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Ordinance No. 7,597960111 -3
ORDINANCE N0. 7597
® AN ORDINANCE APPROVING THE PROPOSAL AND AUTHORIZING AND
DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST
TO A LEASE AGREEMENT WITH TWO BAYLAND DRIVE, L.C., FOR THE
MANAGEMENT OF THE HARBOR MASTER FACILITY AT BAYLAND
PARK; 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 Lease Agreement with Two Bayland Drive, L.C., for the management of the Harbor
Master Facility at Bayland Park. 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 11th day of January, 1996.
d& (Y. gq4i�
PETE C. ALFAIKO, Mayor
ATTEST:
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR , ity Attorney
49 c:\ council \meetings\january \bayland.II
•
LEASE OF PREMISES
This lease is signed on this day of January, 1996, between The City of Baytown,
Texas, a municipal corporation located in Harris and Chambers Counties, ( "Lessor ") and Two
Bayland Drive, L.C., 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: Two Bayland Drive, L.C.
Premises Improvements: The Premises Improvements shall mean the design, permitting,
construction and equipping of the Premises, including, but not limited to, construction management
fees, the building slab or pad, any special structures such as piers that may be required underneath
the Premises for support. Equipping of the Premises shall include the acquisition of all signs, office
equipment, point of sale cash registers, audio and video equipment, permanent fixtures, permanent
furniture and permanent decor items, more particularly described on Exhibit "A," which is attached
hereto and made a part hereof for all intents and purposes.
Premises Improvements shall not include:
(a) any consumable items including, but not limited to inventory, office supplies
and paper goods, which costs shall be the sole responsibility of the Lessee:
(b) site improvements, including but not limited to curb cuts, entryways. parking
lots, parking lot lighting, sign pylons, sign monuments, walkways, all utility
extensions, sprinkler systems, landscaping materials; and
(c) except for architectural and engineering services, services performed by
consultants, developers or project managers rendered in the guidance or management
of the completion of Lessor's Project Improvements.
Lessor's Project Improvements. Lessor's Project Improvements shall include the
following:
(a) Premises Improvements, as more particularly described in Exhibit "A," and
(b) all project site improvements constructed in accordance with approved architectural
and engineering drawings, which shall include, but not be limited to, curb cuts, entr Ways, all
parking lot lighting, sign pylons, sign monuments, walkways, utility extensions, sprinkler systems,
and landscaping materials.
EXHIBIT A
Architectural and Engineering Fees. Fees paid solely for the preparation of architectural and
engineering plans for Lessor's Project 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.
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.
Jjarbor Master Facility The Harbor Master Facility shall include a ships store, boating
slips, bathhouse, laundromat, and fuel and boat service dock, which will be staffed, operated, and
managed by the Lessee in compliance this Agreement.
Operating Costs: The operating costs shall be comprised of all direct costs associated
with the operation of the slip rental and the bath house portion of the Harbor Master Facility.
ARTICLE 1
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. The development shall be 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:
(i) The building (to be constructed) outlined in red on the Plan which consists
of approximately one thousand five hundred square feet (1,500 ft'); to be located on
the Premises parcel consisting of approximately thirty -nine thousand two hundred
forty -seven square feet (39,247 ft'), together with all improvements, equipment,
fixtures, machinery and appliances located therein or to be erected or installed therein
40 2
0)
by the Lessor (the "Lessor's Project Improvements ") together with the fueling ,tion
and floating docks located on or adjacent to the Premises on which the buildiaa is
situated.
(b) The right for Lessee and its agents, employees, customers, and invitees to iti 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 Bayiand
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 ins tees.
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.
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 three (3) years have elapsed. Immediateh- 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 five (5) years. If Lessee elects to extend the Basic Term for the first adL oval
period of five (5) years, the Lessee may also elect to extend the Basic Term for a second adc—Lonal
period of seven (7) years immediately following the first additional period. If the Lessee el .-ts to
extend the Basic Term for the second additional period of seven (7) years, the Lessee may al&) elect
to extend the Basic Term for a third additional period of five (5) years immediately following the
second additional period. If the Lessee elects to extend the Basic Tenn for the third addonal
period of five (5) years, the Lessee may also elect to extend the Basic Term for a fourth adsdonal
period of five (5) years immediately following the third additional period. If the Lessee elects to
extend the Basic Term for the fourth additional period of five (5) years, the Lessee may also elect
to extend the Basic Term for a fifth additional period of five (5) years immediately follo -wing the
fourth additional period. If Lessee elects to extend the Basic Term for the fifth additional prod of
five (5) years, it the Lessee may also elect to extend the Basic Term for a sixth additional PC', I of
five (5) years immediately following the fifth additional period. In each case, the option may be
exercised by giving Lessor written notice thereof at least one hundred eighty (180) days beor` the
expiration of the applicable term. All of the terms and conditions hereof shall apply dur-!? 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 alter--hions,
3
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 prodded by this paragraph.
