Ordinance No. 9,304ORDINACE NO. 9304
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER I OF THE CITY OF
BAYTOWN TO EXECUTE TERMINATION OF LEASE AGREEMENTS WITH ONE
BAYLAND DRIVE, L.C., AND TWO BAYLAND DRIVE, L.C., TO TERMINATE THE
GROUND LEASES FOR THE RESTAURANT, MARINA AND SHIP STORE AT
BAYLAND ISLAND; 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
City Manager of the City of Baytown to execute a Termination of Lease Agreement with One Bayland Drive,
L.C., to terminate the ground lease for the restaurant at Bayland Island. A copy of the Termination of Lease
Agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the
City Manager of the City of Baytown to execute a Termination of Lease Agreement with Two Bayland Drive,
L.C., to terminate the ground lease for the marina and ship store at Bayland Island. A copy of the Termination
of Lease Agreement 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 20 day of January, 2002.
PETE C. ALFARO, Mayor
A'ITEST:
GAY SMITH, City Clerk
APPROVED AS TO FORM:
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® Termination of Lease Agreement
STATE OF TEXAS §
COUNTY OF HARRIS §
This Termination of Lease Agreement (this "Agreement ") is made and entered into by
and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers
Counties, Texas; hereinafter called "Lessor;" and ONE BAYLAND DRIVE, L.C., having its
principal place of business at 214 N. Nagle, Houston, Texas 77003, and NINFA'S HOLDINGS,
L.P., having its principal place of business at 2727 Canal Street, Houston,,Texas 77003 -1526,
hereinafter collectively called "Lessee."
I.
Termination
Lessor and Lessee, parties to that certain Lease of Premises dated November 17, 1995,
which is attached as Exhibit A (the "Lease "), hereby mutually agree to terminate the Lease
subject to and contingent upon Lessee's satisfaction of the following terms and conditions:
01 Any capitalized term not defined herein shall have the definition ascribed thereto in the
Lease, unless the context clearly requires otherwise.
1.02 The effective date of the termination shall be December 31, 2001, ( "Termination Date ")
and no further notice of such termination be required by either party.
03 Lessor agrees and acknowledges that Lessee has: (i) vacated the Premises and returned it
to Lessor in a condition acceptable to Lessor; (ii) made any and all repairs to the Premises
required by Section 5.03 of the Lease; (iii) removed all of Lessees' property (as defined by
Section 4.05 of the Lease) from the Premises as required by Section 2.03 of the Lease; and
(iv) left on the Premises all of Lessor's property (as defined by Section 4.06 of the Lease).
1.04 On the Termination Date, Lessee shall tender to Lessor a promissory note in the form
attached hereto as Exhibit B (the "Promissory Note ") in which Lessee agrees to pay all
outstanding rents and monies under the Lease yet to be paid.
1.05 Lessor and Lessee confirm, acknowledge and agree that as of the Termination Date, the
Lease is terminated and is of no force and effect, and that, from and after said date, no party
shall have any further rights, duties or obligations thereunder, unless expressly referenced
herein. Lessee hereby waives and releases any right, title and interest that Lessee may have
with respect to the Premises, and Lessee and Lessor hereby mutually release each other from
any obligations and claims arising under the Lease or in connection with the Premises, except
as otherwise provided in Section 1.06 below.
• 1.06 Lessee acknowledges and agrees that termination of the Lease does not relieve Lessee of
any existing obligations to third parties. Lessee acknowledges and agrees that nothing in this
EXHIBIT A
Agreement shall be construed to relieve it of its obligations under the Promissory Note or
under the indemnity provisions provided for in the Lease, which indemnity shall survive
termination or earlier expiration of the Lease and this Agreement.
R.
General Provisions
2.01 Neither party shall be liable or deemed in default for any delay or failure in performance
of this Agreement resulting directly or indirectly from any cause beyond the control of the
Party-
2.02 No action, regardless of form, arising out of the transactions under this Agreement, may be
brought by Lessee more than one year after the cause of action has occurred.
2.03 if any part, term, or provision of this Agreement shall be held illegal, unenforceable, or in
conflict with any law of a federal, state or local government having jurisdiction over this
Agreement, the validity of the remaining portions or provisions shall not be affected by such
holding.
2.04 A waiver by Lessee or Lessor of any breach of any term, covenant, or condition
contained in this Agreement shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant, or condition contained in this Agreement, whether of
the same or different character.
2.05 This Agreement may not be assigned, sub- licensed or otherwise transferred by Lessor or
Lessee without the written consent of the other party. Any purported assignment, sub- license
or transfer in violation of this provision shall be void. Subject to the foregoing, this Agreement
shall inure to the benefit of and be binding upon Lessor and Lessee only.
2.06 This Agreement constitutes the entire agreement and all understandings between the parties
concerning the subject matter hereof and supersedes all prior proposals or other
communications between the parties, oral or written, except for the Promissory Note effective
December 31, 2001. No modifications and amendments hereto shall be binding upon either
party unless in writing and signed by a duly authorized representative of the parties.
2.07 This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas, regardless of the place of execution or
performance. The place of making and the place of performance for all purposes shall be
deemed to be Baytown, Harris County, Texas.
2.08 The individuals executing this Agreement warrant and represent that they are duly
authorized to execute this Agreement on behalf of Lessor and Lessee as binding act and
agreement of Lessor and Lessee, respectively.
•
2.09 In the event of any ambiguity in any of the terms of this Agreement, it shall not be
construed for or against any party hereto on the basis that such party did or did not author the
same.
2.10 Lessee agrees that in the performance of its undertakings and obligations under this
Agreement, Lessee will strictly observe and abide by all rules, regulations and laws of the
United States of America, the State of Texas and the City of Baytown, as they now exist or
may hereinafter be enacted or amended.
2.11 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 THEREOF AND INTENDING TO BE LEGALLY BOUND, the parties
have caused this Agreement to be signed by its duly authorized officer on the _ day of January
2002.
City of Baytown, TX
Its:
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One Bayiand Drive, L.C.,
a Texas limited liability company
alid
t
Ninfa's Holdings, L.P.
By: Ninfa's Holdings Management,
L.L.C, general partner of Ninfa's
Holdings, L.P.
r
C.
STATE OF TEXAS §
COUNTY OF HARRIS § �
Before me, the undersigned notary public, on this day personally appeared
in his capacity as President of ONE BAYLAND DRIVE, L.C.
G. v . v.
✓ known to me
proved to me on the oath of or
proved to me through his 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)
(� 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 day of S v 2002.
CRISTEUA R PEREZ
Notary Public, State of Texas Notary Public � for the State of Texas
My Commission Expires
N' of 10.19 -2004
•
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, the undersigned notary public, on this day personally appeared Berrid-�nintlla
in his capacity as Ana a'gei of NINFA'S HOLDINGS MANAGEMENT, L.L.C., general
partner of NINFA'S HOLDINGS, L.P.
known to me
proved to me on the oath of or
proved to me through his 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]
(4 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 thisv / day of Ivv i , 2002.
CRISTELIA R PEREZ
Notary Public, State of Texas
My Cornmi (s1s�e^ ;":` S Notary Public d for the State of Texas
r��TEOFK�'F' 10.19'2�V"
•
• STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, the undersigned notary public, on this day personally appeared
in his/her capacity as of the CITY OF
BAYTOWN, TEXAS.
known to me
proved to me on the oath of or
proved to me through his 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)
(4 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 _day of , 2002.
Notary Public in and for the State of Texas
S � U
r ,r-
r •
This lease is signed on this ,L7 day of November, 1995, between The City of Baytown,
Texas, a municipal corporation located in Harris and Chambers Counties, ( "Lessor ") and One
Bayland Drive, L.C., having its principal place of business at 214 N. Nagle, Houston, Texas 77003
( "Lessee "). The Lessor and Lessee agree as follows:
DEFINITIONS
Lessor: City of Baytown, Texas.
Lessee: One 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, the building slab or pad,
any special structures such as piers that may be required underneath the Premises for support, and
those items more particularly described on Exhibit "D," which is attached hereto and made a part
hereof for all intents and purposes. Equipping of the Premises shall include the acquisition of all
kitchen and other equipment, signs, office equipment, point of sale cash registers, audio and video
equipment, kitchen utensils, 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, glassware,
china stoneware and paper goods, which costs shall be the sole responsibility of the
Lessee;
(b) . site improvements, including but not limited to curb cuts, entryways, parking
lots, parking lot lighting, sign pylons, sign monuments, walkways, all utility
extensions, sprinkler systems, landscaping materials; and
(c) except for architectural and engineering services, services performed by
consultants, developers or project managers rendered in the guidance or management
of the completion of Lessor's Project Improvements.
Lessor's Project Improvements. Lessor's Project Improvements shall include the
following:
(a) Premises Improvements, as more particularly described in Exhibits "A" and "D," 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, a parking
EMIT A
lot of at least one hundred (100) spaces serving the Premises and the surrounding development, all
parking lot lighting, sign pylons, sign monuments, walkways, utility extensions, sprinkler systems,
and landscaping materials.
Architectural and Engineering Fees. Fees paid solely for the preparation of architectural and
engineering plans for Lessor's Project Improvements. Such fees shall not include project
management fees, which include those fees paid for the professional services of a master plan
developer or the professional services of others that are not essential, as reasonably determined by
the Lessor, to the construction of the facility to be located on the Premises.
