Ordinance No. 7,663960328 -1
ORDINANCE NO. 7663
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
® TEXAS, REPEALING ORDINANCE NO. 7597 PASSED ON JANUARY 11, 1996;
AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY
CLERK TO ATTEST TO A LEASE AGREEMENT W1TH TWO BAYLAND DRIVE,
L.C., FOR THE MANAGEMENT OF THE SHIP'S STORE AND MARINA
FACILITY AT BAYLAND PARK; AND PROVIDING FOR THE EFFECTIVE-DATE
THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby repeals Ordinance No.
7597 passed on January 11, 1996.
Section 2: That the City Council of the City of Baytown, Texas, hereby 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 Ship's Store and Marina 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 3: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and-PASSED by the affirmative vote of the City Council of the City
of Baytown this the 28th day of March, 1996.
" e. a4-4_�
PETE C. ALFAR , Mayor
ATTEST:
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
c: \counci I\m eetings\march\2 bayland.28
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LEASE OF PREMISES
This lease is signed on this day of March, 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
es r: 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 stab 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, entryways, 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 of the restaurant
facility, which is leased to One Bayland Drive, L.C., and is nearby to the premises herein opens for
business or forty -five (45) days after the Lessor issues the certificate of occupancy for the Restaurant
facility.
Rent Commencement Date: Exactly one month 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. References to "term"
herein shall, unless stated otherwise, include the Basic and Interim Term and any extensions thereof
Harbor 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. The Lessor hereby rents and leases unto the Lessee, and the Lessee hereby
takes and hires from the Lessor, a portion of the land of the Bayland Development described as
follows:
(a) The "Premises," which consists of:
(1) 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
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the Premises parcel consisting of approximately thirty -nine thousand two hundred
forty -seven square feet (j9,247 ft'-), together with all improvements, equipment,
fixtures, machinery and appliances located therein or to be erected or installed therein
by the Lessor (the "Lessor's Project Improvements ") together with the fueling station
and floating docks located on or adjacent to the Premises on which the building is
situated.
(b) The right of the 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.
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 five (5) years have elapsed. Immediately after the
Lease Commencement Date, the Lessor and the Lessee may enter into an agreement in recordable
form setting forth such date.
2.02 Right of Extension. The Lessee is granted the right to extend the Basic Term for an
additional period of five (5) years. If the Lessee elects to extend the Basic Term for the first
additional period of five (5) years, the Lessee may also elect to extend the Basic Term for a second
additional period of five (5) years immediately following the first additional period. If the Lessee
elects to extend the Basic Term for the second additional period of five (5) years, the Lessee may
also 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 Term for the third
additional period of five (5) years, the Lessee may also elect to extend the Basic Term for a fourth
additional 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 following
the fourth additional period. If the Lessee elects to extend the Basic Term for the fifth additional
period of five (5) years, the Lessee may also elect to extend the Basic Term for a sixth additional
period of five (5) years immediately following the fifth additional period. If the Lessee elects to
extend the Basic Term for the sixth additional period of five (5) years, the Lessee may also elect to
extend the Basic Term for a seventh additional period of five (5) years immediately following the
sixth additional period. In each case, the option may be exercised by giving the Lessor written notice
thereof at least one hundred eighty (180) days before the expiration of the applicable term. All of the
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terms and conditions hereof shall apply during the additionai term(s), unless otherwise modified in
writing by the parties hereto.
2.03 Removal of Lessee's Property. Upon expiration of this Lease, the 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 or Operation during Interim Term. During the Interim Term and for exactly
one (1) month after the Lease Commencement Date, the Lessee shall not be obligated for any rental,
or other payments due under this lease. However, the Lessee understands and agrees that the debt
service payment for the first month will be capitalized and included in calculating the rental
payments herein. Furthermore, the 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 unless otherwise pre - approved in writing by the City Manager; provided, however, nothing
herein shall prohibit the Lessee from leasing the boat slips so long as the commencement date of
such leases coincides with the Commencement Date of the Basic Term of this lease.
2.05 Base Rent for Basic Term. Starting exactly one (1) month after the Lease
Commencement Date and during the Basic Term and each extension thereof, the Lessee shall pay
to the 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 month after the Lease Commencement Date.
