Ordinance No. 7,794•
960912 -17
ORDINANCE NO. 7794
AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO
EXECUTE AND THE CITY CLERK TO ATTEST TO THE SUBLEASE
AGREEMENTS BETWEEN TWO BAYLAND DRIVE, L.C., AND BAYLAND
MARINA, INC., FOR OPERATION OF THE MARINA AND BETWEEN TWO
BAYLAND DRIVE, L.C., AND FIVE STAR VENTURES, INC., FOR THE
OPERATION OF THE SHIPS STORE AND FUELING STATION; 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 authorizes and
directs the Mayor and the City Clerk of the City of Baytown to execute and attest to a Sublease
Agreement between Two Bayland Drive, L.C., and Bayland Marina, Inc., for the operation of the
marina. A copy of said contract is attached hereto, marked Exhibit "A," and made apart hereof for
all intents and purposes.
Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the Mayor and the City Clerk of the City of Baytown to execute and attest to a Sublease
Agreement between Two Bayland Drive, L.C., and Five Star Ventures, Inc., for the operation of the
ships store and fueling station. A copy of said contract is attached hereto, marked Exhibit "B," 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 12th day of September, 1996.
ATTEST:
EILEEN R. H, ILL, City Clerk
APPROVED AS TO FORM:
ACID RAMTREZ, S ity Attorney
cAkIhMcily council \ordinances\sublease.ord
zZa (!
PETE C. ALFAR , Mayor
® S' 1i3LEASE AGREEyIENT
This Sublease Agreement dated as of thea3�tlay of �- 1996 (this "Sublease ") is
entered into-by and between Two Bayland. Drive,'L.C., ajezas_Limited 1 iability'Company
( "Sublessor "), and Bayland Marina, Inc., a Texas Corporation (" Sublessee" ), hereinafter called
"Sublessee Marina" where ever appropriate.
WHEREAS, Sublessee Marina desires to lease from Sublessor, for the term described in
Paragraph 3 hereof, the real property located at the Bayland Harbor Development, Harris
County, Texas, known as the "Harbor Master Facility", specifically described as boating
slips, bathhouse, laundromat and restrooms, but excluding the ships store, fuel and boat
service dock, and restaurant. The Harbor Master Facility is more particularly described on
Exhibit "A", which is attached hereto and made a part hereof for all intents and purposes.
Sublessee Marina shall use such facility to operate a marina and to rent boat slips pursuant to
the terms and conditions of this Sublease Agreement (the "Agreement "); and
WHEREAS, Sublessee Marina acknowledges that Sublessor's interest in and to the Premises is
a leasehold interest created by that certain lease by and between City of Baytown, Texas, a
municipal corporation, as (the "Landlord "), and Sublessor, as Tenant (the "Lease "), a copy of
which is attached hereto as Exhibit "B "; and
WHEREAS, Sublessee Marina acknowledges that Sublessor has conveyed its interest in the
ships store and fuel and boat service dock to another Sublessee known as Five Star Sublease;
and
WHEREAS, Sublessee Marina acknowledges that wherever there is a requirement of
performance by Sublessee that Sublessee refers to Sublessee Marina and its responsibility in
relation to the Sublease as said Sublease relates to the Lease; and
WHEREAS, Sublessee Marina acknowledges that Sublessee Marina and Sublessee Five Star
have a common right -of -way that extends across the leasehold that enables each Sublessee to
operate in a reasonable manner under their respective subleases as more particularily described
in Exhibit A; and
WHEREAS, Sublessee Marina acknowledges that said sublease is not effective until the receipt
of written consent by the Landlord.
NOW THEREFORE, in and for the mutual promises, covenants, and agreements hereinafter
set forth, the parties hereto covenant and agree as follows:
1.Demise.
(a) Premises. Upon the terms and conditions set forth herein, Sublessor hereby leases and
sublets to Sublessee Marina and said Sublessee hereby leases and sublets from Sublessor for
the term described in Paragraph 4, a portion of the "Premises, " as more particularly depicted
in the site plan marked as Exhibit "A" and incorporated herein for all purposes.
EXHIBIT A
® (b) Quiet Enjoyment. Subject to any limitations contained in the Lease and
upon due performance of the covenants and agreements to be performed by Sublessee Marina
under this Sublease, Sublessor covenants that said Sublessee shall, at all times peaceably and
quietly have, hold, and enjoy the Premises during the term of this Sublease 'and understands
and agrees to be bound by the terms of the Lease.
•
(c) Operation and Maintenance Tasks. Sublessee Marina understands and
agrees to maintain the Premises in a manner acceptable to the Landlord pursuant to Article 3 of
the Lease.
2. Condition. The Premises are leased in their present condition and upon the state
Of title existing to any facts which an accurate survey or physical inspection might show, and
to all applicable laws, rules, regulations, ordinances, or restriction which may exist at such
date. Sublessor represent that it has no knowledge of any existing violation of laws, rules,
regulations, ordinances, or restrictions. Sublessee Marina has examined the Premises and
Sublessor's title thereto and found the same to be satisfactory.
3. Term. This Sublease shall be effective on the later of the first day of September,
1996 ( "Effective Date ") or the execution date hereof (the "Execution Date "), and continue
thereafter until five (5) years have elapsed. Sublessee Marina shall have the right to exercise
three renewal options of five (5) years of said sublease provided (i) said Sublessee is not in
default under the terms of this Sublease or any other agreement between Sublessee Marina and
Sublessor or any of its affiliates; (ii) Sublessee Marina notifies Sublessor, in writing, one
hundred eighty (180) days before any required notice must be given by Sublessor under the
Lease; (iii) Sublessor exercises its option of renewal; and (iv) that said Lease has not been
terminated earlier by either Sublessor or the Landlord.
4. Rent.
(a) Minimum Rent. Beginning on the Effective Date or Execution Date,
whichever is the later, Sublessee Marina shall pay all amounts as set out below:
September, 1996 (1st month)
October, 1996 thru January, 1997
(2nd thru 5th month)
February thru March, 1997
(6th and 7th month)
April thru August, 1997
(8th thru 12 month)
Year 2 through Year 5
Year 6 through 10 (1st Option)
Remaining Options (2nd and 3rd Options)
S 5,000 per month
2,500 per month
5,000 per month
7,000 per month
5,500 per month
6,000 per month
Fair Market Rate
Remaining Options: Fair Market Rate shall in no event be greater than
o of the money rental payable during the immediately preceding Option Period.
(b) Additional Fees. In the event that the Landlord, City of Baytown, or any
other government agency, levies additional and unforeseen expenses,' including, b'
ut not limited
to, taxes; interests, fines, said pro rata share of additional fees shall be charged against
Sublessee Marina and said Sublessee shall be required to pay said fees as set out by the
governing authority levying said fees. Sublessee Marina shall be further obligated to pay said
fees prior to any delinquency date established by the governing authority issuing the fee.
(c) Deposit. The first month's rent shall be due and payable upon the
signing of this agreement.
(d) Default. An event of default of this Agreement, shall constitute any
failure by Sublessee Marina:
(1) to pay in a timely manner any fixed or percentage rental or any other
Payments called for in the sublease; or
(2) to pay in a timely manner in accordance with the respective contract
provisions, any payments, in addition to fixed and percentage rental, called for in this
Agreement; or
(3) to pay in a timely manner any costs or expenses associated with the
purchase and installation of furniture, fixtures and equipment in the Premises; which results in
a mechanic's lien being filed against the Premises, unless such lien has been removed within a
Period of 15 days from the date of such filing; or
taxes, fees, fines, and c costs, pay
which results y affectin y charges, including
but limited to, any
including but not limited to, judgement liens, statutory the ienstle to said Premises in
liens any manner,
(5) to perform any term or obligation contained in the Lease as it
pertains to Sublessee Marina.
(e) Remedies in the Event of Default. If Sublessee Marina defaults in the
Performance of this Agreement pursuant to Section 4(d) above, Sublessor shall have the
following rights and remedies:
(1) Sublessor shall have the right, in its sole discretion, to declare this
Agreement terminated. In such event, Sublessee Marina shall immediately vacate the premises,
leaving all leasehold improvements and personal property within the premises, and such items
shall immediately and automatically become the property
right to operate the premises for any use in its sole discretion. Sublessor. Su blessee Mari Marina hereby av re e
to execute all documents requested by Sublessor, conveying all rights with respect to said s es
• Sublessee, the leasehold improvements and all personal property to Sublessor. Sublessee
® ivlarv.a nereby irrevocably appoints Sublessor as its Attorney in Fact to ex--cute all such
documents.
