like manner be mailed to its
or their respective last known addresses. Any party may change the address for the giving of notices to
it by giving due notice of the new address to the other parties, provided that the new address must be at
a place in the United States where the mails and either mailgrams or telegrams or similar communications
are regularly received. Notice given by mail shall be deemed given three (3) days after the date of the
mailing of the same to the above - referenced address.
10.03 Entire Agreement. This lease, including the exhibits hereto, contains all the agreements
between the parties hereto with respect to the Premises and may not be modified orally or in any other
manner than by an agreement in writing, signed by all the parties hereto or their respective successors
in interest.
10.04 Gender and Name. Words of any gender used in this lease shall be held to include any
other gender, and words in the singular number shall be field to include the plural when the sense
requires.
10.05 Headin2s. The headings as to contents or particular articles or sections herein are inserted
only for convenience, and they are in no way to be construed as a part of this lease or as a limitation on
the scope of the particular sections to which they refer.
10.06 Consents. Wherever either the Lessee's or the Lessor's consent or approval is required or
desired, such consent or approval shall not be unreasonably withheld.
10.07 Rent on Termination. Upon any termination of this lease, other than under Article 9
hereof, all rent paid but not earned shall not be refunded.
16
® 10.08 Force Majeure. Neither Lessor not Lessee shall be deemed in violation of this lease if it
is prevented from performing any of the obligations hereunder by reasons of strikes, boycotts, labor
disputes, embargoes, shortage of material, acts of God, acts of public enemy, acts of superior
governmental authority, weather conditions, floods, riots, rebellion, sabotage, or any other circumstances
for which it is not responsible or which is not in its control, and the time for performance shall be
automatically extended by the period the party is prevented from performing its obligations hereunder.
10.09 Effective Date of Lease. This lease shall be effective as of the date the last party hereof
has executed this lease, and references herein as to the "date this lease is signed" and words of similar
import, shall mean such date.
10.10 Recording of Lease. Lessor and Lessee shall also execute, contemporaneously with the
execution of this Lease, a Memorandum of this Lease, the form of which is attached as Exhibit "F;" to
be recorded as a short form of this lease as a public record in the appropriate jurisdiction in which the
Premises are located, and to be held in the possession of Lessee, until such time as all contingencies
contained herein have been satisfied. Any expenses of recordation of such Memorandum shall be borne
by the Lessee.
10.11 Payment of Legal Fees. Any other provision of this Lease notwithstanding, upon issuance
of a final judgement in a court of law, of competent jurisdiction, in an action in which the Court has ruled
on a dispute between Lessor and Lessee, the party against whom the judgement has been rendered shall
be responsible for payment of all court costs and the reasonable attorney's fees of the prevailing party.
10.12 Texas. The construction interpretation and performance of this Agreement shall be
governed by the laws of the State of Texas.
10.13 Venue. Both parties hereby irrevocably agree that any legal proceeding arising out of or
in connection with this Agreement shall only be brought in the District Courts of Harris County, Texas
or in the United States District Court for the Southern District of Texas, Houston, Harris County,
Division.
10.14 Liquidated Damages. Both the Lessee and the Lessor agree that time is of the essence in
the payment of all monies due pursuant to this lease and that the time allotted for each monthly payment
described herein is reasonable times for the payment of each, taking into consideration all conditions,
including but not limited to, the economic environment, restaurant industry and conditions prevailing in
this locality. The Lessee and the Lessor understand and agree that a breach of this contract as to time of
payment will cause damage to the Lessor and further agree that such damage cannot be accurately
measured and that ascertainment will be difficult. Therefore, as part of the consideration for the awarding
of this lease, the parties agree that for each and every calendar day any payment due hereunder or any
portion thereof remains delinquent as set forth in the lease, the Lessor may charge and the Lessee shall
pay as part of the monthly lease amount owed the sum of one hundred dollars ($100) as minimum
liquidated damages. However, the foregoing agreement as to liquidated damages constitutes only an
• agreement by the Lessor and the Lessee as to the minimum amount of damages which the Lessor will
17
•
sustain in any event by reason of the Lessee's failure to make payments within specified time periods.
Should the Lessor suffer damage over and above the minimum amount specified by reason of the
Lessee's failure to timely pay in strict accordance with the lease, the Lessor may recover such additional
amount. The Lessor will have the right to recover such amount from the Lessee; all such remedies shall
be cumulative and the Lessor shall not be required to elect any one nor deemed to have made an election
by proceeding to enforce any one remedy.
10.15 Litter and Pollutants. Lessee hereby guarantees that no pollutant , effluent, liquid or solid
waste material, litter, trash or garbage issued from the leased premises is allowed to collect in the waters
or in the vicinity of the Premises.