Lease Commencement ate: The earlier of either the date the Premises opens for business
or forty-five days after the Lessor issues the certificate of occupancy.
Rent Commencement Date: Exactly one year 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. Reference to "term"
herein shall, unless stated otherwise, include the Basic and Interim Term and any extensions thereof
ARTICLE 1
Premises
1.01 The Bay] and Harbor DevelQ12ment. 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 in conformity with the plan attached hereto as Exhibit "C" (the "Plan ").
1.02 Premises. Lessor hereby rents and leases unto Lessee, and Lessee hereby takes and hires
from 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 six thousand square feet (6000 W); to be located on the Premises
parcel consisting of approximately thirty nine thousand two hundred forty-seven
square feet (34,247 ft'), together with all improvements, equipment, fixtures,
machinery and appliances located therein or to be erected or installed therein by the
Lessor (the " Lessoes Project Improvements ").
(b) The right for 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,
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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, so long as such
terms and conditions are. not inconsistent with Section 3.06 herein.
ARTICLE 2
Term and Rental
2.01 Term. The Basic Tenn of this lease shall commence on the Lease Commencement Date, as
herein defined, and continue thereafter until ten (10) years have elapsed. Immediately after the Lease
Commencement Date, Lessor and Lessee shall enter into an agreement in recordable form setting forth
such date.
2.02 Rieht QMlension. Lessee is granted the right to extend the Basic Term for an additional
period of 5 years. If Lessee elects to extend the Basic Term for the fast additional period of 5 years, the
Lessee may also elect to extend the Basic Term for a second additional period of 5 years immediately
following the first additional period. If the Lessee elects to extend the Basic Term for the second
additional period of 5 years, the Lessee may also elect to extend the Basic Tetra for a third additional
period of 5 years. If the Lessee elects to extend the Basic Term for the third additional period of 5 years,
the Lessee may also elect to extend the Basic Term for a fourth additional period of 5 years. If the Lessee
elects to extend the Basic Term for the fourth additional period of 5 years, the Lessee may also elect to
extend the Basic Term for a fifth additional period of 5 years. If Lessee elects to extend the Basic Term
for the fifth additional period of 5 years, it the Lessee may also elect to extend the Basic Term for a sixth
additional period of 5 years. In each case, the option may be exercised by giving Lessor written notice
thereof at least one hundred eighty (180) days before the expiration of the applicable term. All of the
terms and conditions hereof shall apply during the additional term(s), unless otherwise modified in
writing by the parties hereto.
2.03 v . Upon expiration of this Lease, 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
is 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 Interim Tgffi. During the Interim Term and for exactly one (1) year after the
Lease Commencement Date, the Lessee shall not be obligated for any rental, taxes, or other payments
due under this lease. However, Lessee understands and agrees that the debt service payment for the first
year will be capitalized and included in calculating the rental payments herein.
2.05 Base Rent for3mic Term. Starting exactly one (1) year after the Lease Commencement Date
and during the Basic Term, Lessee shall pay to 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 twelve months 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 described in Exhibits "A" & "D" to this
Lease, plus all interest accrued on the cost of Premises Improvements, including, but not limited
to, the interest which will accrue during the Interim Term, and the first Lease Year of the Lease,
amortized over a period of fourteen (14) years, 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. The cost of the Premises Improvements used in the
calculation of the Annual Rental shall at no time exceed $1,200,000.
First Option Term. During the first Option period, the Annual Rental shall be the same as during
the initial tern.
(c) During each option term after the first extension of this lease, Lessee shall pay to Lessor,
as all rent due and owing, four percent (4 %) of the Gross Sales (defined below) made by Lessee in
each month of the applicable option term. 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, property and services sold at or from the
Premises (whether for cash or otherwise) by Lessee. No promotional material given away by Lessee
shall be included in Gross Sales. Sales, liquor and similar taxes and discounts received by 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, Lessee shall furnish to Lessor a statement
4
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certified by an officer of 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 Lessee will either pay any deficiency or receive an offset from
percentage rent the following month. 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
Lessor or its duly authorized representatives at all reasonable times. Lessee shall not be required to
retain any records for any year for more than three (3) years after the end of that year, but shall not
dispose of any such records before that time. Lessor shall have the right at any time to audit any
Annual Statement and all of the books and records supporting any Annual Statement. Lessee shall
make all of these records readily available for the examination. If any audit by 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 Lessee. If the audit shows the rent in fact due exceeds the amount of
the rent paid by Lessee, then Lessee shall pay Lessor the amount of the deficiency within ten (10)
days written notice of such deficiency.
2.06. Gross Lease. Except as otherwise provided for elsewhere in this lease, Lessee's -sole
monetary responsibility shall -be the timely payment of rent as provided for in this Article 2 of the
Lease. All payments required herein to be paid by the Lessee shall be due on or before the fifth (5th)
day of each month. -If payment is not received at the appointed time, Lessee will be obligated to. pay
interest on the delinquent payment in the amount of one percent (1%) per month.
2.07 No Partnership. Nothing herein contained shall be construed or held to make Lessor
and Lessee partners in the conduct of any business. The relationship between the parties hereto is
and shall at all time remain that of Lessor and Lessee.
2.08 Right to Inspgct Premise& The Lessor has the right,to inspect the Premises at all
reasonable times during the period of this Agreement or any extension thereof for inventory control
purposes and to ensure compliance with the terms and conditions of this Agreement. .
2.09 ColfMation and Agreement. The Lessee hereby expressly agrees that Lessee
will execute and deliver to the Lessor's payee the Confirmation and Agreement, which is attached
hereto and incorporated herein for all intents and purposes as Exhibit "E."
2.10 Limitation Qn Amount Expended on Premigs by Lessor, Both the Lessor and the
Lessee understand and agree that Lessor shall not be required to expend more than $1,200,000 on
Premises Improvements. If the cost of the Premises Improvements is' projected to exceed
$1,200,000, the Lessor and the Lessee shall negotiate in good faith to reduce the cost of the Premises
Improvements and/or the Lessor's Project Improvements.
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® ARTICLE 3
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Use and Occupancy
3.01 Purpose. Lessee shall not use the Premises for any disorderly or unlawful purpose. The
Premises shall be used by Lessee for the purpose of operating a first - class, full -service restaurant with
recorded entertainment and with service-of alcoholic beverages. 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 Conformance to Law. In conducting its business on the Premises, Lessee agrees to conform
to all applicable state, federal and local laws, ordinances, regulations and licensing requirements. Lessee
shall have the right to contest in good faith and by appropriate means any such law, regulation or
licensing requirement.
3.03 Exclusive Use.. Lessor will not use, 'or permit others to use, sell for the intended use or
permit any tenant or the assignee or subtenant of any tenant to use, any land or structure owned or
controlled by Lessor located on the Bayland Development Site for a restaurant which has a menu
consisting of fifteen percent (15 %) or more of traditional Mexican dishes, with the exception that any
business currently in existence will be excluded from this section.
3.04 Lessor's Covenant of Title and QUjgtEnjoyment . 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.
3.05 Successors and Assigns. The covenants and agreements herein contained shall run with the
Bayland Development and the Premises and shall be binding upon and inure to the benefit-of the parties
and their respective heirs, legal representatives, successors and assigns.
3.06 Perking. The Plan shows the Premises and the rest of the Bayland Development. Lessor
agrees and warrants that 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. 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; however, the Lessor acknowledges that Lessor
will do nothing to substantially decrease the number of parking spaces allotted for the restaurant
enumerated hereinabove. Furthermore, if the Lessor determines in its reasonable discretion that
additional parking facilities are needed to reasonably accommodate the parking for the Lessee's
restaurant, the Lessor shall to the extent reasonably practical provide additional parking spaces, giving
due consideration to the cost of construction, the necessity of the same, other economic variables, and
all other factors determined relevant by the Lessor.
® 3.07 No Other Predominantly can R!-,:9aurants. Lessor shall not allow the establishment of
any other restaurant which has a menu consisting of fifteen percent (15 %) or more of traditional Mexican
dishes within the Bayland Development at any time during the first five years of the initial term of this
Lease.
0
3.08 Hours of Business. Lessee shall continuously during the entire tern of the Lease and
each extension thereof conduct and carry on the operations of a first - class, full- service restaurant as
above - described on the Premises which is designated for such purpose and shall keep the Premises open
for business and cause Lessee's business to be conducted therein for at least seventy (70) hours per week,
commencing on Sunday and ending on the subsequent Saturday, during the following hours:
Noon — 10:00 p.m. Sunday;
11:00 am. -- 10:00 p.m. Monday through Thursday; and
11:00 a.m. -- 11:00 p.m. Friday and Saturday.
However, the seventy (70) hour requirement contained herein shall not be enforced during the weeks in
which Thanksgiving Day and Christmas Day fall. Furthermore, this provision shall not apply if the
Premises should be closed and the business of Lessee temporarily discontinued therein (i) on account of
strikes, lockouts or similar causes beyond the control of 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. 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 paragraph, 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
;' 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 Imnrov� ements. The Lessor shall proceed to install the 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.
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® 4.02 Architectural and Engineering Services. After consultation with the Lessee, Lessor shall hire
an experienced restaurant 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 engineering work on the design of the Premises shall begin. All architectural and
engineering .shall be completed and ready for permitting ninety (90) days after such work has begun.
Lessor and Lessee agree to cooperate in providing standards, specifications and guidance to the architect
and engineer regarding the design needs of the restaurant.