.. .. „ ,. M. Sublessor shall. have the right, in its sole. discretion, not to declare
this Agreement terminated, but require the immediate payment by Sublessee Marina of all
moneys due and owing and the immediate curing of any other defaults which Sublessee may
have committed.
(3) Sublessor shall have all the rights, powers, and remedies provided for
herein, or by Iaw or in equity. Sublessee Marina shall pay to or at the direction of Sublessor,
on demand, any amounts which would be payable under said Sublease, including interest,
which Sublessor shall have paid under the Lease and which shall be payable by said Sublessee
hereunder, from the date of payment thereof by Sublessor until repaid by Sublessee Marina.
5. Right to Inspect Premises. The Landlord and /or Sublessor 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, to ensure compliance with the terms and conditions of
this Agreement, and ensure that the Premises are being maintained to the satisfaction of the
Landlord.
6. Continuous Use.
Sublessee Marina shall not use the Premises for any disorderly or unlawful purpose.
The Premises shall be used by said Sublessee for the purpose of operating a first -class Harbor
Master Facility which shall include the operation and management of boating slips, bathhouse,
iaundromat and restrooms. Any additional use not expressly mentioned herein must be
approved in writing by the City Manager prior to the commencement of such use.
(a) Operation and Maintenance Tasks. In the operation and maintenance of the
Harbo; Master Facility, Sublessee Marina hereby understands and agrees to perform all of the
following tasks and that such tasks are the sole responsibility of said Sublessee:
(1) to maintain facilities in a clean and orderly condition at all times;
(2) to ensure all equipment is in good repair ;
(3) to purchase and maintain all supplies and inventory;
(4) to implement a marketing program geared to attract the general
boating public to the marina;
(5) to develop policies and procedures, with approval of City Manager,
governing employee and customer activities and behaviors;
(6) to implement and enforce the policies referred to in section 6(2)(6);
(7) to notify the City Manager without delay in writing of any incident
regarding problems with boat owners, visitors, or the general public;
(8) 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;
(9) to work, in conjunction with the Landlord to prevent damage to
® identified wetland habitats by intrusion of the general public or other man -made threats;
(10) 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;
(11) to develop all legal documents, rules and policies regarding the
rental of boat slips;
(12) to notify the City Manager without delay of any maintenance
problems or equipment failures that require action by the Landlord;
(13) to develop and implement a system for the satisfactory disposition of
boat owners' complaints and grievances;
(14) 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 al
(15) to install and operate a storm and emergency warning system that
conforms to standard marina practices.
(b) Maintenance and Utility Responsibilities. Sublessee Marina will perform
all janitorial and light maintenance functions at the Harbor Master Facility, including, but not
limited to, all maintenance pertaining to utility and cable connections at each boat slip.
(c) Parking. Sublessor agrees and warrants that Sublessee Marina 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, that
is attached hereto and marked Exhibit "C ", for vehicle parking purposes only. Sublessee
Marina understands and agrees that throughout the term of this Sublease, and any option
therms hereof, the parking areas and the modes of ingress and egress may be changed from
time to time at the sole option of the City Manager.
(d) Hours of Business. Sublessee Marina shall continuously during the entire
term of the Sublease 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 said Sublessee'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, said Sublessee 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 Sublessee Marina temporarily discontinued
therein (i) on account of strikes, lockouts or similar causes beyond the control of said
Sublessee or (ii) in connection with any renovation or alteration of the Premises, which such
renovation or alteration and the time alloted for the same has been previously approved in
writing by the Landlord; provided, that such closure shall be only for a period of time
necessary to complete the renovation or alteration. Sublessee Marina shall to the satisfaction of
the Landlord conduct said business in accordance with sound business practice.
® 7. Josurance. Sublessee agrees to provide and keep in force, throughout the term of
this Sublease and any extensions thereafter, insurance as provided for in Article 6 of the Lease.
Certificates of Insurance shall filed with the Landlord. Landlord shall be notified immediately
in the event there is .a lapse of said insurance., Failure to cure ,the -lapse within ten (10) days of
said lapse shall be an event of default.
8. Incorporation of Provisions of the Lease. This Sublease is subject to all of the
terms and conditions of the Lease as it relates to said Sublease and Sublessee Marina hereby
agrees to assume, discharge, and perform the obligations as required under said Lease.
9. Notices. All notices required or permitted to be given hereunder may be given by
letter, telefax, cable, telegram, mailgram, or any other form of written communication and
shall be deemed to be duly served and given for all purposes:
(a) _ To Sublessor when received at:
Two Bayland Drive, L.C.
Attn: Roland D. Laurenzo
c/o R.ioStar Corporation
214 N. Nagle
Houston, Texas 77003
Fax: 228 -0135
(b) To Sublessee when received at:
Bayland Marina, Inc.
ATTN: Mr. Claude A. Chinielewski
4004 Massey Tomkins
Baytown, Texas 77522
Fax no. 713 428 -1861
as the case may be. 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. Notices by mail will be deemed received three (3) days
after mailing via First Class, U.S. Mail, postage prepaid.
. Sublessor and Sublessee Marina shall each have the right to specify from
time to time, as its address for purposes of this notice, any address in the United States upon
giving fifteen (15) days written notice thereof to the other party.
10. Assignment and Sublease. Sublessee Marina shall not assign nor sublease the
Premises without the prior written consent of Landlord, which consent may be withheld at the
® sole discretion of Landlord. Any attempt to assign or sublease the premises without the prior
written consent of Landlord, (1) shall be null and void and without force or effect and (2) shall
be an event of default.
11. Prompt Paym4r�t. Sublessee Marina's right to possession and all of Sublessor's
obligations hereunder are expressly contingent on the prompt payment of rent, and the use of
the Premises by said Sublessee is obtained only on the condition that rent is paid on time.
Payment of rent.shall be an independent covenant; and all moneys -received by Sublessor shall
be applied first to non -rent obligations of Sublessee Marina then on rent regardless of notations
on checks. At Sublessor's option, Sublessor may at any time require that all rent and other
sums be paid either in cash or by money order.
12. Guaranty. For the consideration herein expressed which is hereby acknowledged
sufficient and received, Claude A. Chmielewski, (the "Guarantor "), hereby guarantees all
payments and liabilities of Sublessee Marina and the performance of all obligations of
Sublessee Marina under the terms and conditions of this Sublease for a period of five (5) years.
It is expressly agreed by the parties hereto, the Guarantor, Sublessee Marina and Sublessor,
that throughout the initial term of the Sublease (5 years), the guaranty provided in this
paragraph is a guarantee by the Guarantor to guaranty the performance of all of said
Sublessee'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 Sublessee Marina
hereunder.
13. Indemnification.
(a) Sublessee Marina agrees to and shall indemnify, hold harmless, and defend
Sublessor, 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 any and all
damages arising out of or in connection with the Premises and the use thereof, the conduct or
management of said Sublessee's business or activities, or from any act or omission by
Sublessee Marina, its agents, servants, employees, subcontractors, guests, or invitee, on or
about the Premises subject to this agreement, where such injuries, death or damages are caused
by the joint negligence of the Sublessor and any other person or entity. It is the expressed
intention of the parties hereto, both Sublessee Marina and the Sublessor, that the indemnity
provided for in this paragraph is indemnity by said Sublessee to indemnify and protect the
Sublessor from the consequences of the Sublessor's own negligence, where that negligence is a
concurring cause of the resulting injury, death or damage. 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 damages result from the sole negligence of the Sublessor
unmixed with the fault of any other person or entity.
(b) Sublessee Marina agrees to and shall indemnify, hold harmless, and defend
Landlord, its officers, agents and employees, from and against any and all claims, losses,
damages, causes of action, suits and liability of every kind, including ail expenses of litigation,
court costs, and attorneys' fees, for injury to or death of any person, or for any and all
damages arising out of or in connection with the Premises and the use thereof, the conduct or
management of said Sublessee's business or activities, or from any act or omission by
Sublessee Marina, its agents, servants, employees, subcontractors, guests, or invitee, on or
about the premises subject to this agreement, where such injuries, death or damages are caused
® by ti-c joint negligence of the Landlord and any other person or entity. It is the expressed
intention of the parties hereto, both Sublessee. Marina and the Sublessor, that the indemnity
provided for in this paragraph is indemnity by said Sublessee to indemnify and protect the
Landlord from the consequences of the Lan dl d's own negligence, where that negligence is a
concurring cause of the resulting injury, death for damage. The indemnity provided for in this
paragraph shall have no application to any claim, loss, damage, cause of action, suit and
Iiability where the injury, death or damage res i Its from the sole negligence of the Landlord
unmixed with the fault of any other person or Jntity.