Any and all indentations and differences in the conditions of the walls ceiling and floor surfaciess _hall
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 Ntanager, 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, it any,
to exterior walls and exterior roofing caused by the Lessee in the removal of such assets and
property.
2.04 No Rent for or Operation during 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,
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. Furthermore, Lessee understands and agrees that the boat slips shall not be rented for use
by patrons until the Lessee commences the business of the entire Harbor Master Facility Mess
otherwise pre - approved in writing by the City Manager; provided, however, nothing herein shall
prohibit Lessee from leasing the boat slips so long as the commencement date of such Eases
coincides with the Commencement Date of the Basic Term of this lease.
2.05 Base Rent for Basic Te . 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.O5(b)of
this Lease, per Lease Year from and after the Rent Commencement Date, it being undff--,qood
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" beginning on the Rent Commencement Date shall lY the
sum of the cost of Premises Improvements as more fully described in Exhibit "A" :o this
Lease, plus all interest accrued on the cost of Premises Improvements, including, b= not
limited to, the interest which will accrue during the Interim Term; and the fast Leas: Year
of the Lease, amortized over a period of fourteen (14) years, in equal monthly installments
of principal and interest, at an annual interest rate between seven and one - quarter percent
(7.25 %) and eight percent (8.00 %), plus $19,000 per year. The cost of the Pr=rses
Improvements used in the calculation of the Annual Rental shall at no time exceed $27-5,000.
plus
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Five percent (5 %) of the gross monthly slip rental revenues, if and only if the net profit,
which is determined by subtracting the monthly Operating Costs as defined hereinabove
from the monthly gross slip rental revenues received by Lessee, equals or exceeds five
percent (5 %) of the gross slip rental revenue for the applicable month.
First & Second Option Terms. During the first and second option periods, the annual rental sn.--ll be
the same as during the initial term.
During the initial term and any extensions thereof, the Lessee shall along with its payment submit io the
Lessor a financial statement showing the basis for the payment and an affidavit from an officer of the
Lessee verifying that all of the information on the submitted report is true and correct.
(c) During each option term after the second 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 plus five percent (5 %) of the gross monthly slip rental revenues.
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 merclam-dise,
goods, fuel, property and services sold at or from the Premises, exclusive of any and all slip rental
revenues (whether for cash or otherwise) by Lessee. No promotional material given away by Les.,- shall
be included in Gross Sales. Taxes on sales and liquor as well as other 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 c_rahed
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 re--t 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 Lessor or its duly atn=orized
representatives at all reasonable times. Lessee shall not be required to retain any records for an); }-� for
more than five (5) years after the end of that year, but shall not dispose of any such records befor,- that
time. The failure to so preserve the records or to provide them to the Lessor upon request shall ZY cause
for termination of this Agreement at the election of the Lessor. Lessor shall have the right 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 coZ of
the audit shall be paid by Lessee. If the audit shows the rent in fact due exceeds the amount of -=e rent
paid by Lessee, then Lessee shall pay Lessor the amount of the deficiency within ten (10) days .•rtten
notice of such deficiency.
2.06. Gross Lease. Except as otherwise provided for elsewhere in this lease, Lesse,-'s sole
monetary responsibility shall be the timely payment of rent as provided for in this Article 2 of th. 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 (I%) per month.
2.07 No Partnership. 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 Premises. 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 Emergency Management. In the event an emergency is declared by the Lessor, the Lessee
hereby agrees to comply with all orders of the Emergency Management Coordinator or his authorized
representative.
2.10 Construction of Additional Boat Slips. Lessor reserves the right to construct additional boat
slips at any time in which Lessor, in its sole discretion, deems it advisable to do so. Such additional slips
shall become part of the Premises as herein defined; and the Lessor shall be entitled to additional
compensation due to such addition. The amount of such compensation shall be determined at the
completion of the construction of the additional slips by the parties. Both the Lessor and Lessee
understand and agree that they will negotiate such amount in good faith and that such amount shall not
be less than the amount which the Lessor would receive based on the formula specified in Section 2.05
(b) or (c), whichever is greater.
