Ordinances No. 14,294ORDINANCE NO. 14,294
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE
CITY CLERK TO ATTEST TO THE SECOND AMENDMENT TO THE LEASE OF
PREMISES WITH SOLID WASTE, LTD. INC.; MAKING OTHER PROVISIONS
RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs
the City Manager to execute and the City Clerk to attest to the Second Amendment to the Lease of
Premises with Solid Waste, Ltd. Inc. A copy of said amendment is attached hereto, marked Exhibit "A,"
and made a part hereof for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the City of
Baytown, this the 121h day of December, 2019.
B DON CAPETILLO, Major
ATTEST:
&�) Y'Q 5= _
L , Qity Clerk
"Ilk
gOJ�A/ oQQ�
APPROVED AS TO FORM:
P
NACIO RAMIREZ, S C Ci y Attorney
COBFS01 Legahl(arenTiles City Council Ordinances\2019\December 12 SecondAmendment2ShipsStoreLease.doc
Exhibit "A"
SECOND AMENDMENT
TO THE LEASE OF PRENIISES
BETWEEN
THE CITY OF BAYTOWN
AND
SOLID WASTE, LTD. INC.
STATE OF TEXAS
KNOWN BY THESE PRESENTS:
COUNTY OF HARRIS
This Second Amendment to the Lease of Premises ("Second Amendment"), is made by and
between the City of Baytown, a home -rule municipal corporation, located in Harris and Chambers
Counties, Texas ("Lessor"), and Solid Waste, Ltd. Inc., a Texas corporation, ("Lessee") on the date
hereinafter last specified.
WITNESSETH:
WHEREAS, on the 41h day of February, 2002, the City entered into a Lease of Premises
Agreement (the "Lease") with Solid Waste, Ltd. Inc. ("Lessee") for the lease and operation of the Harbor
Master Facility located on a portion of Bayland Island; and
WHEREAS, Lessee exercised its right to extend the Lease for the first five-year option period,
which commenced the 4`h day of February, 2005; and
WHEREAS, thereafter on January 24, 2008, Lessee exercised its right to extend the Lease for the
second five-year option period, which commenced the 41h day of February, 2010; and
WHEREAS, on the 19'h day of March, 2012, the parties amended the Lease to update the rental
payments due to reflect the consumer price index (urban) increases occurring during the time the Lease
payments were suspended due to damages caused by Hurricane Ike ("First Amendment'); and
WHEREAS, thereafter, Lessee exercised its right to extend the Lease for the third and final five-
year option period, which commenced the 4'h day of February, 2015; and
WHEREAS, the parties desire to amend the Lease again to extend the term of the lease until the
4'h day of February 2022;
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, the parties hereto do hereby mutually agree as follows:
Interpretation. Unless a different meaning clearly appears from the context, words and phrases as
used in this Second Amendment shall have the same meanings as in the Lease and the First
Amendment.
2. Amendments.
a. Article 2 "Term and Rental," Section 2.02 "Option Period" of the Lease is hereby
amended to read as follows:
Second Amendment, Page I
2,02 Option Period. Provided Lessee has met all of the obligations of this
lease, the Lessee has the right to extend the Term for an additional period
of five (5) years. If the Lessee elects to extend the Term for the first
additional period of five (5) years and if Lessee has met all of the
obligations of this Lease, the Lessee may also elect to extend the Term
for a second additional period of five (5) years immediately following
the first additional period. If the Lessee elects to extend the Term for the
second additional period of five (5) years and if Lessee has met all of the
obligations of this Lease, the Lessee may also elect to extend the Term
for a third additional period of five (5) years immediately following the
second additional period. Thereafter, the Term shall be extended
automatically until February 3, 2022.
b. Article 2 "Term and Rental," Section 2.04 "Rental Payments" of the Lease is hereby
amended to read as follows:
2.04. Rental Pam.
(1) January 1, 2003 - December 31, 2004. Starting on January 1, 2003, and
continuing through December 31, 2004, Lessee agrees to pay Lessor rent
in monthly payments as follows:
January1, 2002................................................................................. $1.00
February1,2002................................................................................
$1.00
March1,2002....................................................................................
$1.00
April1, 2002.....................................................................................
$1.00
May1,2002................................................................................
$1,000.00
June1,2002................................................................................
$1,000.00
July1, 2002................................................................................
$1,000.00
August1,2002............................................................................
$2,000.00
September1, 2002.....................................................................
$2,000.00
October1, 2002.........................................................................
$2,000.00
November 1, 2002.....................................................................