•
(c) In the event that any action
the Landlord by reason of any of the above,
defend the action or proceeding by legal coup
as applicable.
14. Miscellaneous.
(a) Direct Payment of Rents a,
sole discretion, to require Sublessee Marina to
directly to the Landlord. If Sublessor elects sui
notice to said Sublessee of such requirement.
(b) Governing Law. The laws
interpretation, validity, performance, and enfc
action under this Agreement shall be in Harris
(c) Heirs and Successors. The t
this Sublease shall apply to and inure to the bet
and their respective heirs, successors- in-in te res
(d) Attorney Fees. Any other pi
issuance of a final judgement in a court of law,
the Court has ruled on a dispute between the Si
whom the judgment has been rendered shall be
the reasonable attorney's fees of the prevailing
(e) Entire`Agreement. The Su
parties hereto, and no agreement shall be effe
Sublease in whole or in part unless such is in
(f) Multiple Counterparts. This
counterparts and each counterpart shall be consi
(g) Disputes Among Sublessees.
that may effect either sublease or the lease, Subl
to be taxed to the Sublessees.
proceeding is brought against the Sublessor or
)lessee Marina further agrees and covenants to
acceptable to the Sublessor and/or Landlord,
Fees. Sublessor shall have the option, in its
.y fixed and /or percentage rent, if applicable,
option, it shall given at least 30 days written .
the State of Texas shall govern the
ement of this Sublease, and venue for any
ounty, Texas,
ms, provisions, and covenants contained in
it of and be binding upon the parties hereto
legal representatives, and assigns,
sion of this Sublease notwithstanding, upon
competent jurisdiction, in an action in which
:ssor and the Sublessee, the party against
ponsible for payment of all court costs and
contains the entire agreement between the
to change, modify, or terminate this
ig and duly signed by the parties hereto,
iblease may be executed in multiple
red an original.
ould a dispute arise among the Sublessees
or shall have the right to arbitrate with costs
i
(h) Agreement Read. The parties acknowledge that they havc: read, understand
0 and intend to be bound by the terms and conditions of this Agreement.
(i) Severability. All parties agree that should any proyision 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.
0) No Waiver. Failure of either party hereto to insist on the strict performance
of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon
default or failure of performance shall not be considered a waiver of the right to insist on and
to enforce by an appropriate remedy, strict compliance with any other obligation hereunder or
to exercise any right or remedy occurring as a result of any future default or failure of
performance.
(k) Authority. The officers executing this Agreement on behalf of the parties
hereby represent that such officers have full authority to execute this Agreement and to bind
the party he /she represents.
(L) %vdAT Tv lQ?PnoU4-la NwrD veAe orLi.}�y�ci1~y
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies, each of which shall be deemed to be an original, but all f which shall constitute but
one and the same Agreement on the �_ day of
of approval of the Landlord acting by and through its City alter. ' 1996, the date
SUBLESSEE: BAXLAND MARINA, INC.
PrePresident
n
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L A uV � � • LI I�- V 2 � N_ 2- 0
(Printed Name)
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l Ate T-
(Title) -
GUARANTOR: CLAUDE A. CHMIELEWSKI
(Signature)
(Printed Name)
0
•
APPROVED BY LANDLORD:
Bobby Rountr e, City Manager ��YTQ�
City of Baytown O� y
ATTEST:
Eileen P. Hall, City Clerk's
APPROVED AS TO FORM:
Ignacio Ramirez, Sr., City Attorney
STATE OF TEXAS
COUNTY OF HARRIS
Before me on this day personally appeared CLAUDE A. CHMIELEWSIU, President of
Bayland Marina, Inc., a Texas 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, on behalf of said corporation.
t:.
SUBSCRIBED AND SWORN before me this b day of , 1996.
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EXP
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Notary ruolic to and for the State of Texas
•
STATE OF TEXAS
COUNTY OF HARRIS , ,
Before me on this day personally appeared �jc ya- j 0 D , L1q- 4K'ex} ZU , in his
capacity as 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 O' • . AD day of ' 996
RICHARD P. HOLGIN
Notary PuNc, State of Texas
f : !• My Commission Expires 10.31.96
STATE OF TEXAS
COUNTY OF HARRIS
r
otary Public in and for the Stag of Texas
Before me on this day personally appeared Claude A. Chmielewski in his capacity as
Guarantor of Bayland Marina, Inc., on behalf of such corporation, known to me to be the
person whose name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN aM.me thisc 3,41 day of , 1996.
`A'S' +rA Notary Public in and for the State of Texas
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EXHIBITS A & C
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Lr.`,: = R OF PREMISES
This lease is signed on this day of March, 1996,
Texas, a municipal corporation located in Harris- and - Chambers.
Bayland Drive, L.C., having its principal place of business at 214 N
( "Lessee "). The Lessor and Lessee agree as follows:
DEFINITIONS
e or: City of Baytown, Texas.
Lessee: Two Bayland Drive, L.C.
between The City of Baytown,
Counties; -('Lessor") and, Two
N. Nagle, Houston, Texas 77003
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 ct 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.
Arch.itect�.u•al and Eneineering_Fees. Fees paid Vic;• 1v for the preparation of architectlarat uld
® 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.-4- 1.4 - : .. 1 1 1
Lease Commencement bate: 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 Tenn 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.
OperatingQgats: 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 I
Premises
1.01 The BuJand 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:
. (i) The building (to be constructed) outlined in red on the Plan which consists
of approximately one thousand five hundred square feet (1,500 ft2); to be located on
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ti1� Premises parcel consisting of approximately thir'.r -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
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 JeLm. 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 Tenn 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 Tenn 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
•
':erns and conditions hereof s:`ali apply during the additional term(s), uniess other:: x� :ro li i.F' 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 fxt'ures; 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 Tio Rent for or Operation during Interim Term. During the Interim Term and for exactly
one (l) 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 Tenn. Starting exactly one (l) 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
• 4
described in Exhibit "A" to this Lease, plus all interest accrued on &e cost • ^`
® 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 " 1 ST:.:;'AMOUNT
TERM
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 S' )00,000.
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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•
- I _ - .
:'Year. of-:: :' :.
Termination or,-.
`''Expiration of ...
Lease :
:. Tertrination/
..: Cancellation
: '.'::: <`:Fee
1
$141,000
2
138,222.50
3
127,928.63
4
116,888.46
5
105,047.87
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 Termination/Cancellation Fee attributable to the year in which the lease is
terminated. For example, should the lease be terminated one(]) 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 satisfactorily
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 Term i nati on/Cance I lation
Fees are reasonable in light of (1) 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 itsel f entitled in law or in equity.
If the Termination /('- ,ce!latian Fee is not paid as and when-duc: and is placed in the
hands of an attorney for co iection 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 notion 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,
40
exclusive of any and all slip rental revenues (wr.r,uher fcr ce.sh or othe;v, ;se) by the Les ee.
® No promotional material given away by Uce 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. SLOSS ease. 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 (I%) per month.
2.07 No partners-hip. 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
steal l at all tinte remain that of the Lessor and the Lessee.
2.08 Ilig t to pect Pieniies 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 env Managementi 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 Constructian_of Add iiign,a,l_Boat Slips. The Lessor res °r ;::s th.c ripht to construct additional
® boat slips at any time in which the Lessor, in its sole discretion, deem:: 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 f r Use by Les or's Emer�encv 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
Usc 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- premisds 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;
(d) to implement a marketing program Seared to attract the general boating public to the ships
store and marina;
• 9
(f)
to develor, policies and procedures, with approval of the City ' `ana`?r, 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;, , s - , .., ••.. ;. _
(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;
(in)
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 tvfaster 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 11tility Re n i ilities. 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 I,aw. 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 e Covenant gf Title and Quiet n' vment . 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 cce rs.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.
0- 10
3.'7 Parkin . The Plan shows he Premises and the rest of the I3ayland De:,elopmer.±. `h:.,
L cssor agrd:,s 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 parking 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 shal I 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 Improvefflents. 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 armed 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
0
services. Within. f :e (5,) days after the date of this Agr..emcnt, architectural and engineering work -)n
the design of the Premis"r.- 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 continence
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 Properly. 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 terrns 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. 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 e . 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 $ayland Development property.
0 12
4.09 Lessor to Maintgin :rue! Facilities and I_d Station. Tile Lessor will maintain the fuel
® facilities 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
Maintenance, Repairs and Alterations
5.01 By Lesso r. 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 lo: 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 Y 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 a lien remains on the property after
the expiration of ten days, the Lessee shalt 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
An.71C_t,I1 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 manna 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 para,caph, 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 cerfificates
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 cant' liability insurance on the common areas.