2.11 Boat Slips for Use by Lessor's Emergency Vessels. Lessor reserves the right to use at no
cost or expense the number of boat slips necessary as determined at the sole discretion of the Lessor to
accommodate its emergency vessels. As an alternative to the use of such slips, the Lessor may, again at
its sole option, build slips for such purposes on the Premises or attached thereto or to any improvement
thereon, including, but not limited to the boat slips and walkways built at the time of this lease or which
may hereinafter be constructed. The election of any one option expounded above shall not constitute a
waiver for the Lessor to take advantage of the other option at a later date.
ARTICLE 3
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 Harbor Master Facility which
shall include the operation and management of a ships store consisting of the sale of food, beverages and
miscellaneous items for off - premises consumption, a fueling station and the floating docks /slip rentals.
Any additional use not expressly mentioned herein must be approved in writing by the City Manager
prior to the commencement of such use.
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3.02 Operation and Maintenance Tasks. In the operation and maintenance of the Harbor
Master Facility, the Lessee hereby understands and agrees to perform all of the following tasks and that
such tasks are the sole responsibility of the Lessee:
(a) to maintain facilities in a clean and orderly condition at all times;
(b) to ensure all equipment, shelving, dispensers and displays are in good repair and are
clean;
(c) to restock all sales shelves, displays and tanks when inventory falls to twenty-five percent
(25 %) of capacity;
(d) to purchase and maintain all supplies and inventory;
(e) to implement a marketing program geared to attract the general boating public to the ships
store and marina;
(f) to develop policies and procedures, with approval of the City Manager, governing
employee and customer activities and behaviors;
(g) to implement and enforce the policies referred to in section 3.02(f);
(h) to notify the City Manager without delay in writing of any incident regarding problems
with boat owners, visitors, or the general public;
(i) to prohibit itself and all third parties from undertaking major repairs of any boat that may
result in unsightly or unsafe conditions in and around the marina and Harbor Master
Facility;
(j) to work, in conjunction with the Lessor to prevent damage to identified wetland habitats
by intrusion of the general public or other man-made threats;
(k) to develop and implement plans for quick and effective response and control of any threat
to the environment, including, but not limited to, the containment of spills as well as
notification to the City Manager as well as all appropriate agencies;
(1) to develop all legal documents, rules and policies regarding the rental of boat slips;
(m) to notify the City Manager without delay of any maintenance problems or equipment
failures that require action by the Lessor;
(n) to develop and implement a system for the satisfactory disposition of boat owners'
complaints and grievances;
(o) to manage and handle all complaints regarding the Harbor Master Facility, its operations
and its use and to routinely apprise the City Manager of such complaints; and
(p) to install and operate a storm and emergency warning system that conforms to standard
marina practices.
3.03 Maintenance and Utility Responsibilities. Lessee will perform all janitorial and light
maintenance functions at the Harbor Master Facility, which shall include, but not be limited to routine
maintenance of docks, fueling station and ships store, and all maintenance pertaining to utility and cable
connections at each boat slip. At the ships store, the Lessee shall maintain at all times an adequate
inventory of goods. Lessee shall be responsible for all utility costs associated with the Harbor Master
Facility.
0
• 3.04 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, regulatio -a or
licensing requirement.
3.05 Lessor's Covenant of Title and Quiet Enjoyment. 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 Lesso. has
good, valid and marketable title to the Premises.
3.06 Successors and Assigns. The covenants and agreements herein contained shall run Wlii L the
Bayland Development and the Premises and shall be binding upon and inure to the benefit of the p-des
and their respective heirs, legal representatives, successors and assigns.
3.07 Parking. The Plan shows the Premises and the rest of the Bayland Development. L_-sor
agrees and warrants that Lessee and its agents, employees, customers, and invitees shall have the -light
(together with the other tenants of the Bayland Development and their respective employees, invitee= and
customers and the general public) to use all of the parking areas and other common areas shown o_ 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 cha-ged
from time to time at the sole option of the City Manager.