10.16 Fire System, The Lessee shall be responsible for ensuring that all fire fighting systems
and equipment is regularly inspected and remains in the highest degree of readiness.
10.17 Consent. The Lessor by this Agreement does not give consent to litigation and the Lessor
hereby expressly revokes any consent to litigation that it may have granted by the terms of this
Agreement, charter or applicable state law.
10.18 Indemnity. Lessee agrees to and shall indemnify, hold harmless and defend, the Lessor,
its officers, agents and employees, 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 attorneys' fees for
injury to or death of any person, or for damage to any property, arising out of or in connection with the
work done by Lessee under this Contract, where such injuries, death or damages are caused by the joint
negligence of the Lessor and any other person or entity. It is the expressed intention of the parties hereto,
both Lessee and the Lessor, that the indemnity provided for in this paragraph is an indemnity by Lessee
to indemnify, protect and defend the Lessor from the consequences of the Lessor's own negligence, where
that negligence is a concurring cause of the injury, death or damage. Furthermore, the indemnity
provided for in this paragraph shall have no application to any claim, loss, damage, cause of action, suit
and liability where the injury, death or damage results from the sole negligence of Lessor unmixed with
the fault of any other person or entity.
10.19 Guarantor. For the consideration herein expressed which is hereby acknowledged
sufficient and received, Ninfa's, Inc. (the "Guarantor "), hereby guarantees all payments and liabilities
of the Lessee and the performance of all obligations of the Lessee under the terms and conditions of this
Lease and all extensions thereof. It is expressly agreed by the parties hereto, the Guarantor, Lessee and
Lessor, that throughout the initial term of the lease and all extensions thereof, the guaranty provided in
this paragraph is a guarantee by the Guarantor to guaranty the performance of all of the Lessee's
obligations under this agreement, including, but not limited to, operating a first- class, full- service
restaurant and the payments of all amounts owed by Lessee hereunder.
10.20 Severability. All parties agree that should any provision of this Agreement be determined
to be invalid or unenforceable, such determination shall not affect any other term of this Agreement,
which shall continue in full force and effect.
18
•
10.21 No Third Party Beneficiaries. This Agreement shall not bestow any rights upon any third
party, but rather, shall bind and benefit Lessee and the Lessor only.
10.22 Authority to Enter Contract. Each party has the full power and authority to enter into and
perform this Agreement, and the person signing this Agreement on behalf of each party has been properly
authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby
represent that they have authorization to sign on behalf of their respective corporations.
10.23 .Agreement Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
10.24 Multiple Originals. It is understood and agreed that this Agreement may be executed in
a number of identical counterparts each of which shall be deemed an original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this lease as of the day and year
opposite their signature, said lease to be effective the first date set forth above.
m
LESSEE
By:
Ninfa's Baytown, Inc.
GUARANTOR
By:
Ninfa's, Inc.
LESSOR
PETE C. ALFARO, Mayor
City of Baytown, Texas
•
ATTEST
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
STATE OF TEXAS
COUNTY OF HARRIS
Before me on this day personally appeared , in his capacity as
of Ninfa's Baytown, Inc., on behalf of such corporation, known to me to
be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of , 1995.
Notary Public in and for the State of Texas
is 20
n
•
ATTEST
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me on this day personally appeared , in his capacity as
of Ninfa's Baytown, Inc., on behalf of such corporation, known to me to
be the person whose name is subscribed to the foregoing instrument and acknowledged to me that lie
executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of , 1995.
011
Notary Public in and for the State of Texas
STATE OF TEXAS
COUNTY OF HARRIS
Before me on this day personally appeared , in his capacity as
of Ninfa's, Inc., on behalf of such corporation, known to me to be the
person whose name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of , 1995.
bAk1h9lbayland I.wp
•
21
Notary Public in and for the State of Texas
C,
IMPROVEMENTS
The following is a non - exclusive list of improvements which the Lessor may provide in
accordance with the terms of the Lease of Premises:
QUANTITY;
:, DESCRIPTION
2
Janitor Room Shelving
1
Mop Sink
1
14" Buffalo Chopper
1
Vertical Cutter
1
S.S. Wall Shelf
1
S.S. Worktable w/ Undershelf
1
Prep. Sink
2
Shelving
2
Hand Sink
1
S.S. Worktable w/ Undershelf
I
Pot Rack
1
S.S. Wallshelf
i
S.S. Wallshelf
1
Prep. Table w/ Sink Undershelf
1
Mixer
2
Ingredient Bin
LOT
Cooler /Freezer Shelving
I
Walk -in Freezer
3
Dunnage Racks
I
Walk -in Cooler
EXHIBIT "A"
® QUANTITY
1
1
1
4
2
2
2
1
1
1
1
1
1
1
1
4
5
1
1
1
4
1
1
3
0
DESCRIPTION
24' Exhaust Hood
24' Exhaust Hood
10 Burner Range w/ Ovens
Low Boy
150 lb Fryer
S.S. Worktable
Pot Rack
Pot Sink
Pot Rack
S.S. Wall Shelf
S.S. Wall Shelf
Clean Dish Table
Dish Machine
Pre -rinse
Soiled Table Assembly
Pot Shelving
Glass Rack Dolly
Comb. Flat Top Two Burner Range w/ Oven
Refrigerated Equipment Stand
5' Char - broiler
Hot Well
Four Burner Table Top Range
S.S. Worktable w/ Undershelf & Wall Shelf
3' Cheese Melter
EXHIBIT "A"
E,
•
QUANTITY.