6.03 Damage or Destruction) y_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 v/ill 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 sliall,be - acquired orrcondemned by
expropriation or eminent domain for any new pub] is or quasi-pub] is use or purpose, then the term of this
lease shall end as of the date that title vests in such proceeding and al I 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 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 Sharing Award. In the event of any condemnation, whether whole or partial, the Lessee shall
be entitled to receive any monies expressly apportioned by a court of competent jurisdiction in its final
judgment. If no amount is so apportioned, the Lessee shall be entitled to nothing under the terms of this
Lease.
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 Aria 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.
• 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. NQtices. 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. Mortgagee's Liability. Except with respect to the period any such parties actually hold
the leasehold estate created hereby, no liability for the payment of rental or the performance of
any of the Lessee's covenants and agreements hereunder shall attach to or be imposed upon any
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 Ri ht 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
0 16
by the Lessee, and that to the best of the Lessor's knowledge as of said date the leaseholrl °_�tatc ,o -eby
® crewed 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.
ARTICLE 9
Lease Defaults
9.01 Defaults byLessee. The Lessor shal I have the right to declare the Lease in default if the
Lessee:
(a) Fails to pay any installment of rent or make any other payment of money due
hereunder within seventy -two (72) hours after written notice of the failure shall have been given
to 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 Unless otherwise stated in this lease, if the Lessee commits a default, the Lessor shall give
the Lessee a written notice specifying the default and the Lessee shall have the following periods of time
to cure the default:
(a) In the case of a failure to pay rent or any other default consisting of the failure to pay
money, the Lessee must remedy the default within seventy-two (72) hours from the receipt of the
notice, provided that if-
(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 co :-ins a reminder of the substance of this subpart
® 9.(J2(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 hercinabove 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 9.05, 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.
0 18
9.04 Should the Lo-,zsor? ect t;, re- enter, under any pro%�ision of this lease, or should the Lessor
® take possession pursuant to legal proceedings or pursuant io 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 attorriey'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 shal I 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 iights 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, prov;d.cd tEat thF Lessor may not withhoid �c approval unreasonably.
The security shall consist of casij, 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 Assignment 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 77572
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
0 20
-:L uy.giving due notice of the new address to the other rmities provided that the new address rnust be at
® a place in the United States where the mail and either mailgrams or telegrams or similar corn.munications
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 nsent . 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 Maieure. Neither the Lessor not the Lessee shat) 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 Recor&g of Leas 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
40 21
on a dispute bf :rveent_he Lessor and the Lessee, the party 2gainst whom ;he;_tdor-nent 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 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 (S 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 failuze 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 reouired 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 firefighting 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.
40 22
10. 18 indernnitv. 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 ,n 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 al I 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 P@M 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 po�vcr and authority to enter into and
perform this Agreement, and the person signing this Agreement on behalf of each party has been properly
authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby
represent that they have authorization to sign on behalf of their respective corporations.
10.23 Agreement Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
10.24 Multiple Originals. It is understood and agreed that this Agreement may be executed in
a number of identical counterparts each of which shall be deemed an original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this lease as of the day and year
opposite their signature, said lease to be effective the first date set forth above.
23
E.
ATTEST:
�-2' - "'ez ;
EILEEN P. HALL, City Cicrk
APPROVED AS TO FORM:
'14�Dn
eRNACIO RAMIREZ, , City Attorney
•
Two Bayland Drive, L.C.
GUA
2t 4 b
(Date)
By: -�:)_ ?- 3uYTNZ-o
Ninfa's, Inc.
LESSOR
PETE C. ALFARO, Mayor (Date)
City of Baytown, Texas
24
STATE OF TEXAS
® §
COUNTY OF HARRIS §
Before me on this day personally appeared-Roland D. Laurenzo, in hls-cap5tity'as President 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.
114'
SUBSCRIBED AND SWORN before me this 2l day of JTAAj&; 1996.
RICHARD P. i- IOLGIN �
r1)_I NaSry P.blic. $tale a1 Teres
Notary Public in and for the tale of Texas
STATE CF TEXAS §
COUNTY OF HARRIS §
Before me on this day personally appeared Roland D. Laurenzo, in his capacity as President 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 lie executed the same for the purposes and
consideration therein expressed.
CA`
SUBSCRIBED AND SWORN before me this z( day of 1996.
G • dr 7 �V L/ �/ \./�
r ' r RICHAPD P. HDLGIN / Notary Public in and for the tate of Texas
.l
Nagy star: Cl Texas
'4y L[nrmizs;an &P: e. 30•]1.95
cakllr 14kontractsk6harbormulcr
•
25
PREI iSES IMPROVEMENT
0 Ship's Store Equipment
I lot MICRO SYSTEM:
r
3 Micros 2700 WL w/ Memory System Units
3 Micros Integrated Roller Printers
I Micros Magnetic Card Reader
Micros Cash Drawers
3 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 Tx 21" Dunnage Racks New Age
I True GDIM -50, 54" 2 -Door Bag Ice Display Freezer
1 Masterbuilt GT -60, 2 -Door Display Freezer
True GDM49, 54" 2 -Door Display Cooler, w/ 16 Bottle
2 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 T 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
0 EXHIBIT "A"
THE STATE OF TEXAS)
COUNTY Or 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 :, td - City % - do 'Baytown, dated
November 20. 1979, and recorded at County Clerk's File Nu:::---2r G
388038 of-the Official Public Records of Real Property of --ris
County, Texas. This 0.9010 of an acre tract of land is nore
particularly described by metes and bounds as follows, to -wit:
NOTE: ALL BEARINGS ARE LAMBERT GRID BEARINGS A.NO ALL COORD2ZATES
REFER TO THE STATE PLANE COORDINATE SYSTEM, SOUTH CENTRAL ZOIN7, 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.
COM1fENCING at a 2 inch galvanized iron pipe found for the West
corner of a 12.34 acre tract of land conveyed to the Ci ; , of
Baytown by William Marsh Rice University by deed dated March 31,
1995, and recorded at County Clerk's File Number R 354555 of th e
Official Public Records of Real Property of Harris County, Texas
and the North corner of a 10.00 acre tract of land called Trzct 1
in a deed from Frank N. Angel to Le Roy E. Pearce, dated Augzf 1,
1989, and recorded at County Clerk's File Number M 310862 of the
Official Public Records of Real Property of Harris County, _e.Yas .
This corner is in the South right of way of State Highway No_ 2.46,
right width varies, and has a State Plane Coordinate Value o= v -
705,022.15 and X = 31269,733.81.
THENCE South 47 .deg 49 min 20 sec East with the Southwest 14-- of
of
said 12.34 acre tract of land and the Northeast line of s?-i4 10
acre tract of land, at .489.45 feet found a 2 inch galvanizes moron
pipe in line for the East corner of said 10.00 acre tract ar_d -die
North corner of said 45.3714 acre tract of land, continuing on -ith
the Northeast line of said 45.3774 acre tract and the Sou est
line of said 12_34 acre tract of land a total distance of a4 = __.43
feet to a point.
THENCE South 42 deg 10 min 40 sec Hest a distance of 160.96 fe -= to
a 1/2 inch iron rod set for the Northwest corner of this tr?— of
land. This corner has a State Plane Coordinate value of
Y = 703,872.7 -1 and X = 3,270,666.92.
THENCE South 66 deg 00 min 00 sec East with the North line o= =.his
tract of land a distance of 142.02 feet to a 1/2 inch iron 1-c--- 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 B
PAGE. NO. 2 - 0.9010 ACRE TRACT
® THENCE South 48 deg 54 min 50 sec West with the Southeast line of
this tract of land a distance of 75.01 feet to a 1/2 inch iron rod
set for the most Southern Southeast corner of this tract of land.
THENCE North "86 deg 05 min 00 sec West with the South line of this
tract of land a distance of 121.09 feet to a 1/2 inch iron rod set
for the Southwest corner of this tract of land.
THENCE North 11 deg 32 min 34 sec East with the West line of this
tract of land a distance of 288.09 feet to the PLACE OF BEGINNING,
containing within said boundaries 0.9010 of an acre of land.
SURVEYED: August 31, 1995
SURVEYOR'S CERTIFICATE
I, Robert L. Hall,Jr. Reg. Professional Land Surveyor No. 1610 do
hereby certify that the foregoing field notes were prepared from a
survey made on the ground on the date shown and that all lines,
boundaries and landmarks are accurately described therein.