3.08 Hours of Business. Lessee shall continuously during the entire term of the Lease and
each extension thereof conduct and carry on the operations of a first -class Harbor Master Faciliz- as
above - described on the Premises which is designated for such purpose and shall keep the Premises omen
for business and cause Lessee's business to be conducted therein as necessary to meet the ler_1 of
demand for the facilities and services. If the City Manager in his sole reasonably -based discr-=don
determines that the hours of operation, the level of services, and the availability of the facilities an= the
services therein offered are not adequate to meet the demand for the same, the Lessee agrees that such
services and operations identified by the City Manager as being inadequate will be increased immedia-ely
to a level satisfactory to the City. However, this provision shall not apply if the Premises shots be
closed and the business of Lessee temporarily discontinued therein (i) on account of strikes, lockom or
similar causes beyond the control of Lessee or (ii) in connection with any renovation or alteration c: the
Premises, which such renovation or alteration and the time allotted for the same has been previcasly
approved in writing by the Lessor; provided, that such closure shall be only for the period of dme
necessary to complete the renovation or alteration. Lessee shall to the satisfaction of the Lessor key the
Premises adequately stocked with merchandise and with sufficient sales personnel to care fc* the
patronage, and to conduct said business in accordance with sound business practice.
In the event of a breach by the Lessee of any of the conditions contained in this paragrap= the
Lessor shall have, in addition to any and all remedies at law or in equity, the right at its sole opf.: -,n to
collect not only the minimum monthly rent, which shall be deemed to be the largest monthly rents] laid
by the Lessee prior to the date of the breach, but additional rent at the rate of one - thirtieth (1 /30th) o; such
• 8
minimum monthly rent for each and every calendar day that the Lessee fails to conduct its busir:ss as
40 herein provided.
ARTICLE 4
Improvements
4.01 Improvements. The Lessor shall proceed to install the Lessor's Project 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. Lessor shall hire an experienced architect. 1-1-ssor
shall have the right, in its sole discretion, to hire and retain an engineering firm to provide such serices.
Within five (5) days after the date of this Agreement, architectural and engineering work on the &sign
of the Premises shall begin. All architectural and engineering shall be completed and real -r for
permitting ninety (90) days after such work has begun. Lessor and Lessee agree to cooperse in
providing standards, specifications and guidance to the architect and engineer regarding the design needs
of the Harbor Master Facility.
4.03 Commencement, of Construction. No later than ninety (90) days after the compleion of
architectural and engineering drawings including any revisions thereof, Lessor shall commence
construction and thereafter proceed without undue delays to complete construction and aui1orize
occupancy of the premises by Lessee.
4.04 Warranty_ Claims. Lessor shall assign to Lessee all warranty, guarantee and similar °�ghts
that Lessor may have with respect to: (a) the Lessor's Capital Improvements to the extent that they date
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 Lesse-- may
reasonably require. Lessee understands and agrees that Lessee is obligated to repair and repla_e the
personalty which the Lessor initially purchases. Such repaired and/or replaced property shall at all dines
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 subten =ts or
licensees, which such property has not been provided or financed by Lessor, shall not beco =e the
property of Lessor and may be removed by Lessee or Lessee's subtenants or licensees. Howeti.r, all
fixtures (trade or otherwise), machinery, equipment, furniture, and permanent improvements �D the
building and other property of whatever kind and nature which are affixed in any way to the Prises
may not be removed by Lessee or Lessee's subtenants or licensees, for such improvements purcha_,dd by
the Lessee shall be and remain the Lessor's property.
0 9
4.06 Lessor's Property. Lessee agrees that all fixtures (trade or otherwise), machinery,
,10 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 finances by
Lessor, shall not become the property of Lessee and may not be removed by Lessee or Lee'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, except when such signage relates to safety is`-ues
of the Lessee, its employees, agents, patrons, invitees, etc.
4.08 Lessor to Maintain Utility Connections. Lessor agrees to maintain necessary main, coE�fuits
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 Lessor to Maintain Fuel Facilities and Lift Station. Lessor will maintain the fuel facUities
located on the premises and will provide a pump for sewage.
4.10 Lessor to Realign the Dock System, Lessor warrants that it will realign the dock s%,-tem
once a year or as otherwise may be required as determined at the sole discretion of the City Mater.