DESCRIPTION
3
Three Drawer Chip Warmer
3
Heat Lamp
2 45 lb. Fryer
1
Reach -in Refrigerator
1
78" Worktop Refrigerator
1
Three Well Serving Table
3
27" Worktop Refrigerator
1
Four Well Serving Table
1
48" Worktop Refrigerator
1
Two Well Serving Table
3
Microwave
1
Ticket Carrousel
Lot
Two Tier S.S. Pick -up Shelf
2
Heat Strip
Lot
Pick -up Counter
1
4' Cheese Melter
1
Trash Receptacle
I
Beverage Counter
3
Coffee Maker
1
12" x 26" Ice Pan
1
Tea Urn
2
Tea Machine
1
Soda Tower
1
Ice Bin
2
Water Filler
EXHIBIT "A"
® QUANTITY
DESCRIPTION
1
Beverage Counter
Lot
Dry Goods Storage Shelving
1
Ice Cream Freezer
1
12" x 26" Ice Pan
1
S.S. Window Shelf
1
S.S. Worktable w/ Undershelf
1
66" Stand
1
48" Flat Griddle
1
8' Exhaust Hood
1
48" S.S. Worktable
1
Shelving
Lot
Carbonator on Shelf
Lot
Bag -in -the Box Soda System
1
Ice Machine
1
Ice Machine
Lot
Four Q Storage Shelving
2
Margarita Machine
3
Display Reach -in Refrigerator
I
Beer Dispenser
I
Credit Card Machine
1
Cash Register
2
Trash Receptacle
1
36" Mug Chiller
I
[-land Sink
I
Bar Sink
• EXHIBIT "A"
•
b:k1119 /cxhibila
•
QUANTITY
DESCRIPTION
l
24" Mug Chiller
2
Blender Station
2
Drain Board
2
Soda Gun
2
Jockey Box
1
Ice Bin
1
Wall Shelf
1
Waiter Station Counter
1
Two Drawer Chip Warmer
1
Utensil Rack
2
Conventional Oven
1
Buffalo Chopper
1
Steam Kettle
I
Cleveland
2
Fryer
1
Slicer
EXI-IIBIT "A"
THE STATE OF TEXAS)
® COUNTY OF HARRIS)
FIELD NOTES of a 0.9010 Of an acre tract Of land situated in the
William Scott Upper League, _k.bstract No. 66 Harris
and being out of and a part of a 45.3774 acre tract County, Texas,
Tract 2 in a deed from B.F.B. inc., of land called
November 20, nc to City Of Baytown, dated
1979, and recorded at County Clerk's File Number G
388038 of the Official Public Records Of Real Property Of Harris
County, Texas. This 0.9010 of an acre tract of land is more
particularly described by metes and bounds as follows, to -wit:
NOTE: ALL BEARINGS ARE LAMBERT GRID BEARINGS AND ALL COORDINATES
REFER TO THE STATE PLANE COORDINATE SYSTEM,
SOUTH
DEFINED BY ARTICLE 5300A OF THE REVISED CIVIL STATUTES OF CENTRAL ZONE, AS
OF TEXAS, 1927 DATUM ALL DISTANCES STATE
REFERENCE IS MADE TO PLAT OF EVEN DATE CCOM°ANYIDGSTHZSE!
BOUNDS DESCRIPTION. TES AND
COMMENCING at a 2 inch galvanized iron Pie fond for corner of a 12.34 acre tract Of land onv eyedu o the aCiity eof
Baytown by William Marsh Rice University by
1995, and recorded at County Clerk's File Number 555 March
the
Official Public Records of Real Property
and the North corner of a 10.00 acre tract ofH land scalled yT Texas
in a deed from Frank N.'Angel to Le Roy E. Pearce, dated August 1
1989, and recorded at County Clerk's File N gust 1,
Official Public Records of Real p umber M 310862 of the
This corner is in the South e roperty of Harris County, Texas.
right width varies, and has a right of pay of State Highway No. 146
705,022.15 and X lane Coordinate value of Y
3,269,733.81.