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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® SUBLEASE AGREEMENT
This Sublease Agreement dated as of the _1OIT+ day of.4u6 u s r , 1996 (this "Sublease ") is
entered into by and between Two Bayland Drive, L.C., a Texas Limited Liability .Company
( "Sublessor "), and Five Star Ventures, Inc., a Texas Corporation ( "Sublessee "), hereinafter
called "Sublessee Five Star" where ever appropriate..
WHEREAS, Sublessee Five Star desires to lease from Sublessor, for the term described in
Paragraph 3) hereof, the real property located at the Bayland Harbor Development, Harris County,
Texas, known as the "Harbor Master Facility", specifically described as the ships store, fuel and
boat service dock, but excluding the boating slips, bathhouse, laundromat, restrooms, and
restaurant. The Harbor Master Facility is more particularly described on Exhibit "A ", which is
attached hereto and made a part hereof for all intents and purposes. Sublessee Five Star shall use
such facility to operate a store and fueling station pursuant to the terms and conditions of this
Sublease Agreement (the "Agreement "); and
WHEREAS, Sublessee Five Star acknowledges that Sublessor's interest in and to the Premises is
a leasehold interest created by that certain lease by and between City of Baytown, Texas, a
municipal corporation, as (the "Landlord "), and Sublessor, as Tenant (the "Lease "), a copy of
which is attached hereto as Exhibit "B "; and
WHEREAS, Sublessee Five star acknowledges that Sublessor has conveyed its interest in the
ships store and fuel and boat service dock to another Sublessee known as Marina Sublease; and
WHEREAS, Sublessee Five Star acknowledges that wherever there is a requirement of
performance by Sublessee that Sublessee refers to Sublessee Five Star and its responsibility in
relation to the Sublease as said Sublease relates to the Lease; and
WHEREAS, Sublessee Five Star acknowledges that Sublessee Marina and Sublessee Five Star
have a common right -of -way that extends across the leasehold that enables each Sublessee to
operate in a reasonable manner under their respective subleases as more particularly described in
Exhibit A; and
WHEREAS, Sublessee Five Star acknowledges that said sublease is not effective until the receipt
of written consent by the Landlord.
NOW THEREFORE, in and for the mutual promises, covenants, and agreements hereinafter set
forth, the parties hereto covenant and agree as follows:
Demise.
(a) Premises. Upon the terms and conditions set forth herein, Sublessor hereby
leases and sublets to Sublessee Five Star and said Sublessee hereby leases and sublets from
® Sublessor for the term described in Paragraph 4, a portion of the "Premises," as more particularly
depicted in the site plan marked as Exhibit "A" and incorporated herein for all purposes.
(b) Quiet Enjoyment. Subject to any limitations contained in the Lease and upon
due performance of the covenants and agreements to be performed by Sublessee Five Star under
this Sublease, Sublessor covenants that said Sublessee shall, at all times peaceably and quietly
have, hold, and enjoy the Premises during the term of this Sublease and. understands and agrees
to be bound by the terms of the Lease.
(c) Operation and Maintenance Tasks. Sublessee Five Star understands and
agrees to maintain the Premises in a manner acceptable to the Landlord pursuant to Article 3 of
the Lease.
2. Condition. The Premises are leased in their present condition and upon the state
of title existing to any facts which an accurate survey or physical inspection might show, and to
all applicable laws, rules, regulations, ordinances, or restriction which may exist at such date.
Sublessor represent that it has no knowledge of any existing violation of laws, rules, regulations,
ordinances, or restrictions. Sublessee Five Star has examined the Premises and Sublessor's title
thereto and found the same to be satisfactory.
3. . Term. This Sublease shall be effective on the later of the first day of September,
1996 ( "Effective Date ") or the execution date hereof (the "Execution Date "), and continue
thereafter until five (5) years have elapsed. Sublessee Five Star shall have the right to exercise
three renewal options of five (5) years of said sublease provided (i) said Sublessee is not in
default under the terms of this Sublease or any other agreement bettiveen Sublessee Five Star and
Sublessor or any of its affiliates; (ii) Sublessee Five Star notifies Sublessor, in writing, one
hundred eighty (180) days before any required notice must be given by Sublessor under the
Lease; (iii) Sublessor exercises its option of renewal; and (iv) that said Lease has not been
terminated earlier by either Sublessor or the Landlord.
4. Rent.
(a) Minimum Rent. Beginning on the Effective Date or Execution Date,
whichever is the later, Sublessee Five Star shall pay all amounts as set out below:
Year 1 through Year 5 $ 21900 per month
Year 6 through Year 10 2,750 per month
Option Terms: Fair Market Rate
(1) Fair Market Rate shall be determined as follows:
If parties can not agree to the Fair Market Rate each party
(Sublessee Five Star and Sublessor) shall hire a certified appraiser at their own cost to determine
the Fair Market Rate. If said appraisers' findings are within ten (10 %) percent of each other the
midpoint shall be determinative of the Fair Market Rate.
0 In the event the'appraisers findings are greater than ten (10 %) --
® percent a mutually agreeable certified appraiser shall be used to determine the Fair Market Rate.
Said appraiser's findings shall be determinative of the Fair Market Rate. Cost of the third
appraiser shall be shared equally between the parties.
(b) Additional Rent. Beginning on the 15th day of the month following the
Effective Date or Execution Date, whichever is later, and continuing on the 15th day of each
month for the duration of said Sublease plus one month following the expiration of said
Sublease, Sublessee Five Star shall pay one cent on each gallon of fuel sold pursuant to Article 5
of said Sublease, said moneys being due and payable on the 15th of the month immediately
following said sale.
(c) Additional Fees. In the event that the Landlord, City of Baytown, or any
other government agency, levies additional and unforeseen expenses, including, but not limited
to, taxes, interests, fines, said pro rata share of additional fees shall be charged against Sublessee
Five Star and said Sublessee shall be required to pay said fees as set out by the governing
authority levying said fees. Sublessee Five Star shall be further obligated to pay said fees prior to
any delinquency date established by the governing authority issuing the fee.
(d) Deposit. The first month's rent shall be due and payable upon the signing
of this agreement.
(e) Default. An event of default of this Agreement, shall constitute any
failure by Sublessee Five Star:
(1) to pay in a timely manner any fixed or percentage rental or any other
payments called for in the sublease; or
(2) to pay in a timely manner in accordance with the respective contract
provisions, any payments, in addition to fixed and percentage rental, called for in this
Agreement; or
(3) to pay in a timely manner any costs or expenses associated with the
purchase and installation of farniture, fixtures and equipment in the Premises; which results in a
mechanic's lien being filed against the Premises, unless such lien has been removed within a
period of 15 days from the date of such filing; or
(4) to pay in a timely manner any charges, including but limited to, any
taxes, fees, fines, and costs, which results in effecting the title to said Premises in any manner,
including but not limited to, judgement liens, statutory liens, and government liens
(5) to perform any term or obligation contained in the Lease as it pertains
to Sublessee Five Star.
0 (f) Remedies in the Event of Default. If Sublessee Five Star defaults in the
performance of this Agreement pursuant to Section 4(e) above, Sublessor shall have the
following rights and remedies:
(1) Sublessor shall have the right, in its sole discretion, to declare this
Agreement terminated. In such event, Sublessee Five Star shall immediately, vacate the premises,
leaving all leasehold improvements and personal property within the premises, and such items
shall immediately and automatically become the property of Sublessor. Sublessor shall have the
right to operate the premises for any use in its sole discretion. Sublessee Five Star hereby agrees
to execute all documents requested by Sublessor, conveying all rights with respect to said
Sublessee, the leasehold improvements and all personal property to Sublessor. Sublessee Five
Star hereby irrevocably appoints Sublessor as its Attorney in Fact to execute all such documents.
(2) Sublessor shall have the right, in its sole discretion, not to declare this
Agreement terminated, but require the immediate payment by Sublessee Five Star of all moneys
due and owing and the immediate curing of any other defaults which Sublessee may have
committed.
(3) Sublessor shall have all the rights, powers, and remedies provided for
herein, or by law or in equity. Sublessee Five Star shall pay to or at the direction of Sublessor, on
demand, any amounts which would be payable under said Sublease, including interest, which
Sublessor shall have paid under the Lease and which shall be payable by said Sublessee
hereunder, from the date of payment thereof by Sublessor until repaid by Sublessee Five Star.