ARTICLE 5
Maintenance, Repairs and Alterations
5.01 By Lessoi. Lessor, at its sole cost and expense, shall maintain and repair the foundatie- the
building structure, exterior walls, roof, exterior windows, exterior doors and exterior mounted HV _aC
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 Harbor Master Facilities and throughout the Bz% -Tand
Development, including the daily expenses associated with cleaning and maintenance of the pariz`; .? lot
as well as maintenance of parking lot lighting. At all times during the term of this Lease, Lessor _hall
make reasonable efforts to fix or repair any defect in the building, structure, exterior walls, roof, e�ior
windows and exterior doors of the Premises upon receipt of written notice from Lessee that such meeairs
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 fm labor
and materials. In the event that a lien is filed against the Premises for work completed by a coa—i-actor
or subcontractor, Lessee shall immediately use its best effort to remove such lien within ten (10) says
after the lien is placed on the property. In the event that a lien remains on the property af.- 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 fro= the
Lessor's property. Such bonds must be submitted to and approved by the Lessor in order for the L -Ssee
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 altera::ons,
repairs, and additions within the interior of the building on the Premises as may be permitted by laNA,, and
regulations in force at the time, as long as such alternations, repairs, and additions do not strucn roily
weaken the building or render the same unsafe. Lessee shall, at all times, hold Lessor harmless fro= 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 mare by
the Lessee and which are ordered by a governmental authority after the building or improve =ents
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 c'this
Lease and any extensions thereof, commercial general liability insurance with an insurance co =.-
licensed to do business in the State of Texas who has an AM Best Rating of A or higher with lim.2s of
$1,000,000 per occurrence and $2,000,000 aggregate. Lessee shall at all times during the term ofthis
Agreement and any extension thereof maintain marina operators legal liability insurance. In all lia�dity
policies as may be 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 mainta'n the
insurance required hereunder under a blanket policy only if such policy provides the protection f Or the
Premises as required in this paragraph, no aggregate policy for multiple premises shall be allowed. tnless
such aggregate policy covers the restaurant and harbor master facilities located on the Bayland Park
properties owned by the Lessor and is approved by the City Manager at his sole discretion. All insnce
policies of the Lessee must be written on an occurrence basis. Additionally, the Lessee's comr=cial
general liability insurance shall include premises and operations endorsements as well as package rquor
liability endorsements, if applicable. All requirements of Texas law regarding the provision of Wcckers'
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 NVorkers' Compensation
Insurance policy approved by the Lessor or pursuant to Lessee's non - subscriber status. Such pcscies
shall contain a waiver of subrogation in favor of the Lessor and all of the applicable above- refer_aced
requirements shall be required for such policy. Fidelity bonds in minimum amounts of $250,000 ;hall
be required to protect against loss from embezzlement and fraud or other misappropriations or all
employees handling funds of the Lessor. Lessee shall furnish Lessor copies of certificates evidencing
these policies prior to or simultaneously with the Lessor's issuance of the certificate of oeeupanc: - All
• insurance policies provided by the Lessor as required herein will be secondary policies and -v,- l be
subordinate to the Lessee's insurance policies as required herein.
6.02 Eire Extended and Liability Coverage. Lessor agrees that at all time during the term i-1 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 replac--ment
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 written notice to Lessee in event of any pending ch.= e 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 fir t, an
unavoidable accident or other casualty, Lessor shall cause the damage to be repaired. Lessor shA 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 Wines
during the term of this Lease and any extensions thereof. r
6.05 Condemnation. If the whole of the Leased Premises shall be acquired or condemed 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 th_ date.
6.06 Partial Condemnation. If any part of the Premises shall be acquired or condemed 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- ha the
event of a partial taking or condemnation that is not extensive enough to render the Premises in bz!� the
Lessee's and Lessor's opinions unsuitable for the business of the Lessee, then the term of this lea` 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 ren:t= 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 cf such
condemnation less the portion taken and, if the size of the Premises has been reduced by the tales or
condemnation, the rent shall be reduced proportionately.
6.07 SharinQ Award. In the event of any condemnation, whether whole or partial, the Less shall
be entitled to receive any monies expressly apportioned by a court of competent jurisdiction in i:= anal
judgment. If no amount is so apportioned, the Lessee shall be entitled to nothing under the term of this
Lease.
• 12
6.08 Slip Rental Agreements. Slip rental agreements shall be in a standard form which_shA be
.10 preapproved by the City Manager. No change or modification to such form may be made unless
preapproved by the City Manager. Lessee shall require in all such agreements liability insurance in
amounts acceptable to the City Manager of all persons who rent, lease or otherwise use the boas Slips.