$2,000.00
December 1, 2002, and the first of each subsequent month through
December 1, 2003, the monthly base rent shall be $3,000.00 per month.
(2) JanuM 1, 2004 - August 30, 2008. Starting January 1, 2004, through
August 30, 2008, all rent shall be increased yearly by an applicable CPI
adjustment. The first CPI adjustment shall be calculated based upon the
base rent due on January 1, 2004, and increased by (i) the Consumer
Price Index (Urban) of the twelve months prior to January 1, 2004, or (ii)
12.5%, whichever is less. The base rent shall again be increased each
year thereafter based upon the base rent due the then previous year and
either (i) the Consumer Price Index (Urban) of the twelve months prior to
the five-year anniversary date or (ii) 12.5%, whichever is less. The total
CPI increase in any five year (5) term shall not exceed 12.5%.
(3) September 1, 2008 - March 31, 2012. Starting September 1, 2008, to
March 31, 2012, there shall be no rental payment due under this section.
Second Amendment Page 2
(4) April 1, 2012 - March 1, 2013. For one year commencing on April 1,
2012, Lessee agrees to pay Lessor rent in monthly payments as follows:
April1, 2012..................................................................................... $1.00
May1, 2012......................................................................................
$1.00
June1, 2012......................................................................................
$1.00
July1, 2002.......................................................................................
$1.00
August 1, 2012............................$3,905
x (# Occupied Slips/Total Slips)
September 1, 2012
......................$3,905 x (# Occupied Slips/Total Slips)
October 1, 2012..........................$3,905
x (# Occupied Slips/Total Slips)
November 1, 2012
......................$3,905 x (# Occupied Slips/Total Slips)
December 1, 2012 ........................$3,905
x (# Occupied Slips/Total Slips)
January 1, 2013............................$3,905
x (# Occupied Slips/Total Slips)
February 1, 2013..........................$3,905
x (# Occupied Slips/Total Slips)
March 1, 2013..............................$3,905
x (# Occupied Slips/Total Slips)
As used in the above -referenced formula, the number of occupied slips
shall be determined on the last day of the previous month.
(5) April 1, 2013 - March 1, 2014. For one year commencing on April 1,
2013, Lessee agrees to pay Lessor rent in monthly payments as follows:
$3,905 x ((# Occupied Slips X 2) /Total Slips);
provided that, once at least half of the slips are occupied, Lessee agrees
to pay Lessor $3,905 per month as rent, regardless if occupancy falls
below 50% thereafter.
As used in the above -referenced formula, the number of occupied slips
shall be determined on the last day of the previous month.
(6) April 1, 2014 - March 3, 2022. From and after April 1, 2014, Lessee
agrees to pay lessor $3,905 per month as rent_
From and after April 1, 2013, all rent shall be increased yearly by an applicable
CPI adjustment. The first CPI adjustment shall be calculated based upon the base
rent due on April 1, 2013, and increased by (i) the Consumer Price Index (Urban)
of the twelve months prior to April 1, 2013, or (ii) 12.5%, whichever is less. The
base rent shall again be increased each year thereafter based upon the base rent
due the then previous year and either (i) the Consumer Price Index (Urban) of the
twelve months prior to the five-year anniversary date or (ii) 12.5%, whichever is
less. The total CPI increase in any five-year (5) term shall not exceed 12.5%.
C. Article 2 "Term and Rental," Section 2.05 "Rental Payments" of the Lease is hereby
amended to read as follows:
2.05. Additional Rent.
(1) January 1, 2003 - December 31, 2004. Starting on January 1, 2003, and
continuing through December 31, 2004, as additional rent, Lessee shall
Second Amendment. Page 3
pay Lessor 5% of monthly gross revenues according to the formula
below, which additional rent shall be paid monthly within 45 calendar
days after the end of the month. Such additional rent shall be calculated
as follows:
Additional Rent = 5% x (Monthly Gross Revenues - (Base Rent/.05))
By way of example:
➢ If monthly gross revenues in July of 2003 are $40,000 then
additional rent would be $0.00.
.05 x (40,000-(3,000/.05)) = .05 x (40,000-60,000) _
.05 x-20,000 = -1000
therefore no additional rent due.
➢ If monthly gross revenues in July of 2003 are $75,000 then
additional rent would be $500.00.
.05 x (75,000-(3,000/.05)) = .05 x (75,000-60,000) _
.05 x 10,000 = 500
therefore $500.00 in additional rent would be due.
If the above -referenced formula yields a negative product no additional
rent shall be due. Total monthly rent shall not exceed $5,000.00 per
month.