S. Fuel. For purposes of this Agreement, "Fuel Sales" shall mean all revenue derived
from all business conducted in, on, about or from the Premises whether such revenue is in the
form of sales of goods or services, whether such revenue is evidenced by cash, credit, checks,
services, property or other means of exchange. Fuel sales, however shall not include:
(a) the amount of over rings, refunds, allowances or discounts to customers,
provided the sales with respect to such over rings, refunds, allowances or discounts have
otherwise been included in full fuel sales;
(b) the amount of any excise or sales tax levied upon retail sales and actually paid
over to the appropriate governmental authority;
(c) any amounts derived from the sale of trade fixtures or business operating
equipment after the use tliereof in the conduct of Sublessee Five Star's business at that Premises;
or
(d) any amounts and credits received from insurance companies in the settlement
of claims or loss or damage to the business of Sublessee Five Star transacted at the Premises.
6. Right to Inspect Premises. The Landlord and/or Sublessor 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, to ensure compliance with the terms and conditions of this
Agreement; and ensure that the Premises are being maintained to the satisfaction of the Landlord.
Continuous Use.
Sublessee Five Star shall not use the Premises for any disorderly or unlawful purpose.
The Premises shall be used by said Sublessee for the purpose of operating a first -class Harbor
Master Facility which shall include the operation and management of boating slips, bathhouse,
laundromat and restrooms. Any additional use not expressly mentioned herein must be approved
in writing by the City Manager prior to the commencement of such use.
(a) Operation and ivlaintenance Tasks. In the operation and maintenance of the
Harbor Master Facility, Sublessee Five Star hereby understands and agrees to perform all of the
following tasks and that such tasks are the sole responsibility of said Sublessee:
(1) to maintain facilities in a clean and orderly condition at all times;
(2) to ensure all equipment, shelving, dispensers and displays are in good
repair and are clean;
(3) to restock all sales shelves, displays and tanks when inventory falls to
twenty-five percent (25 %) capacity
(4) to purchase and maintain all supplies and inventory;
(5) to implement a marketing program geared to attract the general boating
public to the ships store;
(6) to develop policies and procedures, with approval of City Manager,
governing employee and customer activities and behaviors;
(7) to implement and enforce the policies referred to in section 6(2)(6);
(8) to notify the City Manager without delay of any maintenance
problems or equipment failures that require action by the Landlord, and
(9) 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.
(b) Maintenance and Utility Responsibilities. Sublessee Five Star will perform
all janitorial and light maintenance functions at the Harbor Master Facility, including, but not
limited to, routine maintenance of fueling station and ships store. At the ships store, said
Sublessee shall maintain at all times an adequate inventory of goods. Sublessee Five Star shall be
responsible for all utility costs associated with the fueling station, boat service dock and ships
store.
(c) Parking. Sublessor agrees and warrants that Sublessee Five Star 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, that is attached
hereto and marked Exhibit "C ", for vehicle parking purposes only. Sublessee Five Star
understands and agrees that throughout the term of this Sublease, and any option terms hereof,
the parking, areas and the modes of ingress and egress may be changed from time to time at the
sole option of the City Manager.
0 (d) Hours of Business. Sublessee Five Star shall continuously during the entire
0
term of the Sublease 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 said Sublessee'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, said Sublessee 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 Sublessee Five Star temporarily discontinued therein (1) on account of
strikes, lockouts or similar causes beyond the control of said Sublessee 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 Landlord; provided, that
such closure shall be only for a period of time necessary to complete the renovation or alteration.
Sublessee Five Star shall to the satisfaction of the Landlord conduct said business in accordance
with sound business practice.
8. Insurance. Sublessor agrees to provide and keep in force, throughout the term of this
Sublease and any extensions thereafter, insurance as provided for in Article 6 of the Lease.
Sublessee Five Star shall be liable to Sublessor for its pro rata share of the cost of said insurance.
Said Sublessee hereby agrees to pay for said pro rata share of insurance upon demand of the
Sublessor. Failure to pay said portion within ten (10) days following the demand by the Sublessor
shall be an event of default.
9. Incorporation of Provisions of the Lease. This Sublease is subject to all of the terms
and conditions of the Lease as it relates to said Sublease and Sublessee Five Star hereby agrees to
assume, discharge, and perform the obligations as required under said Lease.
10. Notices. All notices required or permitted to be given hereunder may be given by
letter, telophase, cable, telegram, mailgram, or any other form of written communication and
shall be deemed to be duly served and given for all purposes:
(a) To Sublessor when received at:
Two Bayland Drive, L.C.
Attn: Roland D_ Laurenzo
c/o RioStar Corporation
214 N_ Nagle
Houston, Texas 77003
Fax: 228 -0135
(b) To Sublessee when received at:
Five Star Ventures, Inc.
ATTN: M. A. Abbasi
9707 Broadley Dr.
Sugar Land, Texas 77478-5115
Fax no. 713 428 -1861 , , . . .. .,
as the case may be. 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. Notices by mail will be deemed received three (3) days
after mailing via First Class, U.S. Mail, postage prepaid.
Sublessor and Sublessee Five Star shall each have the right to specify from
time to time, as its address for purposes of this notice, any address in the United States upon
giving fifteen (15) days written notice thereof to the other party.
11. Assignment and Sublease. Sublessee Five Star shall not assign nor sublease the
Premises without the prior written consent of Landlord, which consent may be withheld at the
sole discretion of Landlord. Any attempt to assign or sublease the premises without the prior
written consent of Landlord, (1) shall be null and void and without force or effect and (2) shall be
an event of default.
12. Prompt Payment. Sublessee Five Star's right to possession and all of Sublessor's
obligations hereunder are expressly contingent on the prompt payment of rent, and the use of the
Premises by said Sublessee is obtained only on the condition that rent is paid on time. Payment
of rent shall be an independent covenant; and all moneys received by Sublessor shall be applied
first to non -rent obligations of Sublessee Five Star then on rent regardless of notations on checks.
At Sublessor's option, Sublessor may at any time require that all rent and other sums be paid
either in cash or by money order.
13. Guaranty. For the consideration herein expressed which is hereby acknowledged
sufficient and received, M. A. Abbasi, (the "Guarantor "), hereby guarantees all payments and
liabilities of Sublessee Five Star and the performance of all obligations of Sublessee Five Star
under the terms and conditions of this Sublease for the duration of the initial term and any
extensions thereof. It is expressly agreed by the parties hereto, the Guarantor, Sublessee Five
Star and Sublessor, that throughout the initial term of the Sublease and any extensions thereof,
the guaranty provided iri this paragraph is a guarantee by the Guarantor to guaranty the
performance of all of said Sublessee'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 Sublessee Five Star hereunder.
14. Indemnification.
(a) Sublessee Five Star agrees to and shall indemnify, hold harmless, and defend
® Sublessor, its officers, agents and employees, from and against any and all claims, losses,
damages, causes of action, suits and liability bf every kind, including all expenses of litigation,
court costs, and attorneys' fees, for injury to or death of any person, or for any and all damages
arising out of or in connection with the Premises and the use thereof, the conduct or management
of said Sublessee's business or activities, or from any act or omission by Sublessee Five Star, its
agents, servants, employees, subcontractors, guests, or invitee, on or about the Premises subject
to this agreement, where such injuries, death or damages are caused by the joint negligence of the
Sublessor and any other person or entity. It is the expressed intention of the parties hereto, both
Sublessee Five Star and the Sublessor, that the indemnity provided for in this paragraph is
indemnity by said Sublessee to indemnify and protect the Sublessor from the consequences of
the Sublessor's own negligence, where that negligence is a concurring cause of the resulting
injury, death or damage. 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 damages
result from the sole negligence of the Sublessor unmixed with the fault of any other person or
entity.
(b) Sublessee Five Star agrees to and shall indemnify, hold harmless, and defend
Landlord, 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 any and all damages
arising out of or in connection with the Premises and the use thereof, the conduct or management
of said Sublessee's business or activities, or from any act or omission by Sublessee Five Star, its
agents, servants, employees, subcontractors, guests, or invitee, on or about the premises subject
to this agreement, where such injuries, death or damages are caused by the joint negligence of the
Landlord and any other person or entity. It is the expressed intention of the parties hereto, both
Sublessee Five Star and the Sublessor, that the indemnity provided for in this paragraph is
indemnity by said Sublessee to indemnify and protect the Landlord from the consequences of the
Landlord's own negligence, where that negligence is a concurring cause of the resulting injury,
death or damage. 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 the Landlord unmixed with the fault of any other person or entity.
(c) In the event that any action or proceeding is brought against the Sublessor or
the Landlord by reason of any of the above, Sublessee Five Star further agrees and covenants to
defend the action or proceeding by legal counsel acceptable to the Sublessor and/or Landlord, as
applicable.
