Ordinance No. 8,416981008 -1
ORDINANCE NO. 8416
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND
THE CITY CLERK TO ATTEST TO THE FIRST AMENDMENT TO THE
GROUND LEASE BETWEEN EDMUNDSON INTERESTS, L.L.C., AND THE
CITY OF BAYTOWN TO EXTEND THAT CONTINGENCY OF THE GROUND
LEASE, WHICH IS BASED UPON THE EXECUTION OF A FACILITY
MANAGEMENT AGREEMENT; AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
WHEREAS, on the 24 "' day of September, 1998, the City Council of the City of Baytown,
Texas, through Ordinance No. 8404, authorized a ground lease with Edmundson Interests, L.L.C.,
( "Edmundson ") for the development and operation of a hotel facility at Bayland Park (the "Ground
Lease "); and
WHEREAS, the Ground Lease contains two contingencies, the first of which is based upon
the execution of a facility management agreement for the operation and management of the
convention center at Bayland Park; and
WHEREAS, such contingency provides that the Ground Lease will automatically expire
should the City or Edmundson fail to execute a facility management agreement for the operation and
management of the convention center to be built at Bayland Park; and
WHEREAS, both Edmundson and the City believe that a 14 -day extension to finalize the
facility management agreement is warranted and that the additional period of time appears to be in
the best interest of the both parties; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: All matters and facts set forth in the recitals above are found to be true, and
are approved as the findings of the City Council of the City of Baytown.
Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the Mayor of the City of Baytown to execute and the City Clerk to attest to the First
Amendment to the Ground Lease between Edmundson Interests, L.L.C., and the City of Baytown
to extend that contingency of the Ground Lease for the development and operation of a hotel facility,
which is based upon the execution of a facility management agreement. A copy of said contract is
attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 3: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
0
981008 -1a
0 INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City
of Baytown this the 8`h day of October, 1998.
PETE C. ALFAR , Mayor
ATTEST:
ILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., ' Attorney
d:klh I I I \council\ ordinances\ ContingencybasedonManagemen tAgreementAmendment.Ordinancc
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40
FIRST AMENDMENT
TO TIM
GROUND LEASE
BY AND BETWEEN
THE CITY OF BA,YTOWN
AND
EDMUNDSON INTEMTS, L.L.C.
STATE OF TEXAS
COUNTY OF HARRIS
This First Amendment ( "Amendment ") to that cevain "Ground Lease" between the City
of Baytown and Edmundson Interests, L.L.C., dated the 24" day of September, 1998, for the
development and operation of a hotel facility at Baylarnd Park is made by and between the same
parties on the date hereinafter last specified.
WITNESSETH:
WHEREAS, on the 24`h day of September, 1998, the City Council of the City of
Baytown, Texas ( "City "), through Ordinance No. 8404, authorized a ground lease with
Edmundson Interests, L.L.C., ( "Edmundson ") for the development and operation of a hotel
acUlty at Bayland Park (the "Ground Lease "); and
Wf EREAS, the Ground Lease contains two contingencies, the first of which is based
upon the execution of a facility management agreement for the operation and management of the
convention center at Bayland Park; and
WHEREAS, such contingency provides that the Ground Lease will automatically expire
should the City or Edmundson f4l to execute a facility managcment agreement for the operation
and snanagerne -jt of the convention center to be built at Bayland Park; anal
WHEREAS, both Edmundson and the City believe that a 14 -day extension to finalize the
facili y :ranag, --cut ag;ev~ment is warranted and that the additional period of time appears to be
in the best interest of the both parties;
NOW THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained, the parties hereto do hereby mutually agree as follows;
L
Unless a different meaning clearly appears from the context, words and phrases as used
in this Amendment shall have the same meanings as in the Ground Lease.
First Amendment to Ground Lease, Page 1
0
II:
Article III "Term," Subsection C "Contingency based on Management Agreement" is
hereby amended to read as follows;
C. CoatingezcX based on Management A eernent. Both Lessee and Lessor
understand and agree that this Lease, with the exception of the indemnity
provided in Article III.D, which indemnity obligations shall not cease, shall
automatically expire and no longer be in force and effect should Lessee or Lessor
W to execute a Facility Management Agreement for the management and
operation of the hotel facility on or before the 22nd day of October, 1998. Neither
Lessee nor Lessor shall incur any liability for failure to execute the Facility
Management Agreement contemplated herein.