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 leaKhold
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 anique
to the Harbor Master Facility's concept, equipment, furniture and merchandise located in or upin the
Premises, which has not been provided or financed by Lessor. In such event, or events, Lessor hemby
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 less r 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 index: ness
simultaneously with service on Lessee a duplicate of any and all notices or demands &,--en by
Lessor to Lessee from time to time. Such notices shall be given in the manner and be sul -Nect 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 perforrzmce of
any of the Lessee's covenants and agreements hereunder shall attach to or be imposed up-in any
mortgagee, trustee under any trust deed, or any holder of any indebtedness secured iu- any
mortgage or security agreement upon such personal property, all such liability being hereby
expressly waived by Lessor.
0 13
8.02 Lessor's Right to Sell or Mortgagee. Lessor reserves the right to sell, assign, trans--`r or
convey its interest in this Lease and the premises without prior consent of Lessee. and Lessor shall fs -,her
have the right to encumber and mortgage the premises and assign rentals payable by Lessee to Les`or to
any mortgagee or other secured party who obtains an interest in the land and buildings of whim the
premises are a part or upon any buildings hereafter placed upon land of which premises form ?_ oart;
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 ;fa-tity
standing in the place of Lessor as a result of any such sale, assignment, transfer, conveyance, or mom zage
shall assume the duties and obligations to Lessee as provided in this Lease as if such person or taitity
were Lessor herein.
8.03 Statement of Performance. Lessor agrees to furnish Lessee, and any of the Les,-:°e's
mortgagees, upon written request therefore, a statement wherein the City Manager shall, under �,ath,
acknowledge that as of the date of such statement Lessee, to the best of the Lessor's knowledg:t. has
performed and observed all of the covenants and conditions herein stated to be performed and obst7ved
by Lessee, and that to the best of the Lessor's knowledge as of said date the leasehold estate l---,by
created and granted to Lessee is free of all defaults hereunder (or if defaults exist specifying the pure
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 h=ein
or any statement subsequently issued hereby shall-waive any of the Lessor's rights to enforce any ct 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 Less_:
(a) Fails to pay any installment of rent or make any other payment of mone, due
hereunder within seventy -two (72) hours after written notice of the failure shall have been rrv-en
to Lessee, or
(b) Defaults in the performance of any other obligation imposed upon Lessee heremder
and does not cure the default within fifteen (15) days after written notice describing the 6=7:liult
in reasonable detail shall have been given Lessee (or, if the Lessor in its sole discrwon,
determines that the default cannot reasonably be cured «ithin the fifteen (15) day per il, if
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 fthe
Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insohmcy,
then the Lessor may immediately without any notice terminate this lease, or
• 14
(d) Makes any assignment, then Lessor may immediately and without notice terrami ate
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 sh-11 s -11 aive
the Lessee a written notice specifying the default and the Lessee shall have the following periods ofdme
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-
(i) The Lessor is required to give the Lessee notice of nonpayment of ren Ehree
(3) times in any twelve month period, and
(ii) Each of the notices contains a reminder of the substance of this szaibpart
9.02(a), thereafter Lessor shall no longer be obligated to give Lessee notice of a &fault
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 whe—,: the
lease is subject to immediate termination by the Lessor, the default must be cured within Luleen
(15) days from the receipt of the notice or, if the default is not reasonably susceptible efbeing
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 whe_ % r the
default is reasonably susceptible to being cured within the above - referenced time f =- a and
whether the Lessee is commencing curative work with diligence shall be made at the rea -`amble
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 Lessee shall become immediately liable for all amount_ cue or
which would have become due under the term of the lease or any extension thereof. Furthermore_ M 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 right under
paragraph 9.06, below:
(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 elsewhe-° s the
cost of, and for the account of, Lessee, all without service of notice or resort to legal proo2 s and
without being deemed guilty of trespass, or becoming liable for any loss or damage whch may
be occasioned thereby. Such re- entering and removal of persons or property from the Lensed
Premises shall not be deemed to preclude Lessor from exercising any other options grad by
this lease.
(a 15
(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 tern of this Iease. 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
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
0 16
in part) the Lessee may prevent the Lessor from exercising the rights or remedies set forth in this Stction
9 by taking the following steps:
(a) The Lessee shall remedy that part of the default as to which there is no dispute N %ithin
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 or in
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 As i nme t and Subleging. 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. Notwithstandiri-a 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 %;- itten
communication and shall be deemed to be duly served and given for all purposes:
(a) To Lessor when received at:
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, Texas 77522
Fax: 420 -6586
0 17
® (b) To Lessee when received at Lessee's office:
Two Bayland Drive, L.C.