15. Miscellaneous.
(a) Direct Payment of Rents and Fees. Sublessor shall have the option, in its
sole discretion, to require Sublessee Five Star to pay fixed and percentage rent directly to the
Landlord. If Sublessor elects such option, it shall given at least 34 days written notice to said
Sublessee of such requirement.
(b) Governing Law. The laws of the State of Texas shall govern the
® interpretation, validity, performance, and enforcement of this Sublease, and venue for any action
under this Agreement shall be in Harris County, Texas.
® (c) Heirs and Successors. The irr�ns, provisions, and covenants contained in this
Sublease shall apply to and inure to the benefit of and be binding upon the parties hereto and
their respective heirs, successors -in- interest, legal representatives, and assigns.
(d) Attorney Fees. Any other provision of this Sublease notwithstanding, upon
issuance of a final judgement in a court of law, of competent jurisdiction, in an action in which
the Court has ruled on a dispute between the Sublessor and the Sublessee, 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.
(e) Entire Agreement. The Sublease contains the entire agreement between the
parties hereto, and no agreement shall be effective to change, modify, or terminate this Sublease
in whole or in part unless such is in writing and duly signed by the parties hereto.
(f) Multiple Counterparts. This Sublease may be executed in multiple
counterparts and each counterpart shall be considered an original.
(g) Disputes Among Sublessees. Should a dispute arise among the Sublessees
that may effect either sublease or the lease, Sublessor shall have the right to arbitrate with costs
to be taxed to the Sublessees.
(h) Agreement Read. The parties acknowledge that they have read, understand
and intend to be bound by the terms and conditions of this Agreement.
(i) 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.
0) No Waiver. Failure of either party hereto to insist on the strict performance of
any of the agreements herein or to exercise any rights or remedies accruing thereunder upon
default or failure of performance shall not be considered a waiver of the right to insist on and to
enforce by an appropriate remedy, strict compliance with any other obligation hereunder or to
exercise any right or remedy occurring as a result of any future default or failure of performance.
(k) Authority. The officers executing this Agreement on behalf of the parties
hereby represent that such officers have full authority to execute this Agreement and to bind the
party he/she represents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies, each of which shall be deemed to be an on final, but all of which shall constitute but one
and the same Agreement on the. day of , 1996, the date of
approval of the Landlord acting by and through its City i ager.
n
SUBLESSEE: FIVE STAR VENTURES, INC.
By:
President
SUBLESSWA- ) OAAYL DRIVE, L.C.
(SivMTre)
v
(Printed Name)
r
(Title)
APPROVED BY LANDLORD:
Bobby Rountr e, ity Manager
City of Baytown
ATTEST:
Eileen P. Hall, City Clerk
APPROVED AS TO FORM:
Ignacio Ramirez, Sr., City Attorney
0
GUARANTOWM. A. ABBASI
(Signature)
--Zy - /I - 44s 4-s
(Printed Name)
$P'
.A
STATE OF TEXAS
COUNTY OF HARRIS
Before me on this day personally appeared M. A. Abbasi, President of Five Star
Ventures, Inc., a Texas 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, on behalf of said corporation.
SUBSCRIBED AND SWORN before me this �ay of rc� ; ;vs , 1996.
`�' -� I•��d3FR
STATE OF TEXAS
COUNTY OF HARRIS
-�jataryr-Public in and foj the State of Texas
=Sta�te E
N Ta as irrs
Before me on this day personally appeared Ro c-1` N D -D. Lw-e� vl. Nz U , in his
capacity as 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 ZyTt-day of /Q"&us-r- , 1996.
oar
tary Public in and for the S ate of Texas
S , RICHARD P. HGLGIN
•/ N'h PubG� State of Texas
an C
MY "-"a v
Er Aires I031.96
•
STATE OF TEXAS
COUNTY OF HAMS,
Before me on this day personally appeared iM. A. Abbasi in his capacity as Guarantor of Five
Star Ventures, Inc., on behalf of such corporation, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this —L day of , 1996.
=.o.NELLY TE Nota n and for th State of Texas
of Texas �ires 999
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M
LEASE OF P +Z M_(S S
This lease is signed on this ,29 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 Ni. 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 al l 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 ct 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.
ATchiteciw. al and Engincc :ine Fees. Fees paid solely for the preparation ofarchitectura; ejid
® 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 ease: 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.
eratiu 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 Prey. 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. fect (1,500 ft'); to be located on
0 2
tilt Premises parcel consist.in 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
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 appertainin; 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 exicrid 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 ele :t to extend the Basic Term for a third additional period of five (5) ycars 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) ycars, the Lessee may also
elect to extend the Basic Term for a fifth additional period of five (5) years immediately folloK"ing
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
0 3
!:erms and conditions hereof sllali apply during the addition :i . ;,crm(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 Tenn 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
0 4
described in Exhibit "A" to this Lease, plus all intereF!. ,.;crued 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 ($.00 %), plus the following:
YEAR OF A ST;' :-: ! AMOUNT
? >:TERM. .OWED
1 519,000
2 526,315
3 526,315
4 $26,315
5 526,315
The cost of the Premises Improvements used in the calculation of the Annual
Rental shall at no time exceed 5300,000.
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:
0 5
0
r�
Ter.r_,nation/
Termination or.. `. -... "Cancellation
'Expiration of .: `. <::.:. Fee
:Lease
1
$141,000
2
138,222.50
3
127,928.63
4
116,888.46
5
105,047.87
6
92,348.84
7
76,894.13
8
60,318.96
9
42,542.OS
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 Terminati on/Cancel ]all on Fee attributable to the year in which the lease is
terminated. For example, should the lease be teminated one (1) year and eleven (I])
months after the Lease Commencement Date, the Lessee shall pay a
Termination/Cancellation Fee of 5138,222.50 to the Lessor. The Lessee and the
Lessor hereby irrevocably agree that should the Lessee or Lessor fail to satisfactorily
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 shal l be in addition to any
other remedy to which the Lessor may show itself entitled in law or in equity.
2
If the TerminatiopJCancellatton Fee is not paid as and whcn-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 f 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 S 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,.M annual interest rate between seven and one - quarter percent (7.25 %)
and eight percent (8.00 %), plus 56,000 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 hercinabove 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,
exclusive of any and .^li slip rental revenues (whether for cash or other ise) by the
No promotional material given away by the Lessee shat,' be included in Gross Sales.
Taxes on sales and liquor as well as other similar taxes and discounts received by the
L °ssee 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 steal I 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. Gros_ s 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.
Al l 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 shat I 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
shal I at all time remain that of the Lessor and the Lessee.
2.08 Right tQ Inspect p
jerniarsff The Lessor has the right to inspect the Premises at all reasonable
times during the period of this Agreement or any e- ctension thereof for inventory control purposes and
to ensure compliance with the terms and conditions of this Agreement.
2.09 EMUgenqv_MgQageWCDt 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.
• 8
2.10 Construction of Add iti naI Sli s. 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 ofthe construction of the additional slips bythe 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 Cmergencv 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
101 P.P. urposC. 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 amact the general boating public to the ships
store and marina;
0 9
(1)
to develor, policies and procedures, wii► = oproval of the City Manager . bov�rriin�-
V
(g)
employee and customer activities and behaviors;
to implement and the in
enforce policies referred to section 3.020;
(h)
to notify the City Manager without delay in writing of any incident regarding problems
with boat owners, visitors, or the general public; t
(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;
(rn)
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 xvarnmg system that conforms to standard
marina practices.
3.03 Maintenance and Litility 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 Ctonfarnaace to Law. In conducting its business on the ['remises, 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 faw, regulation
or licensing requirement.
3.05 ] e�sQr's �venant of Title and Quiet Eniovment . The Lessor covenants and warrants that
Lessor has the full right and lfwful 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 Succesurs and i n . 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.
0 10
3.07. Parking. The Plan shows the- Premises and the rest oft!,:::.: ;ayland 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 tern of this lease, and any option terms hereof, the parking areas and the modes of ingress and egress
may be changed from time to time at the sole option of the City Manager.
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 ther °in 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 (i) 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 shal I 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 ev:nt of 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 lamest 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 Improvementt_ 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 i e r' 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
•
services. Within five (5) days after the date of this Agreement, architectural and en work on
the design of the Premises shal! begin. All architecturai 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 assi;nment wilt 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 shal l 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, famiture, 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 Pr pg:rtY. 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 signs. 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 overthe 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 e . 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.