III.
Article IV. "Rent; Personal Property Taxes; Utilities," Subsection (A)(1)(a) Rental payment
Subsequent to Issuance of certificates of Occupancy" is hereby amended to read as follows:
Rental Payment Subsequent to Issuance of Certificates of Occupancy.
a.
Rental PaYment. After the Lessor has issued certificates of occupancy for
both the hotel facility and the convention center, as rental payment for
this Lease, Lessee shell manage and operate the convention center in
accordance with the teens and conditions contained in the Facility
Management Agreement, which agr"mcnt must be executed by both
Lessor and Lessee on or before October 22, 1998, at no cost and expense
to Lessor. Should the Facility Management Agreement not be executed
by both parties hereto on or before the above - referenced date, then this
ground lease shall automatically expire in accordance with Article III.0
and shall no longer be in full Force and effect. Additionally, should such
Facilities Management Agreement be terminated or expire during the
Term hereof, Lessee hereby agrees fo pay rent on a quarterly period in
accordance with this article. For purposes hereof, a "quarterly period"
shall mean a quarter of the calendar year. In a calendar year, the first
quarter is composed of the months of January, February, and March; the
second quarter is composed of the months of April, May, and June; the
third quarter is composed of the months of July, August and September;
and the fourth quarter is composed of the months of October, November
and December. On or before the last day of January, April, July and
October, Lessee shall pay the Lessor the amount of ONE AND N01100
DOLLARS (51.00) per day for each and every room which was occupied
during the preceding quartzr, regardless of whether Lessee received
compensation for such occupancy. The last payment shall be paid 'on or
before the last day of the month following the expiration or termination of
this Lcase. As used in this paragraph, a room of the hotel facility will be
deemed occupied if the use or possession or the right to the use or
possession of such room has been granted to a person under any tease,
concession, permit, right or access, license, contract or agreement. and if
such room is orte which is ordinarily used for sleeping.
First Amendment to Ground Lease Page 2
Iv.
Article XII "Default; Remedies," Subsection A(4) "Lessee's Default" is hereby amended
to read as follows:
4. Failure to comply with any of the terms and conditions of the Facility
Management Agreement dated October 22, 1998, which failure results in the
termination of such agreement;
V.
Article XII "Default; Remedies," Subsection F "Effect of Termination of this Facility
Management Agreement of Even Date" is hereby amended to read as follows:
F. Effect of Termination of Facility Managementement. Manager
underds and agrees that should this Lease be terminated due to a material
breach as described hereinbelow by either party, such termination may result in
the automatic termination of the Facility Management Agreement dated October
22, 1998, at the sole option of the Owner. The Facility Management Agreement
may be terminated on the date and at the time this Lease is terminated and shall be
deemed to be terminated for cause by Owner.
VI.
The provisions of this Amendment and the provisions of the Ground Lease should be
read together and construed as one agreement provided that, in the event of any conflict or
inconsistency between the provisions of this Amendment and the provisions of the Ground
Lease, the provisions of this Amendment shall control.
IN WITNESS WFIEREOF, the parties hereto have executed this Amendment in uaultiple
copies, each of which shall be deemed to be an original, but all of which shall constitute but one
and the saute amendment, this $t' day of October, 1998.
CITY OF BAYTOWN, TEXAS
By: (? a d44
Pete C. Alfaro, Mayor
ATTEST:
Eileen P. Hall, City Clerk
First Amendment to Ground Lease, Page 3
APPROVED AS TO FORM:
acio Rarnirez, Sr., City rney
EDMUNDSON INTERESTS,
William L. Edmundson, lII, President
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, J!Iaff) ."Chintiinic5Pkithe undersigned notary public, on this day
personally appeared William L. Edmundson, III, in his capacity as President of Edmundson Interests,
L.L.C., on behalf of such corporation,
(I one)
known to me;
proved to me on the oath of
; ar
proved to me through his current Ii4
(description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of the
acknowledging person)
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that
he executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this O ray of October, 1998.
Notary Public in and for the State of
Texas
My commission expires: oto e
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First Amendment to Ground !.ease, Page 4