(b) The "Annual Rental" beginning on the Rent Commencement Date
shall be the sum of the cost of Premises Improvements as more fully
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described in Exhibit "A" to this Lease, plus all interest accrued on the cost of
Premises Improvements, including, but not limited to, the interest which will accrue
during the Interim Term, and the first month of the Lease, amortized over a period
of one hundred seventy-nine (179) months, 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 the following:
YEAR OF 1ST'`
AMOUNT
JTERIvi
OWED
1
$19,000
2
$26,315
3
$26,315
4
$26,315
5
$26,315
The cost of the Premises Improvements used in the calculation of the Annual
Rental shall at no time exceed $300,000.
For and in consideration of the Lessor's entering into this Lease and performing
services appurtenant thereto, the Lessee and the Guarantor understand and agree that
the Lessee and the Guarantor are obligated, jointly and severally, to pay to the Lessor
the following Termination/Cancellation Fee should the lease expire or be terminated
by either party prior to the expiration of ten (10) years after the Lease
Commencement Date, which amount shall be immediately due and owing upon
expiration of the initial term or termination hereof, whichever is earlier:
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Year.'of
TerminatiotV .
Termination or
Cancellation
Expiratton of
Fee':
1
$141,000
2
138,222.50
3
127,928.63
4
116,888.46
5
1 05,047.87
6
92,348.84
7
76,894.13
8
60,318.96
9
42,542.08
10
23,476.38
If the initial term of the lease expires and the Lessee elects not to extend the
Basic Term for the first additional period of five (5) years, the Lessee agrees to pay
the Lessor $92,348.84 upon expiration of the initial term. However, if the lease is
terminated during a lease year, the Lessee understands and agrees to pay the Lessor
the Term 1 nati on/Cancel lati on Fee attributable to the year in which the lease is
terminated. For example, should the lease be terminated one (1) year and eleven (11)
months after the Lease Commencement Date, the Lessee shall pay a
Termination/Cancellation Fee of $138,222.50 to the Lessor. The Lessee and the
Lessor hereby irrevocably agree that should the Lessee or Lessor fail to satisfactori ly
perform the terms and conditions of this Agreement during the Basic Term and the
First Option Term, the Lessor will sustain damages in the amount expressed
hereinabove. Both parties agree, the above - enumerated Termination/Cancellation
Fees are reasonable in light of (i) the anticipated or actual harm caused should the
Lessee fail to fully perform its obligations for a period of ten (10) years after the
Lease Commencement Date, (ii) the difficulties of proof of loss, and (iii) the
inconvenience or non - feasibility of otherwise obtaining an adequate remedy. The
Lessee acknowledges that the above - referenced amounts shall be in addition to any
other remedy to which the Lessor may show itself entitled in law or in equity.
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If the Term 1nation/Cancellation Fee is not paid as and when due and is placed in the
® hands of an attorney for collection or is collected through a bankruptcy or other court,
the undersigned promises to pay fifteen percent (15 %) additional on the amount due
and owing at the time of expiration or termination. It is expressly acknowledged and
agreed by all parties hereto that this provision concerning the amounts to be paid at
the expiration or termination of this lease prior to- the expiration of ten '(10) years
from the Lease Commencement Date shall survive the expiration of the remainder
of this Agreement.
First Option Term. During the first option period, the annual rental shall be the same
as during the second year of the initial term plus $1,835plus 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 the Lessee, equals or exceeds five percent (5 %)
of the gross slip rental revenue for the applicable month.
Second Option Term. During the second option period, the annual rental shall be the
sum of the cost of Premises Improvements, plus all interest accrued on the cost of
Premises Improvements, including, but not limited to, the interest which will accrue
during the Interim Term, and the first month of the Lease, amortized over a period
of one hundred seventy -nine (179) months, 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 $6,000 per year; plus 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 the Lessee, equals or exceeds five percent (5 %)
of the gross slip rental revenue for the applicable month.