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4.03 Commencement of Construction. No later than ninety (90) days after the completion of
architectural and engineering drawings including any revisions thereof, Lessor shall commence
construction and thereafter proceed without undue delays. to complete construction and authorize
occupancy of the Premises by Lessee.
4.04 Warranty Claims. Lessor shall assign to Lessee all warranty, guarantee and similar rights
that Lessor may have with respect to: (a) the Lessor's Capital Improvements to the extent that they relate
to parts of the Premises that Lessee is obligated to maintain hereunder, and (b) the Lessee's Improvements
constructed or installed by Lessor's contractors. The assignment will be in such form as Lessee'may
reasonably require. Lessee understands and agrees that 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 L e� sProp=— 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 Lessee's subtenants or
licensees, which such property has not been provided or financed by Lessor, shall not become the
property of Lessor and may be removed by Lessee or 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 Lessee or Lessee's subtenants or licensees, for such improvements purchased by
the Lessee shall be and remain the Lessor's property.
4.06 Lessor's Property. 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 Lessee's subtenants or licensees, which such property has been provided or financed by
Lessor, shall not become the property of Lessee and may not be removed by Lessee or Lessee's
subtenants or licensees at any time during the term of the Lease or any option terms hereof.
4.07 SiM. 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. Lessor's approval of signage shall be required.
4.08 . Lessor agrees to maintain necessary main, conduits
and other utility lines necessary to supply water, secondary power, and sewerage service to the Premises.
8
® 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.
4.09 Attainment of Liquor License. At the time of the signing of this lease, Lessor has no
knowledge of any restrictions as to Lessee's attainment of a liquor license.
ARTICLE 5
Maintenance, Repairs and Alternations
5.01 By Lessor. 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. Lessor shall also maintain, at its sole cost and expense, the grounds
and the landscaping materials adjacent to the Restaurant 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 Iighting. At all times during the term of this Lease, 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 Lessee that such repairs
are necessary.
5.02 By Lessee. 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 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, 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, Lessee shall execute a bond for the sum of one hundred percent (100 %) of the total
lien amount, in standard forms for this purpose, guaranteeing that such lien shall be released from the
Lessor's property. Such bonds must be submitted to and approved by the Lessor in order for the Lessee
to be in compliance with this provision.
5.03 Alterations. After completion of the improvements, and during the term of this lease, 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. Lessee shall, at all times, hold Lessor harmless from the
payment for any work performed by 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 bome by the Lessee and shall increase the said
• annual rental.
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•
ARTICLE 6
Insurance, Damage, and Condemnation
6.01 Lessee's Insurance. 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. 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. 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. 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 products and liquor liability endorsements. 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
extensions thereof whether by a Workers' Compensation Insurance policy approved by the Lessor or
pursuant to 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.
Lessee shall furnish 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. Lessor agrees that at all times 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. Lessor agrees to deposit a copy of all insurance policies or certificates showing such
insurance in force with Lessee during the term of this lease upon request. The policy or certificates shall
also include a provision for thirty (30) days written notice to Lessor in event of any pending change in
or cancellation of the insurance. Lessor will carry liability insurance on the common areas.
6.03 Damage or Destruction by Casualty. If the leased Premises shall be damaged by fire, an
unavoidable accident or other casualty, Lessor shall cause the damage to be repaired. Lessor shall not
be liable for any damage or destruction to the property on the Premises owned by Lessee under the terms
hereof or belonging to third parties, not for the loss of any such property from the Premises by theft or
otherwise.
H
6.04 Lessee's a ualty Insurance. The Lessee will maintain primary and extended coverage
insurance on its leasehold improvements in sufficient amounts as determined by the Lessor at all times
during the term of this Lease and any extensions thereof.
6.05 Condemnation. If the whole of the leased Premises shall be acquired or condemned by
expropriation or eminent domain for any new public or quasi - public use or purpose, then the term of this
lease shall end as of the date that title vests in such proceeding and all rentals shall be paid up to that date.
6.06 Partial Condemnation. If any part of the Premises shall be acquired or condemned as
aforesaid and if the partial taking or condemnation shall render the Premises in both the Lessee's and
Lessor's opinions unsuitable for the business of the Lessee, then the term of this lease shall end as of the
date that title vests in such proceedings and rent shall be adjusted to the date of the termination. In the
event of a partial taking or condemnation that is not extensive enough to render the Premises in both the
Lessee's and 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 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 Condemnation of Parking Area, If a part of the common parking areas in the Bayland
Development shall be so acquired or condemned as a result of which either:
(a) There shall be less than the number of parking spaces referred to in Article I
hereinabove, or
(b) The parking available in the Bayland Development shall not satisfy the requirements
of any applicable law, ordinance or governmental rule or regulation, or
(c) The modes of access to the parking space and the Premises shall have been materially
impaired.
6.08 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.
is
® ARTICLE 7
Common Area Maintenance
7.01 Common Area Maintenance. 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.
ARTICLE 8
Mortgages and Estoppel Certificates
8.01 Lessee's Mortgages. 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 Lessor, but shall have the
right to mortgage and encumber personal property, fixtures, trade fixtures, special finish items unique
to the restaurant's concept, equipment, furniture and merchandise located in or upon the Premises, which
has not been provided or financed by Lessor. In such event, or events, 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 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 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 Lessee a duplicate of any and all notices or demands given by
Lessor to 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 Lessor.
8.02 Lessor's Right to Sell oc_ Mortgage. Lessor reserves the right to sell, assign, transfer or
convey its interest in this Lease and the Premises without prior consent of Lessee, and Lessor shall further
have the right to encumber and mortgage the Premises and assign rentals payable by Lessee to 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;
12
® provided, however, that no such sale, assignment, transfer, conveyance or mortgage shall in any way
diminish the rights of Lessee to use the Premises as provided in this Lease, and any person or entity
standing in the place of Lessor as a result of any such sale, assignment, transfer, conveyance, or mortgage
shall assume the duties and obligations to Lessee as provided in this Lease as if such person or entity
were Lessor herein.
is
8.03 Statement of Performance. Lessor agrees to famish Lessee, and any of the Lessee's
mortgagees, upon written request therefore, a statement wherein Lessor shall, under oath, acknowledge
that as of the date of such statement, 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 by Lessee, and
that to the best of the Lessor's knowledge as of said date the leasehold estate hereby created and granted
to Lessee is free of all defaults hereunder (or if defaults exist, specifying the nature of the default);
provided, however, Lessor shall not be required to furnish 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. Lessor shall have the right to declare the Lease in default if 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 Lessee, or
(b) Defaults in the performance of any other obligation imposed upon 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 Lessee (or, if the Lessor in its sole discretion,
determines that the default cannot reasonably be cured within the fifteen (15) day period, if
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
13
(d) Makes an assignment for the benefit of creditors, then 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
(ii) Each of the notices contains a reminder of the substance of this subpart
9.02(a), thereafter Lessor shall no longer be obligated to give Lessee notice of a default
consisting of the nonpayment of rent and the Lessor may immediately terminate the lease.
(b) In all other cases with the exception of those cases hereinabove specified where the
lease is subject to immediate termination by the Lessor, the default must be cured within fifteen
(15) days from the receipt of the notice or, if the default is not reasonably susceptible of being
cured within the fifteen (15) day period, commence curative work within the fifteen (15) day
period and prosecute it to completion with diligence. The determinations regarding whether the
default is reasonably susceptible to being cured within the above - referenced time frame and
whether the Lessee is commencing curative work with diligence shall be made at the reasonable
discretion of the Lessor.
9.03 If any such default occurs and is not cured within the time allowed by paragraph-9.02, the
Lessee understands and agrees that the Lessee shall become immediately liable for all amounts due or
which would have become due under the term of the lease or any extension thereof. Furthermore, in the
event of such default, the Lessor, in addition to any other rights which Lessor may have under law or
under the provisions of this Lease, shall have the following options, subject to Lessee's rights under
paragraph 9.06, below:
(a) Immediately to re -enter and remove all persons and property from the leased
Premises. Such property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of, 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 Lessor from exercising any other options granted by
this lease.
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•
(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, Lessor may avail itself of any rights under the laws of the State of Texas
to evict 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.
9.04 Should Lessor elect to re- enter, under any provision of this lease, or should Lessor take
possession pursuant to legal proceedings or pursuant to any notice provided for by law, the Lessor shall
have the right and the ability to make such alterations and repairs as the Lessor determines is reasonably
necessary in order to re -let the Premises and may re-let the Premises or any part thereof. This re- letting
shall be for such rental and on such terms as 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 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 re- letting, including attorney's fees and the cost of such alterations and repairs; second,
to the payment of any indebtedness other than rent due from Lessee to 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 Lessee, then the
deficiency shall be paid during that month by Lessee hereunder, to Lessor. Such deficiency shall be
calculated and paid monthly in the manner provided above. Lessee may request and shall be granted
access to Lessor's books and records in order to ascertain the status and accuracy of its account with
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 Lessee hereunder.
9.05 Failure to strictly and promptly enforce the conditions set forth above shall not operate as
a waiver of Lessor's rights. 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 Lessor or Lessee of any breach of this lease shall not
be deemed a waiver of any subsequent breach of the same nor shall any other term or condition of this
lease be deemed to have been waived by Lessor or Lessee unless such waiver is in writing and signed
by Lessor or Lessee.