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t'.09 Lessor tQ Maintain Fuel Facilities and Lit �tation: The Lessor will rnairtain th°
faciiities located on the premises and will provide a pump for sewage.
4.10 Lessor tQ Realign the Dock Svsteni. 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 S
Maintenance, Repairs and Alterations
5.01 Bv Lesso r. 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 e ee. 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 a lien 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, guaranteein; 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
AR ICLu 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 shal I at al I times during the term of
this Agreement and any extension thereof maintain marina operators legal liability insurance in minimum
limits of S1,000,000 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 Part; 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 Eire EL-tended 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 cefficates
shall also include a provision foz 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 Daman or estruction by CaSualLy. 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.
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l.04 Lessee's Casualty Insurance. The Lessee.will maintain priman- and extended covcraoe
® insurance on its leasehold improvement; 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 Sharing Award. In the event of any condemnation, whether whole or partial, the Lessee shall
be entitled to receive any monies expressly apportioned by a court of competent jurisdiction in its final
judgment. If no amount is so apportioned, the Lessee shall be entitled to nothing under the terms of this
Lease.
6.03 Slip Rental reement . Slip rental a;reemedis 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 ce. 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.
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ART1�7LE b
® Mortgages and Estoppel Certificates
8.01 e see's M rt a e .. The Lessee shall not have the right to mortgage and encumber its
leasehold estate, nor any ofthe 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. Mortgagee's Lis ill . 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 e 1 or M rt age. The Lessor reserves the right to sell, assign, transferor
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 hereaf3er 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 tilts 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
0 16
by the Lessee, and that to the best of the Lessor's knowledge as �f said dpte 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.
ARTICLE 9
Lease Defaults
9.01 Defaults by Lessee. The Lessor shall have the right to declare the Lease in default if the
Lessee:
(a) hails 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 otherw-isc, 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 Unless otherwise stated in this lease, if the Lessee commits a default, the Lessor shall give
the Lessee a written notice specifying the default and the Lessee shall have the following periods of time
to cure the default:
(a) In the case of a failure to pay rent or any other default consisting of the failure to pay
money, the Lessee must remedy the default within seventy-two (72) hours from the receipt of the
notice, provided that if-
(1) The Lessor is required to give the Lessee notice of nonpayment of rent three
(3) times in any twelve month period, and
17
(ii) Each of the notices contains a reminder of the s:, "-stance of this subpart
® 9.02(a), thereafter the Lessor shall no longer be obligated to give tNe 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 hercinabove 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 ofthis 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 properly 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 properly 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 belov4
(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 her after.
0 I8
9.04 Should the Lessor elect to re- enter, under any pro,. i.sion of this lease, or should I!," ;
df- iermined to exist, provided that the Lessor may not withhoid. '],e approval unreasonably.
Thy, security shall consist of cask_, 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
I0.01 Assiprnment and Subleasin ". 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.
Notwithsta_-iding 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 Notice . 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 shal I 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
0 20
-:t by giving due notice of the, new address to the other parties, provided that the new address•n-,iist 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 Heading. 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 Consent . 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 ForceMakure. 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 E$ective Date of ease. 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 e r , of Lea-e: 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 hi ent ofLr,�gal 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
• 21
on a dispute be'- ,veen t_he Lessor and the e, 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 pu.suant 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 shalt be cumulative and the Lessor
shall not be reouired to elect any one nor deemed to have made an election by proceeding to enforce any
one remedy.
10.15 tier 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 f__res�. 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 e t The Lessor by this Agreement does not gi ve consent to Iitigation 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.
0 22
10.18 Indemnity, The Lessee agrees to and shall indemnify, hold harmless and defend, the Lessor,
its, officers, agents and emrioyees, from and against any an-? =:il claims, losses, damages, causes of action;
® suits and liability of every kind, including all expenses of litigation, court costs, and attorneys' tees 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.
CJ
10.19 ua ran t r 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 Lxtensions 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 eve Ili . 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 Pglly Beneficiades. 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 nter 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 pasty 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 ,A.g eement Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
10.24 I_ lultinle C3ripinals,. 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.
2_3
0
ATTEST:
EILEE?v P. MALL, City Cieric
APPROVED AS TO FORM:
r
A , City Attomey
11
LESSEE
Two Bayland Drive, L.C.
Levi
2I 4 6
(Date)
By: t <u 1- 3uvery �D
Ninfa's, Inc.
LESSOR
PETE C. ALFARO, Mayor (Date)
City of Baytown, Texas
STATE OF TEXAS §
® COUNTY OF HARRIS §
Before me on this.day.personally. appeared Roland D. Laurenzo, in his capacity as President 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 lie executed the same for the
purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this 2f day of JLLAJ ' 1996.
rHOLGIN ate at itraz L l, '.1x,1•9 ' Notary Public in and for the tate of Texas
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me on this day personally appeared Roland D. Laurenzo, in his capacity as President 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 lie executed the same for the purposes and
consideration therein expressed.
SUBSCRIBED AND SWORN before me this 2-( day of Jlf 1J(-
i ,•.i st
RICHAPO P. HOLGIN
%� Hayry icJCc, StaI:
Cr ryas
ky Lca+miu;ai Fzpcc 10.31 -95
Okdh 141contractsl6harbortnastcr
Notary Public in and for the tale of Texas
25
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PREMISES IMPROVEMENT
Ship's Store Equipment
I lot MICRO SYSTEM:
3 Micros 2700 WL w/ Memory System Units
3 Micros Integrated Roller Printers
I Micros Magnetic Card Reader
3 Micros Cash Drawers
3 Micros Turret Displays, Programming Installation &
Training
2 True GDM72. 72" 3 -Door Display Cooler, 12 Bottle Shelves
I True GDM49F, 54" 2 -Door Display Freezer
4 sets 4'x 21" x 3 Shelves ISS Shelving
3 Tx 21 " Dunnage Racks New Age
1 True GDIM -50, 54" 2 -Door Bag Ice Display Freezer
1 Masterbuilt GT -60, 2 -Door Display Freezer
True GDM49, 54" 2 -Door Display Cooler, w/ 16 Bottle
2 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 FARRIS )
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 Cle'_'c's File Nu_er G
388038 of-the Official Public Records of Real Property of w_zris
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 COORD.I,`ATES
REFER TO THE STATE PLANE COORDINATE SYSTEM, SOUTH CENTRAL ZOti_, AS
DEFINED BY ARTICLE 5300A OF THE REVISED CIVIL STATUTES OF THE STATE
OF TEXAS, 3.927 DATUM. ALL DISTANCES ARE ACTUAL DISTANCES..
REFERENCE IS MADE TO PLAT OF EVEN DATE ACCOMPANYING THIS METES AND
BOUNDS DESCRIPTION.
COKKENCING at a 2 inch galvanized iron pipe found for the Nest
corner of a 12.34 acre tract of land conveyed to the Ciil of
Baytown by William Marsh Rice University by deed dated Harch 31,
1995, and recorded at County Clerk's File Number R 354555 0` 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,
1969, and recorded at County Clerk's File Number H 310862 of the
Official Public Records of Real Property of Harris County, Te.-cas.
This corner is in the South right of way of State Highway No. 2.46,
right width varies, and has a State Plane Coordinate Value of V
705,022.15 and X = 3,269,733.81.
THENCE South 47 .deg 49 min 20 sec East with the Southwest 1; -. 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 galvanizes 2,--on
pipe in line for the East corner of said 10.00 acre tract ar.= 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 Sau`_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 xvd set for the Northwest corner of this tra= of
land. This corner has a State Plane Coordinate value of
Y = 703,872.7.1 and X = 3,270,666.92.
THENCE South 166 deg o0 min 00 sec East with the ],orth line of z.�2is
tract of land a distance of 142.02 feet to a 1/2 inch iron re_ set
for the Northeast corner of this tract of land.
THENCE South 03 deg 08 min 09 sec blest with the East line of -::�Zis
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 tact of land.
EXHIBIT B
PAGE. NO. 2 - 0 . 9 010 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.'
SUR'V'EYED. August 31, 1995
SURVEYOR'S CERTIFICATE
I, Robert L. Hall,Jr. Reg. Professional Land Surveyor No. 1610 do
hereby certify that the foregoing field notes were prepared from a
survey made on the ground on the date shown and that all lines,
boundaries and landmarks are accurately described therein.
WITNESS my hand and seal at Baytown,
September, A-D., 95.
REG. PROFESSIONAL LAND SURVEYOR
NO. 1610
4530LEAS.FDN
Q�GL57E;�� _
MBERT_L: BALL, JR- .
f' 1610 ..
2� 00
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Texas, this the 5th., day of
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