During the first option term as well as during the second option term and any extensions
thereof, the Lessee shall along with its payment submit to 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, the Lessee
shall pay to the Lessor, as all rent due and owing, four percent (4 %) of the Gross Sales
(defined below) made by the Lessee in each month of the applicable option term, plus
$6,000 per year, 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 merchandise, goods, fuel, property and services sold at or from the Premises,
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exclusive of any and all slip rental revenues (whether for cash or otherwise) by the Lessee.
® No promotional material given away by the Lessee shall be included in Gross Sales.
Taxes on sales and liquor as well as other similar taxes and discounts received by the
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,
the Lessee shall furnish to the Lessor a statement certified by an officer of the 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 the Lessee will either pay any deficiency or receive an offset from
percentage rent the following month. The 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 the Lessor or its duly authorized representatives at all
reasonable times. The Lessee shall not be required to retain any records for any year for
more than five (5) years after the end of that year, but shall not dispose of any such
records before that time. The failure to so preserve the records or to provide them to the
Lessor upon request shall be cause for termination of this Agreement at the election of the
Lessor. The Lessor shall have the right at any time to audit any Annual Statement and all
of the books and records supporting any Annual Statement. The Lessee shall make all of
these records readily available for the examination. If any audit by the 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 the Lessee. If the audit shows the rent in fact
due exceeds the amount of the rent paid by the Lessee, then the Lessee shall pay the
Lessor the amount of the deficiency within ten (10) days written notice of such deficiency.
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 No Partnership. Nothing herein contained shall be construed or held to make the Lessor and
the Lessee partners in the conduct of any business. The relationship between the parties hereto is and
shall at all time remain that of the Lessor and the Lessee.
2.08 Right to Inspect Premise, 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 EmergencManagement, 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.
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2.10 Construction of Additional Boat Slips. The Lessor reserves the right to construct additional
® boat slips at any time in which the 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 the 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 Ememency Vessels. The 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. The Lessee shall not use the Premises for any disorderly or unlawful purpose. The
Premises shall be used by the 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.
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;
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(f)
to develop policies and procedures, with approval of the City Manager, governing
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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;
(1)
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. The 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. The Lessee shall be responsible for all utility costs associated with the Harbor Master
Facility.
3.04 Conformance to Law. In conducting its business on the Premises, the Lessee agrees to
conform to all applicable state, federal and local laws, ordinances, regulations and licensing requirements.
The Lessee shall have the right to contest in good faith and by appropriate means any such law, regulation
or licensing requirement.
3.05 Lessor's Covenant of Title and Quiet Enjoyment . The 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.
3.06 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.
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3.07 Parkin 2. The Plan shows the Premises and the rest of the Bayland Development. The
•Lessor agrees and warrants that the 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. The Lessee understands and agrees that throughout
the term of this lease, and any option terms hereof, the parkin_ g areas and the modes of ingress and egress
may be changed from-time to-time at the sole option of the City Manager.
3.08 Hours of Business. The 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 Facility as
above - described on the Premises which is designated for such purpose and shall keep the Premises open
for business and cause the Lessee's business to be conducted therein as necessary to meet the level of
demand for the facilities and services. If the City Manager in his sole reasonably -based discretion
determines that the hours of operation, the level of services, and the availability of the facilities and 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 immediately
to a level satisfactory to the City. However, this provision shall not apply if the Premises should be
closed and the business of the Lessee temporarily discontinued therein (1) on account of strikes, lockouts
or similar causes beyond the control of the Lessee or (ii) in connection with any renovation or alteration
of the Premises, which such renovation or alteration and the time allotted for the same has been
previously approved in writing by the Lessor; provided, that such closure shall be only for the period of
time necessary to complete the renovation or alteration. The Lessee shall to the satisfaction of the Lessor
keep the Premises adequately stocked with merchandise and with sufficient sales personnel to care for
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 section, the Lessor
shall have, in addition to any and all remedies at law or in equity, the right at its sole option to collect not
only the minimum monthly rent, which shall be deemed to be the largest monthly rental paid by the
Lessee prior to the date of the breach, but additional rent at the rate of one- thirtieth (1 /30th) of such
minimum monthly rent for each and every calendar day that the Lessee fails to conduct its business as
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. The Lessor shall hire an experienced architect.