9.06 Any and all defaults reasonably declared by the Lessor shall be final and binding upon the
Lessee. If the Lessee receives a default notice but in good faith denies that it is in default (in whole or
15
•
in part) the Lessee may prevent the Lessor from exercising the rights or remedies set forth in this Section
9 by taking the following steps:
(a) The Lessee shall remedy that part of the default as to which there is no dispute within
the time allowed by paragraph 9.02.
(b) As to the disputed part of the default, the Lessee shall either:
(i) Remedy the alleged default within the time allowed by paragraph 9.02 with
full reservation of the Lessee's right to recover from the Lessor the amount paid and costs
incurred by the lessee if it is ultimately determined that a default did not exist, or
(ii) Furnish the Lessor within the time allowed by paragraph 9.02 with security
approved by the Lessor as adequate in amount to cure the default if a default is ultimately
determined to exist, provided that the Lessor may not withhold the approval
unreasonably. The security shall consist of cash, obligations of the United States (or any
agency thereof), of certificates of deposit issued by a national bank and shall be held by
a national bank approved by the Lessor as agent or custodian for the parties.
9.07 In the case of a dispute as to the existence of a default, the Lessee may, in lieu of or in
addition to its rights under paragraph 9.06, assert its right and defenses in any other manner permitted
by law.
ARTICLE 10
MISCELLANEOUS
10.01 Assignment and Subleasing. 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 Lessor. Notwithstanding
any assignment or sublease, 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:
V
• (a) To Lessor when received at:
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, Texas 77522
Fax: 420 -6586
(b) To Lessee when received at Lessee's office:
One Bayland Drive, L.C.
c/o RioStar Corporation
Attn: Rolland D. Lorenzo
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
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. 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 other than by an agreement in writing, signed by all the parties hereto or their respective
successors in interest.
10.04 Qender 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 Heaines. The headings as to contents or particular articles or sections herein are inserted
only for convenience, .and they are in no way to be construed as a part of this lease or as a limitation on
the scope of the particular sections to which they refer.
10.06 Consents. Wherever either the Lessee's or the Lessor's consent or approval is required or
desired, such consent or approval shall not be unreasonably withheld.
10.07 Rent on Termination. Upon any termination of this lease, other than under Article 9
® hereof, all rent paid but not earned shall not be refunded.
17
• 10.08 Force Majeure. Neither Lessor not 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 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 Recording of Lease. Lessor and Lessee shall also execute, contemporaneously with the
execution of this Lease, a Memorandum of this Lease, the form of which is-attached as Exhibit-"F;" 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 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 fuial judgement in a court of law, of competent jurisdiction, in an action in which the Court has ruled
on a dispute between Lessor and Lessee, the party against whom the judgement 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, restaurant industry 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
18
® sustain in any event by reason of the Lessee's failure to make payments within specified time periods.
Should the Lessor suffer damage over and above the minimum amount specified by reason of the
Lessee's failure to timely pay in-strict accordance with the lease, the Lessor may recover such additional
amount. The Lessor will have the right to recover such amount from the Lessee; all such. remedies shall
be cumulative and the Lessor shall not be required to elect any one nor deemed to have made an election
by proceeding to enforce any one remedy.
10.15 Litter and Pollutants_ Lessee hereby guarantees that no pollutant, effluent, liquid or solid
waste material, Iitter, trash or garbage issued from the leased Premises is allowed to collect in the waters
or in the vicinity of the Premises.
10.16 Fire System, The Lessee shall be responsible for ensuring that all fire fighting. systems
and equipment is regularly inspected and remains in the highest degree of readiness.
10.17 Consent, The Lessor by this Agreement does not give consent to litigation and the Lessor
hereby expressly revokes any consent to litigation that it may have granted by the ' terms of this
Agreement, charter or applicable state law.
10.18 ldemnity. Lessee agrees to and shall indemnify, hold harmless and defend, the Lessor,
its officers, agents and employees, from and against any and all claims, losses, damages, causes of action,
suits and -liability of every kind, including all expenses of litigation, court costs, and attorneys' fees for
injury to or death of any person, or for damage to any property, arising out of or in connection with the
work done by 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 Lessee and the Lessor, that the indemnity provided for in this paragraph is an indemnity by 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, 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, full- service
restaurant and the payments of all amounts owed by 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.
IV
10.21 No Third Party Beneficiaries, This Agreement shall not bestow any rights upon any third
party, but rather, shall bind and benefit Lessee and the Lessor only.
10.22 Auth gty to Enter Contract. Each party has the full power and authority to enter into and
perform this Agreement, and the person signing this Agreement on behalf of each party has been properly
authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby
represent that they have authorization to sign on behalf of their respective corporations.
10.23 Agreemot Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
10.24 Milt' ILL 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.
LESSEE
ONE BAYLAND DRIVE, L.C.
By:
Oland D. L renzo, esident /CEO
GUARANTOR
NINFA'S, I
By:
Roland-D. L enzo, resident /CEO
LESSOR
PETE C. ALFARO, ayor
• City of Baytown, Texas
20
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ATTEST
"'&� P. )4�
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
dn�� &=de�
I ACIO RAMIREZ, SR, a ity Attorney
STATE OF TEXAS §
§
COUNTY OF HARRIS §
Bef a on this day personally appeared `1 61 14^0 D D . � &Vn his capacity as
Pa. y; ore of One 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 ckiv.sidcration therein expressed.
SUBSCRIBED AND SWORN before me this�day of N 1995.
�l�t/llll�lJClll�
1 ,.�V A- MARIA G. RAMIREZ Notary Public in and for the State of-Texas IJ
NOTARY PUMIC. STATE OF TEXAS
My COMMSSM EXPRES
+rtOF SEPT. 23, 19N
21
•
•
STATE OF TEXAS §
COUNTY OF HARRIS §
Before a on this day personally appeared 'R()1F1ND D.L"::hA N-N in his capacity as
PR Es i Dt _ of Ninfa's, Inc., on behalf of such corporation, known to me to be the
person whose name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of o-o "YL. 1995.
► "�`�. MARIA G. RAMIREZ
_ ®`; NOTMY PUBLIC. STATE of TEW
X a� MY coMMSStOM EXPWiiS
SEPT. 23, 1998
..v�cico�e�w
c:lklh I Ikontractslbay1and2.wp
0%
t--f� • f
RQ222�
Notary Pub >c in and for the State of Texas
•
•
Exhibit A
Furniture, Fixtures and Equipment
•
•
EIT A
November 7, 1995
Re: Ninfa's Baytown Project
We respectfully submit the following F, F, & E estimate for the Ninfa's, Seafood Cantina in Baytown.
RELCO
S66,162,50
MICROS
S26,717.50
CUSTOM STAINLESS STEEL
S44,400.00
SYSCO
S60,522.12
SYSCO MISC KITCHEN EQUIP
S29,500.00
PHOENIX
S 5,717.00
RIO FUERTE
$75,529.00
CANAL STREET MILL SHOP
S 6.493.00
F F & E S313,041.12
2727 Canal St. - Houston. TX 77003 - 713- 224 -2626 - Fax 713 - 224 -2727
•
EXHIBIT A
CANAL STREET MILL SHOP
2725 CANAL
HOUSTON, TEXAS 77003
TEL: 713 - 224 -2626
QUOTATION FOR:
The construction, shipping and installation of all booths for the Ninfa's Baytown Project.
12 sets including:
Eight (8) Double Sided Custom @ $444.00 each $3,552.00
Six (6) Single Custom @ $222.00 each $1,332.00
One (1) Rounded Custom @ $1,259.00 each $1259.00
$6,143.00
Shippi^- $ 35Q,90
TOTAL $6,493.00
Thank you for this opportunity.
Sincerely,
Kim Van andt
•
I-]
ri
LJ
EIT A
toy
November 7, 1995
REF: Baytown Furniture
These are allowances provided for specified furniture:
INTERIOR
26 tables @ 200 ea. $ 5,200.00
104 chairs @ 125 ea. $13,000.00
28 barstools @ 150 ea. $ 4,200.00
EXTERIOR
20 sets @ 200 ea. $ 4,000.00
20 tables & 80 chairs
Hostess Stand $ 473.00
Display Cases (2) @ 578 ea. $ 1,156.00
OTHER
Interior Design & F.F.& E. &
Purchase Commisions
$18,100.00.
Office Furniture
$ . 700.00
Phone System
$ 2,600.00
Sound System
$ 8,500.00
Wall Decorations
$15,000.00
4 T.V. Sets @ 350
$ 1,400.00
Safe
$ 700.00
Fax
$ 500.00
SUBTOTAL
TOTAL
$22,400.00
$ 4,000.00
$ 1,629.00
$28,029.00
$29,400.00
$47.500.00
$75,529.00
2727 Canal St. - Houston. TX 77003 - 713 - 224 -2626 - Fax 713- 224 -2727
EXHIBIT A 2301 PRESTON
HOUSTON, TX 77003
REFRIGERATION CO.
713- 222.9292
0 FAX 713.222.7112
IrU v.� Y va S PHONE NO. 2 7-9 - Z 6 7._�
SOLD TO
•
vu VA -Ap
�REET ADDRESS AND SUITE NUMBER OR POST OFFICE BOX NUMBER
V=, -\ 1—r t . i w' - 1 '1 U o
CITY
SALE
COUNTY STATE
LEASE
DELIVERY DATE 4 n
ZIP
DATE _.101 '�1 1 Cl 5
SALESMAN Cy)"' V-9- YIN - - L L w
DO NOT WRITE
IN T HIS COL
OUANTM
MODEL NO.
