Ordinance No. 8,500990128 -2
ORDINANCE NO. 8500
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 SECOND 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 COMMENCEMENT OF
CONSTRUCTION OF THE HOTEL FACILITY; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
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
facility at Bayland Park (the "Ground Lease "); and
WHEREAS, the Ground Lease contains two contingencies, the second of which is based
upon the commencement of construction of a three- or four -story hotel facility with a swimming
pool, restaurant, and health facility and bearing the name of a nationally- recognized hotel
corporation at Bayland Park; and
WHEREAS, such contingency provides that the Ground Lease will automatically expire
on January 22, 1999, should Edmundson fail to commence construction of the hotel facility by
such date; and
WHEREAS, both Edmundson and the City believe that a 90 -day extension to commence
construction is warranted and that the additional period of time appears to be in the best interest
of 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
Second 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 start of construction of a hotel
facility. 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.
990128 -2a
® INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 28th day of January, 1999.
/� C. a-j�p��
PETE C. ALFARO, Mayor
ATTEST:
EILEEN P.. HALL, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SA31ty Attorney
• d:klhI37\ council\ ordinances\ GdmundsonContingencybasedon Construct ion0I2099 .Ordinance
2
® SECOND AMENDMENT
TO THE
GROUND LEASE
BY AND BETWEEN
THE CITY OF BAYTOWN
AND
EDMUNDSON INTERESTS, L.L.C.
STATE OF TEXAS §
COUNTY OF HARRIS §
•
This Second Amendment ( "Amendment ") to that certain "Ground Lease" between the
City of Baytown and Edmundson Interests, L.L.C., dated the 241" day of September, 1998, for
the development and operation of a hotel facility at Bayland Park is made by and between the
same parties on the date hereinafter last specified.
WITNESSETH•
WHEREAS, on the 24" day of September, 1998, the City Council of the City of
Baytown, Texas ( "City" or "Lessor "), through Ordinance No. 8404, authorized a ground lease
with Edmundson Interests, L.L.C., ( "Edmundson" or "Lessee ") for the development and
operation of a hotel facility at Bayland Park (the "Ground Lease "); and
WHEREAS, the Ground Lease contains two contingencies, the second of which is based
upon the commencement of construction of a three- or four -story hotel facility with a swimming
pool, restaurant, and health facility and bearing the name of a nationally - recognized hotel
corporation at Bayland Park; and
WHEREAS, such contingency provides that the Ground Lease will automatically expire
on January 22, 1999, should Edmundson fail to commence construction of the hotel facility by
such date; and
WHEREAS, both Edmundson and the City believe that a 90 -day extension to commence
construction 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:
I.
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.
Second Amendment to Ground Lease, Page I EXHIBIT A
CJ
II.
Second Recital of the Ground Lease is hereby amended to read as follows:
Lessee's rights hereunder are contingent upon Lessee beginning, within two hundred
ten (2 10) days following the Effective Date, construction of a three (3) or four (4)
story hotel facility, which complies with all specifications and requirements set forth
herein and is acceptable to Lessor. The hotel facility shall include a swimming pool,
restaurant, and health facility, and shall bear the name and enjoy all the reservation
and other services provided by a nationally- recognized hotel corporation.
III.
Article III "Term," Subsection C "Contingency based on Management Agreement" of the
Ground Lease is hereby amended to read as follows:
D. Contingency based on Approvals and Start of Construction. Subject to the
earlier expiration of this Lease in accordance with Article IILC, Lessee shall have the
right, from and after the Effective Date until the expiration of two hundred ten (2 10)
days after the Effective Date to conduct, at Lessee's sole expense, such inspections,
analyses, studies, and tests of the Premises; to make application for such licenses,
permits, and approvals as Lessee may deem, in Lessee's reasonable opinion,
necessary or desirable in connection with the development of the Project
Improvements (hereinafter defined); and to begin construction of a hotel facility
permitted hereby. The date upon which this contingency is satisfied is herein called
the "Commencement Date."
LESSEE HEREBY AGREES TO INDEMNIFY, DEFEND, AND
HOLD HARMLESS LESSOR, ITS OFFICERS, AGENTS, AND
EMPLOYEES FROM AND AGAINST ANY AND ALL LOSS,
DAMAGES, CLAIMS, REMEDIES, DEFENSES, DEMANDS,
SUITS, CAUSES OF ACTION, LIABILITIES, COSTS AND
EXPENSES, OF WHATEVER KIND OR CHARACTER, FOR
INJURIES, DEATH, OR DAMAGES ARISING OUT OF OR IN
ANY WAY RELATED TO THE EXAMINATION OF THE
PREMISES BY LESSEE, ITS OFFICERS, AGENTS AND /OR
EMPLOYEES, OR SUCH INJURIES, DEATHS OR DAMAGES
ARE CAUSED BY THE JOINT NEGLIGENCE OF LESSOR, ITS
OFFICERS, AGENTS, AND /OR EMPLOYEES AND LESSEE, ITS
SUBTENANTS, ASSIGNEES, OFFICERS, AGENTS,
EMPLOYEES, CONTRACTORS, GUESTS, AND /OR INVITEES
AND /OR BY THE JOINT OR SOLE NEGLIGENCE OF LESSEE,
ITS SUBTENANTS, ASSIGNEES, OFFICERS, AGENTS,
EMPLOYEES, CONTRACTORS, GUESTS, AND /OR INVITEES.
IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO,
Second Amendment to Ground Lease, Page 2
lJ
0
BOTH LESSOR AND LESSEE, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY
LESSEE TO INDEMNIFY, PROTECT AND DEFEND LESSOR,
ITS OFFICERS, AGENTS, AND EMPLOYEES, FROM (I) THE
CONSEQUENCES OF THE NEGLIGENCE OF LESSOR, ITS
OFFICERS, AGENTS, AND EMPLOYEES, WHERE THAT
NEGLIGENCE IS A CONCURRING CAUSE WITH THAT OF
THE LESSEE, ITS SUBTENANTS, ASSIGNEES, OFFICERS,
AGENTS, EMPLOYEES, CONTRACTORS, GUESTS, AND /OR
INVITEES, OF THE INJURY, DEATH OR DAMAGE AND /OR
(II) THE CONSEQUENCES OF THE LESSEE'S, INCLUDING ITS
SUBTENANTS', ASSIGNEES', OFFICERS', AGENTS',
EMPLOYEES', CONTRACTORS', GUESTS', AND /OR
INVITEES', JOINT AND SOLE NEGLIGENCE.
FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH SHALL HAVE NO APPLICATION TO ANY
CLAIMS, DAMAGES, CAUSES OF ACTION, SUITS, OR
LIABILITY WHERE THE INJURY, DEATH, OR DAMAGE
RESULTS FROM THE SOLE NEGLIGENCE OF LESSOR.
IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT
AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, LESSEE
FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY.
Notwithstanding any provision of this Lease to the contrary, Lessee shall have the
right and option to terminate this Lease with the exception of the indemnity provision
enumerated hereinabove, which indemnity shall not expire, at anytime prior to the
Commencement Date by providing written notice of such election to Lessor
whereupon this Lease shall terminate and be of no further force or effect.
In the event Lessee has not started construction within two hundred (210) days
following the Effective Date, this Lease with the exception of the indemnity
provision enumerated hereinabove, which indemnity shall not expire, shall
automatically terminate and be of no further force or effect. However, should Lessee
desire an extension of time, Lessee must request such an extension in writing at least
twenty -one (2 1 ) days prior to the expiration of the two hundred ten (2 10) day period.
The written request must state the reason the extension is needed as well as the
amount of time Lessee reasonably believes is necessary in order to commence
construction and to secure and provide to Lessor an agreement with a nationally
recognized hotel operator ( "Hotel Operator ") satisfactory to Lessor in form and
substance satisfactory to Lessee and in compliance herewith, and final approval of the
project plans therefor as set forth below. Upon receipt of the extension request,
Lessor in its sole discretion may grant an extension for any amount of time it believes
is in the best interest of Lessor.
Second Amendment to Ground Lease, Page 3
IV.
The parties hereby expressly agree that the Facility Management Agreement entered into
and effective on the 22nd day of October, 1998, shall not terminate based upon the expiration of
the Ground Lease on January 22, 1999, caused by Lessee's failure to satisfy the contingency of
the Ground Lease requiring the commencement of construction of the hotel facility by such date.
Rather, said Facility Management Agreement shall continue in full force and effect, unless and
until otherwise terminated by the Lessor in accordance with the terms therein.
V.
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 WHEREOF, the parties hereto have executed this Amendment in multiple
copies, each of which shall be deemed to be an original, but all of which shall constitute but one
and the same amendment, this 28th day of January, 1999.
CITY OF BAYTOWN, TEXAS
By: / ..1 , C
Pete C. Alfaro, Mayor
ATTEST:
Eileen P. Hall, City Clerk
APPROVED AS TO FORM:
Icio Ramirez. Sr.. C Attorney
EDM DSON INTERESTS, L.L.C.
III, President
Second Amendment to Ground Lease, Page 4
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, I thIliP- 4, the 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,
known to me;
proved to me on the oath of ; or
proved to me through his current j q iCl f m.lei CARS
{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}
(✓ one)
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 10 day of , 1999.
41,111,,,,, SHARON A . MARSH
r. jL : = Notary Pirbiic , State at Texas
iE "Ac
/ 1 t My Commission Expires
«:, MARCH
SS 12,2000
1111,\ ! errs %'R i"� :✓:7
Notary Public in and for the State of
Texas
My commission expires: 3 - ja - .2 D D
c:kth 138\Contracts\Edmundsonlnterests\GoundLease\S econdAmen dment2GroundLease2ExtendContingency012099
Second Amendment to Ground Lease, Page 5