Lessor shall have the right, in its sole discretion, to hire and retain an engineering firm to provide such
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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. The Lessor and the Lessee agree to cooperate
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 completion of
architectural and engineering drawings including any revisions thereof, the Lessor shall commence
construction and thereafter proceed without undue delays to complete construction and authorize
occupancy of the premises by the Lessee.
4.04 Warranty Claims. The Lessor shall assign to the Lessee all warranty, guarantee and similar
rights that the Lessor may have with respect to: (a) the Lessor's Capital Improvements to the extent that
they relate to parts of the premises that the Lessee is obligated to maintain hereunder, and (b) the Lessee's
Improvements constructed or installed by the Lessor's contractors. The assignment will be in such form
as the Lessee may reasonably require. The Lessee understands and agrees that the 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. The 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 the Lessee's subtenants
or licensees, which such property has not been provided or financed by the Lessor, shall not become the
property of the Lessor and may be removed by the Lessee or the 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 may not be removed by the Lessee or the Lessee's subtenants or licensees, for such
improvements purchased by the Lessee shall be and remain the Lessor's property.
4.06 Lessor's Prosy. The 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 the Lessee's subtenants or licensees, which such property has been provided or financed
by the Lessor, shall not become the property of the Lessee and may not be removed by the Lessee or the
Lessee's subtenants or licensees at any time during the term of the Lease or any option terms hereof.
4.07 &=. . 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. The Lessor's approval of signage shall be required, except when such signage relates to safety
issues of the Lessee, its employees, agents, patrons, invitees, etc.
4.08 Lessor to Maintain Utility Connections. The Lessor agrees to maintain necessary main,
conduits and other utility lines necessary to supply water, secondary power, and sewerage service to the
Premises. The 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.
• 12
4.09 Lessor to Maintain Fuel Facilities and Lift Station. The Lessor will maintain the fuel
sofacilities located on the premises and will provide a pump for sewage.
4.10 Lessor to Realign the Dock System. The Lessor warrants that it will realign the dock system
once a year or as otherwise may be required as determined at'the sole discretion of the City Manager.
ARTICLE 5
Maintenance, Repairs and Alterations
5.01 By Lessor. The 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. The 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
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, the
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 the Lessee
that such repairs are necessary.
5.02 By Lessee. The 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 the 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, the 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 alien remains on the property after
the expiration of ten days, the 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, the
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. The Lessee shall, at all times, hold the Lessor
harmless from the payment for any work performed by the 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.
• 13
ARTICLE 6
• Insurance, Damage, and Condemnation
6.01 Lessee's Insurance. The 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. The Lessee shall at all times during the term of
this Agreement and any extension thereof maintain marina operators legal liability insurance in minimum
limits of $1,000,000 per occurrence and $2,000,000 aggregate. In.all liability 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. The 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, unless 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 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 package liquor liability
endorsements, if applicable. 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 the 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. Fidelity bonds in minimum amounts of $250,000 shall
be required to protect against loss from embezzlement and fraud or other misappropriations for all
employees handling funds of the Lessor. The Lessee shall furnish the 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.
6.02 Fire Extended and Liability Coverage. The 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. The Lessor agrees to deposit a copy of all insurance policies or certificates showing such
insurance in force with the Lessee during the term of this lease upon request. The policy or cerflficates
shall also include a provision for thirty (30) days written notice to the Lessee in event of any pending
change in or cancellation of the insurance. The 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, the Lessor shall cause the damage to be repaired. The Lessor
shall not be liable for any damage or destruction to the property on the Premises owned by the Lessee
under the terms hereof or belonging to third parties, or for the loss of any such property from the Premises
by theft or otherwise.
• 14
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 the 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 the 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 Sharin2 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.
6.08 Slip Rental Agreements. Slip rental agreements shall be in a standard form which shall be
preapproved by the City Manager. No change or modification to such form may be made unless
preapproved by the City Manager. The 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 boat slips.