PRICE
TOTAL AMOUNT
21C
.. —
w o
f
2
-r R
ZZ3
r
S V
2 1M 'R v p-
4
v
Z
Z�
o l 6
S L vA-ro i, c�a
IZ
'l• Sel -t 1 I C2 12P v
00
w
r1
-L Re r,, cl +
R- S t, a 0 , ..,, ,,,. tj r2 P
L .,
•�
0 ... ne oytI
• Icy,
a c
�•
u
Z Z C. 8.
v
THE A80VE PRICE, OR PRICES, DOES NOT INCLUDE WIRING OR PLUMBING.
SHACKELPOR0. INCORPORATED
d;D/a RELCO REFRIGERATION CO.
2301 PRESTON CUSTOMER'S SIGNATURE
HOUSTON. TEXAS 77003
EXHIBIT A
REFRIGERATION CO.
D/B/A
STREET ADDRESS AND SUITE NUMBER OR -POST OFFICE BOX NUMBER
2301 PRESTON
HOUSTON. TX 77003
713 - 222 -9292
FAX 713.222.7112
PHONE NO. 2.2 y - 7. 6 2, L
CITY, U COUNiT / STATE ZIP
SALE �/ LEASE DATE 1
QELIVERY DATA Iq I lz I SALESMAN
DO NOT WRITE
IN THIS COL
QUAWm
MODEL NO.
PRICE
TOTAL AMOUN'
G
V L
z
I
U
L V.-Aw 14 o
j
Wvo
L L. i G 2r G V
p
, v `.
1
s-
v+
o.
I
THE ABOVE PRICE, OR PRICES, DOES NOT INCLUDE WIRING OR PLUMBING.
SHACKELFORD, INCORPORATED
Ewa RELCO REFRIGERATION CO.
2301 PRESTON CUSTOMER'S SIGNATURE
HOUSTON. TEXAS 77003
•
EXHIBIT A
REFRIGERATION CO.
r1) F 5 PHONE NO.
SOLD TO
D/B/A
STREET ADDRESS AND SUITE NUMBER OR POST OFFICE BOX NUMBER
1A `: a w .-`-> \ 74—
CITY
SALE
COUNTY
2301 PRESTON
HOUSTON. TX 77003
713- 222.9292
FAX 713. 222 -7112
STATE ZIP
LEASE DATE l i z I cl 6'
DEOVERY DATE SALESMAN LN %-s- V12 1- 3M L L ��
DO NOT WRITE
IN THIS COL
OUANTITY
MODEL NO.
PRICE
TOTAL AMOUNT
.Q e
1 a
`
p _
1 Il
.
r.
G V
C ^ V Ov
V o e Lo 0
Pair Q
'HE ABOVE PRICE, OR PRICES. DOES NOT INCLUDE WIRING OR PLUMBING.
HAC KE LFO R D. INCORPORATED
bia RELCO REFRIGERATION CO.
301 PRESTON CUSTOMER'S SIGNATURE
OUSTON. TEXAS now
EXHIBIT A
REFRIGERATION CO.
r
C]
PHONE NO.
SOLD TO
D /B/A
STREET ADDRESS AND SUITE NUMBER OR POST OFFICE BOX NUMBER
CITY COUNTY STATE ZIP
SALE LEASE DATE
DELIVERY DATE SALESMAN
2301 PRESTON
HOUSTON, TX 77003
713.222 -9292
FAX 713.222.7112
DO NOT WRITE
IN THIS COL
OUA"n,
MODEL NO.
PRICE
TOTAL AMOUNT
Fi Vc r Ir L,., Are n. Cc
r- r
y 1 l
O
{e
o
w e 1..
w 2
CA i G 1
w '1
o
l v 1 -1
I
'HE'ABOVE PRICE, OR PRICES, DOES NOT INCLUDE WIRING OR PLUMBING.
HAC KE LFO R D. INCORPORATED
ro/a RELCO REFRIGERATION CO. CUSTOMER'S SIGNATURE
301 PRESTON
OUSTON. TEXAS 77003
•� mic . ros M
•
October 24, 1995
EXHIBIT A
NINFA'S BAYTOWN
2700XL TOUCHSCREEN SYSTEM UNITS
4 Micros 2700XL w /memory System Units
4 Micros integrated Roll Printers
4 Micros Magnetic Card Readers
2 Micros Standalone Roll Printers
1 Micros Communication Interface Board
2 Micros Cash Drawer
1 Micros Turret Display
1 Credit Card Authorization
1 Credit Card installation Fee
1 Micros PCISN Board and Software
1 PC 386 4mg _
1 Modem
Subtotal
Rio Star Discount
Subtotal
Programming, Documentation, Installation & Training
Subtotal
8.25% Sales tax
Total Investment - —
$4,000.00
500.00
150.00
1,000.00
750.00
220.00
250.00
1,195.00
325.00
1,500.00
1,356.00
159.00
16,000.00
2,000.00
600.00
2,000.00
750.00
440.00
250.00
1,195.00
325.00
1,500.00
1,356.00
159.00
$26,575.00
- 2,657.50
$23,917.50
800.00
24, 717.50
2,039.19
$26,756.69
NOTES"
o Eleadcal and [RC wiring Is not Included end Is the tesponsibilhy at the customer's cler -Mclan.
v Above prloe quote Is effective for thhty days.
o Above price quote does not Include applicable sales tax.
o COD payments and leeahq dell very and acceptance forms wig by cd)bcted upon Inllal eonnpletion of the Instaledlom
Initial completion Is defined as Me Installation of hordwate and software...hh suocwsful kndkw end or an-Pne
communications setup. Subeequerd program chanpe3 may be reefed to raflne the Irraeledork however. will not
postpone cdiactlon of the balance or forms needed be hording.
micros hospitality systems
5111 Mdcneoafle haul, t:r.te d -1
IausNpr, t'e,nti 770:+2
(713) C•08.0907
ra: (1131 &&.0150
NOV, 02 195 16:01 STAINLESS STEEL FAB
S S STAMLESS STEEL, CV f; FABRICATORS, INC.
C SpocnllzkV in Cuseorn R"aunnt Egwpmenl
F P.O. flox 4b0132 Bu3. (713) 433••0&95
Houston. Tun 77245-0132 Fax (713) 433-0498
MI A AS
11-0•L -75
4'RoPUSAL
f77I;M fi
I
QTY
DESCRIPT ON
fluc <
TorrA1.
09
01
7•X 30" TABLE WITH (2) 16 X 2R
7.17:.00
1�i75.00
Or" SUMKS WTrH FAUCET &
T W= HANDLE
10
01
S TABLX WITH WIFMF & RACK
SPLASH
MOO
31tf14
li 6c 1801 FA
3' X 30" TAS1,E wrm- OVLR 3wri s 45x uu
916.00
POT RACK A POb`a MOUMD
vxD�ss�
15 .tc 18A
01
"CABLE ONLY WITH QIs117.i.F
3SX00
39&04
13
01
- 36" WIDE X 30' DESr TABLE
IM00
38&60
36
@1
PICKUP TAI.BB 17 LONG
1589.00
1299AO
WITH 12' TRAY LIP W OMY
Lz rr 12M
42 01 9 *-6" 03 COMPARTM KNT SlW 2421(o 242LAO
WrM DOURLS DRA1'N BOARDS.
TWIST HANDLE DRAM% (1) PSMUINSE
WITu if,%uCL-r & (I) FAUCSI:
s6 01 t' CLf" DLti[iTA At WrM 46000 40A0
STAID M STERI. UISBELY.
49 Ol SOIIFA DI.MABLB "11" S AMO 7.91100 2,91i.M
WrrH rMS -WASK SMIC WrM
DASIM & RACK GiJML DO UBLB StDLD
cuP & CLASS RACICSHrr r. STIIWLm
STUL U/SULIF WITH SPRAY RINSE
z116Ahnada Cx=m Hmo&jLj6 TcfAd 77047
•
Nov 0,2 '95 16.01 STAINLESS STEEL FAB r . v4
EXHIBIT A
•
LJ
NWBAS PROPOSAL PACE 02
fA
01
BEvOUGE COUNUR "EL" SHAP6b 1.1x55.00
IdS5.00
9' -6" X 6' WITH ICC SIN, 14 X It X W
CLASS FnIZR WrrZ TROUGII CUTOUT
AOR SODA DISIMNSIR A RW W FOR RACK
AOL ES UNDER TOP & 6 X 28 ICE PAN.
56
el
EL CEM 23 CALMN CHIP 1500.80
imoo
wAuld=
6"
o1
:r BEVERAGE STATWIN 1. 15.00
14MOO
WITH 01 wATERFIILER FAUCRT
DRAIN TROUGH
(I) 13 X 13 X M" DUP.ICE PAN
CL) 1Z" X 27" X tr' DUP ICE PAN
`
AT Lx3rTsmi WITH LLGS dr ROOM
1UNDERNKATH FOR RACK DOLLIES
70
04
48" X 2e X ZI" DE" DYIM BOXES t9U.00
2,960.40
LATCH Spam i[AU. STAiNLIMS STILL
INSIDL AND CALVANI= Oq SIDL
#7
01
3' -2" S 36" LIIIPjMff STAND Si rM 363 A
365.00
Q1YDY�SEiBLF.
rg
ny
5' -4" STAM ■mac STIYLTAALi TSiAO
72&"
WrrH M UNDZRMLVES. BACK
SPLASH ON 03 SMTS R DOI TRI.K
U1+IDEGHSI.VYS 3T' BICI.