THENCE South 47 deg 49 min 20 sec East with the Southwest line of
said 12.34 acre tract of land and the Northeast line of said 10
acre tract of land, at 489.45 feet found a 2 inch galvanized iron
Pipe in line for the East cornet of said
the Northeast line o 10.00 acre tract and the
North corner of said 45.3774 acre tract of land, continuing on w tract and the Southwest
zt} -�
f said 45.3774 acre
line of said 12.34 acre tract Of land a total distance Of 1:63.43
feet to a point_
THENCE South 42 deg 10 min 40 sec West a distance of 130.96 feet to
a 1. inch iron rod set
land. for the Northwest corner of this tract of
703 This corner has a States Plane Coordinate value of
Y = ,872.71 and X = 3,270,666.92.
THENCE South 66 deg 00 min 00 sec East with the North line of this
tract Of land a distance of 142.02 feet to a 1/2 inch iron rod set
for the Northeast corner Of this tract Of land.
THENCE South 03 deg 08 min 09 sec West with the cast l
tract of land a distance of 183.7 inn rod this
for the most Northern Southeast cor er to a 1/2 inch iron rod set
Of this tract Of land.
EXHIBIT B
PAGE NO. 2 - 0.9010 ACRE TRACT
THENCE South 48 deg 54 min 50 sec West with the Southeast line of
this tract of land a distance of 75.01 feet to a 1/2 inch iron rod
set for the most Southern Southeast corner of this tract of land.
THENCE North 86 deg 05 min 00 sec West with the South line of this
tract of land a distance of 121.09 feet to a 1/2 inch iron rod set
for the Southwest corner of this tract of land.
THENCE North 11 deg 32 min 34 sec East with the West line of this
tract of land a distance of 288.09 feet to the PLACE OF BEGINNING,
containing within said boundaries 0.9010 of an acre of land.
SURVEYED: August 31, 1995
SURVEYOR'S CERTIFICATE
I, Robert L. Hall,Jr. Reg. Professional Land Surveyor No. 1610 do
hereby certify that the foregoing field notes were prepared from a
survey made on the ground on the date shown and that all lines,
boundaries and landmarks are accurately described therein.
14ITNESS my hand and seal at Baytown, Texas, this the 5th., day of
September, A.D., 1 95.
REG. PROFESSIONAL LAND SURVEYOR
NO. 1610
4530LEAS.FDN
..........
BOBEi3T L. HALL, JR.
A
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0 C07tF YR )TTOtt At +D AQR-F_1ENT BY 4 SSE K
THE STATE OF TEXAS X
X KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF HARRIS X
WHEREAS ,_ -TH,E CiTY_,•OF- ,BAY•TOWtr, a municipal corporation, oe
the County of Harris in the State of Texas,' hereinafter called
Borrower, for the purpose of securing a loan from CITIZENS BANX
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 sup 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 leacec
and rantal contract& which have been and which may hereafter be
executed covering all or any part of the real property described
in said.lease, and ell rentals and income thorefrom, such
assignment to become effective only in event of default in the
payment of said note or in tho performance of any covenant
contained in said Lease and Rental Assignment and Security
Agreement.
WHEREAS, the 'underzigned•IZ,eacee is in posceecion of said
real property or a part thereof under and by virtue of a written
1 L'.: .
lease, dated September 12,''7995,'•ontcrcd into by and between THE
CITY OF BAYTOWN, a nunicipal corporation, as Leeaor, and NINFA'S
OF BAYTOWN, INC.','as'Leesco, a' copy of which leaco in hereto
attached and made a part hereof;
WHEREAS,' CITIZENS will not cloeo said loan and advance the
funds thereof 'and accept caid note and Lease and Rental
Assignment unless and' until the un'doroigned Le66Oe confirms
certain repreccntationr hcrotdtorc'modo to it by oaid Borrower
and agreac to certain mattcrr. with respect to Laviceo'o laanchold
rights and ectotc;
EXHIBIT E
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
I. Subject to completion of the premises according to
piano and specificationa, the undersigned Laasao agrees
to accept possession of the premises demised pursuant
to the terns 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 leave.
7. That the aforesaid lease has not been modified, altered
or amended.
4. That there are no offsets or credit9 against rentals,
nor have rentals been prepaid, except as provided by
the lease tern.
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 indebtedneso to CITIZENS remains
unpaid, the undersigned Leaaee agreeo mo follow —
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 CITIZE14S.
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 premisos by fire or other
casualty.
This agreement shall be binding upon and shall inure to the
benefit of thclcgol'repredentativec, heire, CucceGcorz and
occigns, respectively, of the' undersigned Lessee and CITIZENS.
EXECUTED, thin 14th day of September, 1995.
ATTEST:
NINFA'S OF BAYTOWN, INC.
Oy:
-2-