ARTICLE 7
Common Area Maintenance
7.01 Common Area Maintenance. The 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.
0 15
ARTICLE 8
• Mortgages and Estoppel Certificates
8.01 Lessee's Mortgages. The 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 the- Lessor, but shall
have the right to mortgage and-encumber personal property, fixtures, trade fixtures, special finish items
unique to the Harbor Master Facility's concept, equipment, furniture and merchandise located in or upon
the Premises, which has not been provided or financed by the Lessor. In such event, or events, the 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 the 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 the 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 the Lessee a duplicate of any and all notices or demands given by
the Lessor to the 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. Mortgaizee'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
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 the Lessor.
8.02 Lessor's Right to Sell or Mortgage. The Lessor reserves the right to sell, assign, transfer or
convey its interest in this Lease and the premises without prior consent of the Lessee, and the Lessor shall
further have the right to encumber and mortgage the premises and assign rentals payable by the Lessee
to the 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 the Lessee to use the premises as provided in this Lease, and any person or
entity standing in the place of the Lessor as a result of any such sale, assignment, transfer, conveyance,
or mortgage shall assume the duties and obligations to the Lessee as provided in this Lease as if such
person or entity were the Lessor herein.
8.03 Statement of Performance. The Lessor agrees to furnish the Lessee, and any of the Lessee's
mortgagees, upon written request therefore, a statement wherein the City Manager shall, under oath,
acknowledge that as of the date of such statement the 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
• 16
by the Lessee, and that to the best of the Lessor's knowledge as of said date the leasehold estate hereby
• created and granted to the Lessee is free of all defaults hereunder (or if defaults exist, specifying the
nature of the default); provided, however, the Lessor shall not be required to furnish the 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. -
Lessee:
ARTICLE 9
Lease Defaults
9.01 Defaults by Lessee. The Lessor shall have the right to declare the Lease in default if the
(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 the Lessee, or
(b) Defaults in the performance of any other obligation imposed upon the 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 the Lessee (or, if the Lessor in its sole
discretion, determines that the default cannot reasonably be cured within the fifteen (15) day
period, if the 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 any assignment, then the Lessor may immediately and without notice terminate
this lease or exercise any other rights or remedies available as a matter of law.
9.02 Uniess 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-
(i) The Lessor is required to give the Lessee notice of nonpayment of rent three
(3) times in any twelve month period, and
0 17
(ii) Each of the notices contains a reminder of the substance of this subpart
9.02(a), thereafter the Lessor shall no longer be obligated to give the 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 Lessee 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 the Lessor may have under law
or under the provisions of this Lease, shall have the following options, subject to the Lessee's rights 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 elsewhere at the
cost of, and for the account of, the 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 the 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, the Lessor may avail itself of any rights under the laws of the State of
Texas to evict the 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.
• 18
9.04 Should the Lessor elect to re- enter, under any provision of this lease, or should the 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 the 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 the
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 the Lessee to the 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 the Lessee, then the deficiency shall be paid during that month by the Lessee hereunder, to the Lessor.
Such deficiency shall be calculated and paid monthly in the manner provided above. The Lessee may
request and shall be granted access to the Lessor's books and records in order to ascertain the status and
accuracy of its account with the 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 the
Lessee hereunder.
9.05 Failure to strictly and promptly enforce the conditions set forth above shall not operate as
a waiver of the Lessor's rights. The 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 the Lessor or the 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 the Lessor or the unless such waiver is
in writing and signed by the Lessor or the 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
0 19
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 . A $5ignment and Subleasing. The 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 the Lessor.
Notwithstanding any assignment or sublease, the 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 written
communication and shall be deemed to be duly served and given for all purposes:
(a) To the Lessor when received at:
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, Texas 77522
Fax: 420 -6586
(b) To the Lessee when received at Lessee's office:
Two Bayland Drive, L.C.
c/o RioStar Corporation
Attn: Roland D. Laurenzo
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
40 20
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 mail 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 Headings. 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.
10.08 Force Majeure. Neither the Lessor not the 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, except for
payment of monies due the Lessor by the Lessee, 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 RecQrding_of Lease. The Lessor and the 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 the 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 judgment in a court of law, of competent jurisdiction, in an action in which the Court has ruled
0 21
on a dispute between the Lessor and the 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
Ply•
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 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 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. The 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.