J9' X.-A- X 30" EXHAUST ROODS
ii.IG0.d0
02
WTIS ZXKAWT PANS do MAKEUP
AIit TANS & ICXHAMT MIC1' & SUPPLY
AID DUCT INSTALLPA. AS MR CUDC
WCCH VAPOR PROOF L1TES & &LUNN
HAFFLY YM71M THIS PFICE ALSO•INCLUD1[S
HOOD ATTOWrCU 1 STATION.
01 LOT
TO ntO:MB TA= i SWK 4L SET M
PLAT rH RAYTOW N 7 w.eU
Tm°n
SUBTOTAL
TAXYU�s
LJ
P901/ w '95 16 =92 STAINLESS STEEL FAB
S s STAMESS STS- C jABRlCA7.41?S, INC
. c SpeCk&v►Q in Cwtom R9a(4Vr2n9 EQUOMOrrl OLr-
P.O. wx 450132 Fax .i
(713) 433.0496
�{ous=. Tey*s 77245 -0132 Fax 0713) 43 -0494
NMAS
t(OVLM IrR 07, 1"s
SBXLF AND POT ]RACK EQU,P1tii M MOUDtTZD TO WALLS
rr€esa
QTY
DESCRIrTUN
Pw=
SAL
e5
01
Y DOUSLX BAR WALL MOUNTED POT RACK
13+0.09
Moo
as
01
CAF VAN=D UkM WALT. MUM WrrH WALL
96.00
'WALL BRACKET
X 14" WALT. StUaX
SLOO
Saco
36
of
2I' X 2'-6" bHE1.F WrMBOTrOF4 CIIANhM
Moo
T30.00
SUPPORT & WALL IMACXS - MADL 1N 0)
vtttua
of
is x 3o-acre v wren 17" LEGS SUPPORT
J50.00
330.00
Ba'mm CUA"M SUPPORT
42
01
c x t4• WALL Sg.F wn7i BRACKET
Ol
30" X 14" OVSRSEUJ
56A0
S01,a
ul
9' DOUBLL BAR POT RACK WALL MO.Uh=D
227.00
227 -
T X i4' WALL SH.I.Y
60.10
du-�
0l
10' X 14" WAU,SKW
170.00
,TO.00
6lH
ul
24" X 14" WM. SHELF
43,00
4500
0t
49" X 14" WALLSHf1p'
70.00
70.00
a,
C x M" WuI-SOMLY
9&00
18.00
•
-•
a
SUBTOTAL
3=4A0
TAX
ns7-"
TUrALa
52.396.66
ABOVE TO
ZSR INSTALL= BY O'liit &
P116A1m.>b C—CM Houdvan 7;v� l/"7
•
•
C7
EXHIBIT A
SYSCO FOOD SERVICES
QUOTATION
RE :MC110201
TO:NINFA'S DATE: 11/02/95
C/O CITY OF BAYTOWN YOUR REF. NO:EQUIPMENT
ATTN: JEFF.STOVER F.O.B.:AS STATED
DELIVERY TIME:4 -6 WEEK ARO
TERMS:AS SPEC. -SEE TERMS & COND.
THIS QUOTATION EXPIRES IN THIRTY DAYS, UNLESS OTHERWISE INDICATED.
ITEM
NO
QTY.
1
UNIT
LOT
DESCRIPTION
GOLD BOND SHELVING FOR DRY
PRICE
1808.13
UNIT
EA
EXTENSION
1808.1
4
STORAGE.
4
EA,
20 GL. CONTAINER 5505458
16.47
EA
65.8
4
EA
MOBILE DOLLY 5505466
26.40
EA
105.6
6
1
EA
HOBART H -600 60 QT. MIXER WITH
8700.00
EA
8700.0
STANDARD NINFA'S ACCESSORY PKG.
12
1
EA
HOBART 484145 14" BUFF. CHOPPER
3325.00
EA
3325.[
16
1
EA
IMPERIAL IR -8 RANGE, 8 OPEN
1575.00
EA
1575.0
BURNERS, ONE STANDARD OVEN.
NAT'L GAS, STD. FINISH.
17
3
EA
IMPERIAL STOCK POT RANGE ISPA-
998.00
EA
2994•(
1825 NATURAL GAS.
19
1
EA
PITCO MODEL 24F NAT'L GAS FRYER
2655.06
EA
2655.4
WITH MECHANICAL T -STAT, STEEL
TANK. RH SHELF ON LEGS.
FOR OVER SHELF ADD 155.00
20
5
EA
ADVANCE HAND SINK W /FAUCET &
166.77
EA
833.
BASKET DRAIN, 12" WIDE.
26
1
EA
IMPERIAL IRB= 60X -NAT'L GAS
2000.00
EA
2000.
CTR TOP CHARBROILER.
PRICES SHOWN ARE F.O.H. POINT OF ORIGIN, UNLESS OTHERWISE INDICATEWDO
INCLUDE APPLICABLE SALES TAXES, IF ANY.
P.O. BOX 15316 QUOTED OBY-IKEE C N HOUSTON, TEXAS 77220 -5316 TITLE:D C
(713) 672 -8080
BY:
-
ACCEPTANCE AND FUKCtiASt; UNULN
THE - ABOVE QUOTATION IS ACCEPTED SUBJECT TO -THE TERMS AND CONDITIONS ON THE
ATTACHED HEREOF AND SYSCO FOOD SERVICES, INC. IS AUTHORIZED TO SHIP THE ABOI
DESCRIBED MERCHANDISHP. TERMS OF SALE, F.O.B.,. AND DELIVERY ARE AS INDICATEI
ABOVE. PURCHASER AGREES THAT SHOULD PURCHASER NOT ACCEPT DELIVERY AS SPECIF.
ABOVE, STORAGE AND RELATED COSTS AT THE RATE OF It PER MONTH WILL BE ADDED
THE PURCHASE PRICE OF SUCH EQUIPMENT.
COMPANY NAME BY
TITLE DATE
•
I
EXHIBIT A
SYSCO FOOD SERVICES
QUOTATION
TO: NINFAIS
C/O CITY OF BAYTOWN
ATTN: JEFF STOVER
THIS QUOTATION EXPIRES IN THIRTY DAYS,
RE:MC110202
DATE: 11/02/95
YOUR REF. NO:EQUIPMENT
F.O.B.:AS STATED
DELIVERY TIME:4 -6 WEEK ARO
TERMS:SPEC. -SEE TERMS & COND.
UNLESS OTHERWISE INDICATED.
ITEM
NO
QTY..
UNIT
DESCRIPTION
PRICE
UNIT
EXTENSION
29
4
EA
APW COUNTERTOP FOOD WARMER
119.00
EA
476.(
4571683 (SEALED WELL) 120V
31
5
EA
2 BULB HEAT LAMP 120V
98.70
EA
493.°
34A
1
EA
PITC9 MODEL 45(14) NAT'L GAS
1200.00
EA
1200.(
FRYER WITH MECHANICAL T -STAT,
MILD STEEL POT, ON LEGS, STD
FINISH.
34B
1
EA
PITCO MODEL 18 NAT'L GAS FRYER
1902.00
EA
1902.+
WITH MECHANICAL.T -STAT, MILD
STEEL POT ON LEGS, STD. FINISH.
35
3
EA
1700 WATT MICROWAVE OVEN
995.00
EA
2985.1
38
1
EA
IMPERIAL NAT'L GAS 36" C -TOP
1040.00
EA
1040.,
ICMA -36 CHEESEMELTER, STD FINISH,
NO BRACKETS.
1
EA
OPTIONAL 36" ELECTRIC C- MELTER
1080.00
EA
1080.
VULCAN 1036W ON 4" LEGS.
PRICES SHOWN ARE F.O.B. POINT OF ORIGIN, UNLESS OTHERWISE INDI
INCLUDE APPLICABLE SALES TAXES, IF ANY.
P.O. BOX 15316 QUOTED BY: KE C
HOUSTON, TEXAS 77220 -5316 TITLE:NO O S
(713) 672 -8080 BY:
. 41 O N
1f
T
ACCEPTANCE AND PURCHASE ORDER
THE ABOVE QUOTATION IS ACCEPTED SUBJECT TO•THE TERMS AND CONDITIONS ON THE
ATTACHED HEREOF AND SYSCO FOOD SERVICES, INC. IS AUTHORIZED TO SHIP THE ABON
DESCRIBED MERCHANDISF6. TERMS OF SALE, F.O.B., AND DELIVERY ARE AS INDICATE[
ABOVE. PURCHASER AGREES THAT SHOULD PURCHASER NOT ACCEPT DELIVERY AS SPECIF]
ABOVE, STORAGE AND RELATED COSTS AT THE RATE OF 1% PER MONTH WILL BE ADDED 7
THE PURCHASE PRICE OF SUCH EQUIPMENT.
COMPANY NAME
TITLE
BY
DATE
•
•
EXHIBIT A
SYSCO FOOD SERVICES RE:MC110203
QUOTATION
TO:NINFA'S DATE: 11/02/95
C/O CITY OF BAYTOWN YOUR REF. NO:EQUIPMENT
ATTN: JEFF STOVER F.O.B.:STATED
DELIVERY TIME:4 -6 WEEK ARO
TERMS:AS SPEC. -SEE TERMS & COND.