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 held to include the plural when the sense
requires.
10.05 Headines. 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 requi lld 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 AmicIe 9
hereof, all rent paid but not earned shall not be refunded.
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 stmzrior
governmental authority, weather conditions, floods, riots, rebellion, sabotage, or any other circum_¢3nces
for which it is not responsible or which is not in its control, and the time for performance sh Il be
automatically extended by the period the party is prevented from performing its obligations herder.
0 18
10.09 fictive 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 a Memorandum of this Lease
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 Feed. Any other provision of this Lease notwithstanding, upon issuance
of a final judgment 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 judgment 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 Law. 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 and conditions prevailing in this localihy. 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 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 «ill 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.
0 19
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 x % -ters
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 Aith 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 hi.to,
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 indemity
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 cNith
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 or 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 Le -e's
obligations under this agreement, including, but not limited to, operating a first -class Harbor NUster
Facility 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 Agree -went,
which shall continue in full force and effect.
10.21 No Third Party Beneficiaries, This Agreement shall not bestow any rights upon any bird
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 and
perform this Agreement, and the person signing this Agreement on behalf of each party has been prc7.erly
0 20
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.
LESSEE
(Date)
Two Bayland Drive, L.C.
GUARANTOR
(Date)
Ninfa's, Inc.
LESSOR
PETE C. ALFARO, Mayor (Date)
City of Baytown, Texas
is 21
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 Two Bayland Drive, L.C., on behalf of such corporation, known-,, me
to be the person whose name is subscribed to the foregoing instrument and acknowledged to me mat
he executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of
STATE OF TEXAS §
COUNTY OF HARRIS §
1:
THE STATE OF TEXAS)
COUNTY OF HARRIS)
FIELD NOTES of a 0.9010 of an acre tract of land situated i~ the
William Scott, Upper League, Abstract No..66, Harris County, Texas,
and being out of and a part of a 45.3774 acre tract of land called
Tract 2 in a deed from B.F.B., Inc., to City of Baytown, dated
November 20. 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 COORDI?:ATES
REFER TO THE STATE PLANE COORDINATE SYSTEM, SOUTH CENTRAL ZONE, AS
DEFINED BY ARTICLE 5300A OF THE REVISED CIVIL STATUTES OF THE STATE
OF TEXAS, 1927 DATUM. ALL DISTANCES ARE ACTUAL DISTANCES.
REFERENCE IS MADE TO PLAT OF EVEN DATE ACCOMPANYING THIS METES AND
BOUNDS DESCRIPTION.
COMMENCING at a 2 inch galvanized iron pipe found for the West
corner of a 12.34 acre tract of land conveyed to the City of
Baytown by William Marsh Rice University by deed dated March 31,
1995, and recorded at County Clerk's File Number R 354555 of the
Official Public Records of Real Property of Harris County, Texas
and the North corner of a 10.00 acre tract of land called Tract 1
in a deed from Frank N. Angel to Le Roy E. Pearce, dated August 1,
1989, and recorded at County Clerk's File Number M 310862 of the
Official Public Records of Real Property of Harris County, Texas.
This corner is in the South right of way of State Highway No. 146,
right width varies, and has a State Plane Coordinate Value of Y
705,022.15 and X = 3,269,733.81.
THENCE South 47 deg 49 min 20 sec East with the Southwest lire 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 corner of said 10.00 acre tract and the
North corner of said 45.3774 acre tract of land, continuing on with
the Northeast line of said 45.3774 acre tract and the Southwest
line of said 12.34 acre tract of land a total distance of 1463.43
feet to a point.
THENCE South 42 deg 10 min 40 sec West a distance of 180.96 fee= to
a 1/2 inch iron rod set for the Northwest corner of this tract of
land. This corner has a State Plane Coordinate Value of
Y = 703, 872. 7.1 -and X =.312701666-92.
THENCE South 66 deg 00 min 00 sec East with the North line of :his
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 East line of phis
tract of land a distance of 183.74 feet to a 1/2 inch iron rc set
for the most Northern Southeast corner 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. Hal1,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.
WITNESS my hand and seal at Baytown, Texas, this the 5th., day of
September, A.D., 95.
REG. PROFESSIONAL LAND SURVEYOR
NO. 1610
4530LEAS.FDN
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�ROSEflT•L. HALL, -JR.�
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