• 22
10. 18 Indemnity. The 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 the 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 the Lessee and the Lessor, that the indemnity provided for in this paragraph is an indemnity
by the 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, the 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 Harbor Master
Facility and the payments of all amounts owed by the 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.
10.21 No Third Party Beneficiaries. This Agreement shall not bestow any rights upon any third
party, but rather, shall bind and benefit the 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 terns 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.
O]
LESSEE
1 ® 3 -�-( -�4
(Date)
By: ?.� �►� �� LAj rz� k;z�
Two Bayland Drive, L.C.
ATTEST:
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, ., City Attorney
•
GUARANTOR
3•z6.96
{Date)
By: �l c-�o L d � / Low tze u-z p
Ninfa's, Inc.
LESSOR
PETE C. ALFARO, Mayor
City of Baytown, Texas
24
(Date)
C]
STATE OF TEXAS
COUNTY OF HARRIS
Before me on this day personally appeared q�o1•q ND -b. �—n- t1,i2C;uZU, in his capacity as
�-1SSL C= of Two Bayland Drive, L.C., 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
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MARIA G. RAMIREZ
NOTARy Pt. 'ltp�-, STATE OF TEXAS 1
3 r My COMMSSiON EaPJFES l
"rr0FS SEPT. 23, 1998 1
N
day of U n r2C �N , 1996.
Public in and for the State of T
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me on this day personally appeared LaLA ac- o in his capacity as
C�L.IA�a2 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.
11
SUBSCRIBED AND SWORN before me this iday of I�t /� 2C� , 1996.
I i
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,•I'V P MARIA G. RAMIREZ
NOTARY PUB ss cN REEXAS Notary P iic in and for the State of Texas
'O, SEPT. 23 1998
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PREMISES IMPROVEMENTS
Ship's Store Equipment
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1 lot
MICRO SYSTEM:
3
3
1
3
3
Micros 2700 WL w/ Memory System Units
Micros Integrated Roller Printers
Micros Magnetic Card Reader
Micros Cash Drawers
Micros Turret Displays, Programming Installation &
Training
2
True GDM72. 72" 3 -Door Display Cooler, 12 Bottle Shelves
1
True GDM49F, 54" 2 -Door Display Freezer
4 sets
4' x 21" x 3 Shelves ISS Shelving
3
3' x 21" Dunnage Racks New Age
1
True GDIM -50, 54" 2 -Door Bag Ice Display Freezer
1
Masterbuilt GT -60, 2 -Door Display Freezer
2
True GDM -49, 54" 2 -Door Display Cooler, w/ 16 Bottle
Shelves - Retail Shelving (lot)
RETAIL SHELVING (LOT):
2
6' Gondolas 48" High 15" Base w/ (2) 13" Upper Shelves
2
8' Gondolas 48" High 16" Base w/ (2) 13" Upper Shelves
2
3' Wall Shelf 48" High 15" Base w/ (2) 13" Upper Shelves
2
4' Wall Shelf 48" High 16" Base w/ (2) 13" Upper Shelves
1
6' Wall Shelf 48" High 15" Base w/ (2) 13" Upper Shelves
EXHIBIT "A"
THE STATE OF TEXAS)
COUNTY OF HARRIS)
FIELD NOTES of a 0.9010 of an acre tract of land situated 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 Nu7 er G
388038 of,the Official Public Records of Real Property of Ha�r ris
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 COOP-DL';-),TES
REFER TO THE STATE PLANE COORDINATE SYSTEM, SOUT -H CENTRAL ZOyE, 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 Nest
corner of a 12.34 acre tract of land conveyed to the Cis, 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 Auger 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 =
7051022.15 and X = 3,269,733.81.
THENCE South 47 deg 49 min 20 sec East with the Southwest li=e 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 Ton
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 Sou t�:--est
line of said 12.34 acre tract of land a total distance of 14_3.43
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 trz— of
land. This corner has a State Plane Coordinate value of
Y = 703,872.71 -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 rc- set
for the Northeast corner of this tract of land.
THENCE South 03 deg 08 min 09 sec West with the East line of =his
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 $
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 rcd 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
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ROBERT L. HALL, JR.
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