THIS QUOTATION EXPIRES IN THIRTY DAYS, UNLESS OTHERWISE INDICATED.
ITEM
NO
QTY.
UNIT
DESCRIPTION
PRICE
UNIT
EXTENSION
50
1
EA
HATCO GRA -72 HT. STRIP W /TOGGLE
146.00
EA
146.0(
SWITCH, SINGLE MOUNT . NO CORD
-
& PLUG.
5i
4
EA
DISH RACK DOLLY W /OUT HANDLE
75.80
EA
303.21
53
1
EA
44 GAL. CONTAINER ON CASTERS
57.00
EA
57.0
W/ LI D
54
1
EA
ADVANCE MOP SINK 9 -OP -20
498.00
EA
498.0
WITH K -240 FAUCET
56
2
EA
HATCO DRAWER WARMER HDW -3
1815.00
EA
3630.0
ON CASTERS 4"
1
EA
HATCO DRAWER WARMER HDW -2N
1267.00
EA
1267.0
ON LEGS 6 ".
72
2
EA
WALL HUGGER SLIM JIM BEIGE
27.75
EA
55.5
::i
3
EA
SUPREME JOCKEY BOX 22X36X16D
793.00
EA
2379.0
W/O COLD PLATE WITH S/S BOTTLE
RACK.
PRICES SHOWN ARE F.O.B. POINT OF ORIGIN, UNLESS OTHERWISE IND AT :AN DO N(
INCLUDE APPLICABLE SALES TAXES, IF ANY, L.
P.O. BOX 15316 QUOTED :MI 0 ErF
HOUSTON, TEXAS 77220 -5316 TITLE' ON -F S C T
(713) 67.2 -8080 BY6:/
ACCEPTANCE AND PURCHASE ORDER
THE ABOVE QUOTATION IS ACCEPTED SUBJECT TO.THE TERMS AND CONDITIONS ON THE
ATTACHED HEREOF AND SYSCO FOOD SERVICES, INC. IS AUTHORIZED TO SHIP_ THE ABOV
DESCRIBED MERCHANDISE* TERMS OF SALE, F.O.B.,'AND DELIVERY ARE AS INDICATED
ABOVE. PURCHASER AGREES THAT SHOULD PURCHASER NOT ACCEPT DELIVERY AS SPECIFI
ABOVE, STORAGE AND RELATED COSTS AT THE RATE OF 1% PER MONTH WILL BE ADDED T
THE PURCHASE PRICE OF SUCH EQUIPMENT.
COMPANY NAME BY
TITLE -DATE
•
iPRICES SHOWN ARE F.O.B. POINT OF ORIGIN, UNLESS OTHERWISE INDICAT D AND DO N
INCLUDE APPLICABLE SALES TAXES, IF ANY. QUOTED :MI 'CO
P.O. BOX 15316
HOUSTON, TEXAS 77220 -5316 TITLE- PN-�F S I I
(713) 672 -8080 BY: /
ACCEPTANCE AND PURCHASE ORDER
THE ABOVE QUOTATION IS ACCEPTED SUBJECT TO.THE TERMS AND CONDITIONS ON THE
ATTACHED HEREOF AND SYSCO FOOD SERVICES, INC. IS AUTHORIZED TO SHIP THE ABON
DESCRIBED MERCHANDISE. TERMS OF SALE, F.O.B., AND DELIVERY ARE AS INDICATEI
ABOVE. PURCHASER AGREES THAT SHOULD PURCHASER NOT ACCEPT DELIVERY AS SPECIF:
ABOVE, STORAGE AND RELATED COSTS AT THE RATE OF 1% PER MONTH WILL BE ADDED
THE PURCHASE PRICE OF SUCH EQUIPMENT.
COMPANY NAME
TITLE
BY
DATE
E- 191T A
SYSCO FOOD SERVICES
RE:MC110204
QUOTATION
TO: S
DATE: 11/02/95
YOUR REF. NO:EQUIPMENT
C /O C ITY OF BAYTOWN
C/O C
F.O.B.:AS STATED
ATTN• JEFF.STOVER
DELIVERY
TIME:4 -6 WEEK
ARO
TERMS:AS
SPEC. SEE TERMS & COND.
THIS QUOTATION EXPIRES IN THIRTY DAYS, UNLESS
OTHERWISE INDICATED.
ITEM
NO
QTY. UNIT
DESCRIPTION
PRICE UNIT
EXTENSION
75
3 EA
DRAIN BOARD SLWB -15
140.00 EA
420.00
76
3 EA
BLENDER STATION CRRS -15
280.00 EA
840.0(
i7
1 EA
HOBART 48" ELECTRIC GRIDDLE.
1000.00 EA
1000.0(
CG -41
81
1 EA
SUPREME 4 COMP. BAR SINK 12"
835.00 EA
835.01
SINKS, 18" DRAINBOARD CRB -74C
87
1 EA
HOBART F-100 FOOD PROCESSOR
1875.00 EA
1875.0
WITH ATTACHMENTS & SIX PACK KIT.
84
1 LOT
GOLD BOND-COOLER /FREEZER
1830.00 EA
1830.0
SHELVING
88
1 EA
HOBART HCM 450
7320.00 EA
7320.0
89
1 EA
PITCO P -24 FILTER MACHINE
1586.00 EA
1586.0
90
1 LOT
RECEIVE, DELIVER, UNCRATE & SET
1980.00 EA
1980_C
IN PLACE.
TOTAL
60,522.:
iPRICES SHOWN ARE F.O.B. POINT OF ORIGIN, UNLESS OTHERWISE INDICAT D AND DO N
INCLUDE APPLICABLE SALES TAXES, IF ANY. QUOTED :MI 'CO
P.O. BOX 15316
HOUSTON, TEXAS 77220 -5316 TITLE- PN-�F S I I
(713) 672 -8080 BY: /
ACCEPTANCE AND PURCHASE ORDER
THE ABOVE QUOTATION IS ACCEPTED SUBJECT TO.THE TERMS AND CONDITIONS ON THE
ATTACHED HEREOF AND SYSCO FOOD SERVICES, INC. IS AUTHORIZED TO SHIP THE ABON
DESCRIBED MERCHANDISE. TERMS OF SALE, F.O.B., AND DELIVERY ARE AS INDICATEI
ABOVE. PURCHASER AGREES THAT SHOULD PURCHASER NOT ACCEPT DELIVERY AS SPECIF:
ABOVE, STORAGE AND RELATED COSTS AT THE RATE OF 1% PER MONTH WILL BE ADDED
THE PURCHASE PRICE OF SUCH EQUIPMENT.
COMPANY NAME
TITLE
BY
DATE
0
EXHIBIT A
PH o
Ninfa's
Quote dated:
Validity:
Terms:
10120185
30 Days
50% with order, 40% on delivery, 10% net 30 days
ii'c
QTY. KNIT bl~SCR/PT1ON
SALES
SALES
EA.
TOTAL
84
1 lot
Cooier/Frae2er Shriving
52.948.00
$2.948.00
Mfg.: lnternmov
Model: SuoerErecta Metroseal it
To consist at
24 ea,
2460NK2 Shelves
16 ea.
2448NK2 Shelves
20 ea.
74PK2 Posts
85
1 lot
Walk4n CooiK
$17,351.00
$17,351.00
Mfg.: Arc0c
2 compartment cooler/Fnwaar comUns6on, overall size 9'9' x 28'9" x
8'8 -W8" NO. embossed aluminum interior and e3derwr. galvanbmd
steel floor, 1 hp. coroder>.sing unit for cooler, 2 hp. for freezer, hscludes
carnpressor cover, winder controls, 5 year compressor warranty and
10 years panels warranty.
86
1 w
Walidn Frww
Ind. in * 85
�N ABC
87
1 ea.
Food Processor
$1.478.00
$1 ,478.00
Mfg.: Hobart
Model: FP81
88
1 ca.
Cutler/Mixer
$7,479.00
$7,479.00
Mfg.: Hobart
Model: HCM -450
84
1 lot
Fire &Wpression 3yatem (AU #true hoods)
$5,717.00
$5,717.00
Mfg.. Ansul
Model: R -102
Sub- Total:
$159.297.00
Phoenix Of Texas
Page 13 of 14
i C112 95
•
SYSCO FOOD SERVICES
QUOTATION
TO:NINFA'S
C/O CITY OF BAYTOWN
ATTN: JEFF.STOVER
THIS QUOTATION EXPIRES IN THIRTY DAYS,
RE:MC110205
DATE: 11/02/95
YOUR REF. NO:EQUIPMENT
F.O.B.:AS STATED
DELIVERY TIME:4 -6 WEEK ARO
TERMS:AS SPEC. SEE TERMS & COND.
UNLESS OTHERWISE INDICATED.
ITEM
NO
QTY.
UNIT
DESCRIPTION
PRICE
UNIT
EXTENSION
TAXABLE ITEMS:
44 SHELVING
#7 CONTAINER
#20 SINK
#29 FOOD WARMER
#31 2 BULB HT. LAMP
#50 HEAT STRIP
#51 DISH DOLLY
453 44 GAL. CONTAINER
#54 MOP SINK
#56 DRAWER WARMERS
#72 TRASH CAN
#73 JOCKEY BOX
#75 DRAIN BOARD
#76 BLENDER STATION
#81 4 COMP BAR SINK
484 SHELVING
489 FILTER MACHINE
190 RECEIVE DELIVER
PRICES SHOWN ARE F.O.B. POINT OF ORIGIN, UNLESS OTHERWISE INDI
INCLUDE APPLICABLE SALES TAXES, IF ANY.