(2) January 1. 2005 — August 30, 2008. Starting on January 1, 2005, and
continuing through August 30, 2008, as additional rent, Lessee shall pay
Lessor 5% of monthly gross revenues according to the formula below
which additional rent shall be paid monthly within 45 calendar days after
the end of the month. Such additional rent shall be calculated as follows:
Additional Rent =
5% x (Monthly Gross Revenues - (Base Rent/.05))
If the above -referenced formula yields a negative product, no additional
rent shall be due.
(3) September 1, 2008 - March 31, 2012. Starting September 1, 2008, to
March 31, 2012, there shall be no additional rent due under this section.
(4) Starting on April 1, 2012, and continuing through March 3, 2022, as
additional rent, Lessee shall pay Lessor 5% of monthly gross revenues
according to the formula below which additional rent shall be paid
monthly within 45 calendar days after the end of the month. Such
additional rent shall be calculated as follows:
Additional Rent =
5% x (Monthly Gross Revenues - (Base Rent/.05))
Second Amendment, Page 4
If the above -referenced formula yields a negative product no additional
rent shall be due.
"Gross Revenues" as used in this section shall mean all amounts received from
whatever sources which are received in connection with the operation of the
Premises Improvements subject to offsets only for refunds, credit card company
fee charges, employee discounts and sales tax. Lessee shall deliver to Lessor by
the 15th of each month, a report in a format approved by the City Manager the
gross revenues of the previous month. Said report shall contain 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. Lessee must keep such
reports and the supporting documentation therefore for at least 4 years.
Lessor shall have the right at any time to audit any and all of the books and
records which in any way relate to gross revenues or the calculation of additional
rent to be paid to Lessor. Lessee shall make all of these records readily available
for the examination within ten days of a request therefore. If any audit by Lessor
shows a deficiency in the amount of additional rent paid to Lessor by more than
five percent (5%), then the cost of the audit shall be paid by Lessee. The
additional rent due and the cost of the audit shall be paid within 10 days' written
notice of such deficiency and the cost of the audit.
Interpretation. The provisions of this Second Amendment and the provisions of the First
Amendment and the provisions of the Lease should be read together and construed as one
agreement provided that, in the event of any conflict or inconsistency between the provisions
therein, the order of priority of documents shall be this Second Amendment, the First Amendment
and then the Lease. Nothing contained in this Second Amendment or in the First Amendment or
the Lease shall be construed in any way to limit or to waive the City's sovereign immunity.
Non -Waiver: Release. By this Amendment, the City does not consent to litigation or suit, and the
City hereby expressly revokes any consent to litigation that it may have granted by the terms of
this Agreement or any other contract or agreement, any charter, or applicable state law. Lessee
hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all
claims, demands, and causes of action of every kind and character, including the cost of defense
thereof, for any injury to or death of any person (whether they be either of the parties hereto, their
employees, or other third parties) and any loss of or damage to property (whether the property be
that of either of the parties hereto, their employees, or other third parties) that is caused by or
alleged to be caused by, arising out of, or in connection with this Amendment regardless of
whether said claims. demands, and causes of action are covered in whole or in part by insurance.
S. Authority. The officers executing this Agreement on behalf of the parties hereby confirm that
such officers have full authority to execute this Agreement and to bind the party he/she
represents.
Effective Date. The effective date of this Amendment shall be on the date this Second
Amendment is signed by the City Manager.
Second Amendment, Page 5
IN WITNESS HEREOF, the parties have executed this agreement in duplicate originals at
Baytown, Harris County, Texas.
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
CITY OF BAYTOWN
RIC14ARD L. DAVIS, City Manager
SOLID WASTE, LTD. INC.
--77a JJ
Signature
r^ l Wad
Printed Name
Flncs I
Title
STATE OF TEXAS §
COUNTY OF HARR,IIS §
Before me, f'1 Y _ , the under$igned notary public, on this day personally
appeared lam? (fcc 'a -,I( Jo of , the of SOLID WASTE, LTD. INC., on
behalf of such limited partnership
\v""- known to me;
proved to me on the oath of ; or
proved to me through his/her current
(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)
(check one)
Second Amendment, Page 6
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that
he/she executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this2j day of ��, 2019.
"olrarf,i� BRENDA L. COOPER
?a° A nz Notary Public, State of Texas
��'•!`� 'v� Comm. Expires 08-20.2022
°;,0 Notary ID 1582727
Al'�o '6C:L 4Za
Notary Public in and for he State of
Texas ,,pp
My commission expires:4`-'mb—'-I —
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Second Amendment, Page 7