P.O. BOX 15316 QUOTED :MI
HOUSTON, TEXAS 77220 -5316 TITLE• =F91c
(713) 672 -8080 BY'
AND ,,p0 NO
ACCEPTANCE AND PURCHASE'ORDER
THE ABOVE QUOTATION IS ACCEPTED SUBJECT TO-THE TERMS AND CONDITIONS ON THE
ATTACHED HEREOF AND SYSCO FOOD SERVICES, INC. IS AUTHORIZED TO SHIP THE ABOVE
DESCRIBED MERCHANDISH. TERMS OF SALE, F.O.B., AND 'DELIVERY ARE AS INDICATED
ABOVE. PURCHASER AGREES THAT SHOULD PURCHASER NOT ACCEPT DELIVERY AS SPECIFIi
ABOVE, STORAGE AND RELATED COSTS AT THE RATE OF 1% PER MONTH WILL BE ADDED T(
THE PURCHASE PRICE OF SUCH EQUIPMENT.
COMPANY NAME
TITLE
BY
DATE
THE STATE OF TEXAS)
COUNTY OF HARRIS)
FIELD NOTES of a 0.9010 of an acre tract of land situated in the
William Scott Upper League, Abstract No. 66, Harris County, Texas,
and being out of and a part of a 45.3774 acre tract of land called
Tract 2 in a deed from B.F.B., Inc., to City of Baytown, dated
November 20. 1979, and recorded at County Clerk's File Number G
388038 of the Official Public Records of Real Property of Harris
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 COORDINATES
REFER TO THE STATE PLANE COORDINATE SYSTEM, SOUTH CENTRAL ZONE, AS
DEFINED BY ARTICLE 5300A OF THE REVISED CIVIL STATUTES OF THE STATE
OF TEXAS, 1927 DATUM. ALL DISTANCES ARE ACTUAL DISTANCES.
REFERENCE IS MADE TO PLAT OF EVEN DATE ACCOMPANYING THIS METES AND
BOUNDS DESCRIPTION.
COMMENCING at a 2 inch galvanized iron pipe found for the West
corner of a 12.34 acre tract of land conveyed to the City of
Baytown by William Marsh Rice University by deed dated March 31,
1995, and recorded at County Clerk's File Number R 354555 of the
Official Public Records of Real Property of Harris County, Texas
and the North corner of a 10.00 acre tract of land called Tract 1
in a deed from Frank N. Angel to Le Roy E. Pearce, dated August 1,
1989, and recorded at County Clerk's File Number M 310862 of the
Official Public Records of Real Property of Harris County, Texas.
This corner is in the South right of way of State Highway No. 146,
right width varies, and has a State Plane Coordinate Value of Y =
705,022.15 and X = 3,269,733.81.
THENCE South 47 deg 49 min 20 sec East with the Southwest line of
said 12.34 acre tract of land and the Northeast line of said 10
acre tract of land, at 489.45 feet found a 2 inch galvanized iron
pipe in line for the East corner of said 10.00 acre tract and the
North corner of said 45.3774 acre tract of land, continuing on with
the Northeast line of said 45.3774 acre tract and the southwest
line of said 12.34 acre tract of land a total distance of 1463.43
feet to a point.
THENCE South 42 deg 10 min 40 sec West a distance of 180.96 feet. to
a 1/2 inch iron rod set for the Northwest corner of this tract of.
land. This corner has a State Plane Coordinate Value of
Y = 703,872.71 and X = 3,270,666.92.
THENCE South 66 deg 00 min 00 sec East with the North line of this
tract of land a distance of 142.02 feet to a 1/2 inch iron rod set
for the Northeast corner of this tract of land.
• THENCE South 03 deg 08 min 09 sec West with the East line of this
tract of land a distance of 183.74 feet to a 1/2 inch iron rod 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 Sth., day of
September, A.D., 95.
REG. PROFESSIONAL LAND SURVEYOR
NO. 1610
4530LEAS.FDN
1019
( -.; * moo- ryN,
MUM L. HALL, A
.. ..........
9 1610
�y0
"U RV
0
•
A
Np - SCALE: I INCH - 200 FEET
�S
00 1E ?E A - 66
S
lC
/ e9a os
c
10 � oct Png�1
e1 •
�A40 f ��2� FPpp�• �o P•�969
o `
0/' `aRoa �• 0�62�co�as
p�9�, 3;�c R � o.xo•
eGo spy . Z
o�
N
NOTE: ALL BEARINGS ARE LAMBERT GRID BEARINGS AND
ALL COORDINATES REFER TO THE STATE PLANE COORDINATE
SYSTEM. SOUTH CENTRAL ZONE. 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 METES AND
BOUNDS DESCRIPITON OF EVEN DATE ACCOMPANYING
THIS PLAT.
I. Robert L. Hall. Jr; Ry. Profee•lo•al Lead Sere \
Plat delie-ate• the rsell• a! • ssr-ey Wade s•dor •
all lime•. boeederle• eid le•d••rke ere eeasratoly •
WITNESS ■y hand and seal at Baytown. Tosa•. this the\ \
REO. PROFESSIONAL LAND SURVEYOR 4 \ \
MO. 1610
ROSEM \
'0
BUSCH, HUTCHISON It OF 0.9010 ACRE
BAYTOWN MARINIA
ENGINEERS • ARCHITEC "OTT UPPER LEAGUE
007 FLEETWOOD DR. COUNTY. TEXAS
0 EXHIBIT "D"
PREMISES IMPROVEMENTS
Premises Improvements include:
1. the premises building including all interior and exterior finishes constructed in accordance with
the architectural plans to be approved by Lessor, and to an extent commonly referred to as "turn
key ".
2. all electrical and mechanical equipment as shown on the architectural plans and specifications
to be approved by Lessor;
3. all water and sewer lines and equipment in accordance with the plans;
4. all heating ventilating and air conditioning equipment;
S. the foundation (pad) supporting the building;
6. all utility lines to the premises;
7. all architectural and engineering services associated with the design of Lessee's Improvements;
8. the kitchen hood and ventilation system;
9. permanently affixed walk -in coolers and freezers; and
10, all furniture, fixtures and equipment listed on Exhibit "A."
0 c:klh l 1lcontractsll cxh i bitd
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF HARRIS §
WHEREAS, THE CITY OF BAYTOWN, a municipal corporation, of the County of Harris
in the State of Texas, hereinafter called BORROWER, for the purpose of securing a loan from
CITIZENS BANK AND TRUST COMPANY OF BAYTOWN, TEXAS, a State banking
corporation, of the County of Harris in the State of Texas, hereinafter called CITIZENS, has
executed its one certain promissory note of even date herewith, in the principal sum of
$1,800,000.00, bearing interest as therein specified, and payable to the order of CITIZENS in
installments as therein provided, said note providing for acceleration of maturity in event of default
and for attorneys' fees, and for the purpose of securing said note has executed a Lease and Rental
Assignment to CITIZENS of all leases and rental contracts which have been and which may
hereafter be executed covering all or any part of the real property described in said lease, and all
rentals and income therefrom, such assignment to become effective only in event of default in the
payment of said note or in the performance of any covenant contained in said Lease and Rental
Assignment and Security Agreement.
WHEREAS, the undersigned Lessee is in possession of said real property or a part thereof
under and by virtue of a written lease, dated November 9, 1995, entered into by and between THE
CITY OF BAYTOWN, a municipal corporation, as Lessor, and ONE BAYLAND DRIVE, L.C.,
as Lessee, a copy of which lease is hereto attached and made a part hereof;
WHEREAS, CITIZENS will not close said loan and advance the funds thereof and accept
said note and Lease and Rental Assignment unless and until the undersigned Lessee confirms certain
representations heretofore made to it by said BORROWER and agrees to certain matters with respect
to Lessee's leasehold rights and estate;
NOW, THEREFORE, in consideration of the premises and in consideration of CITIZENS
making and closing said loan, the undersigned Lessee hereby confirms, represents and agrees as
follows:
I . Subject to completion of the premises according to plans and specifications, the
undersigned Lessee agrees to accept possession of the premises demised pursuant
to the terms of the aforesaid lease.
2. The Lessor is not in default in any manner on the performance of any of the terms,
covenants or provisions of said lease.
® 3. That the aforesaid lease has not been modified, altered or amended.
EXHIBIT r
•
•
4. That there are no offsets or credits against rentals, nor have rentals been prepaid,
except as provided by the lease term.
5. That the term or primary tern of said lease expires November 8, 2005, and Lessee
is not in default in the payment of such rentals.
6. That the undersigned Lessee has no notice of an assignment, hypothecation or pledge
of rents or the lease, except to CITIZENS.
7. That as long as the indebtedness to CITIZENS remains unpaid, the undersigned
Lessee agrees as follows:.
(A) That no rental shall be prepaid under said lease for more than one month in
advance. during the term thereof except as may be required to be paid in advance by
the express terms thereof, without first obtaining the written consent of CITIZENS;
(B) That said lease will not be changed or modified in any manner without first
obtaining the written consent of CITIZENS; and
(C) To give prompt written notice to CITIZENS in the event of damage or
destruction to the premises by fire or other casualty.
This agreement shall be binding upon and shall inure to the benefit of the' legal
representatives, heirs, successors and assigns, respectively, of the undersigned Lessee and
CITIZENS.
EXECUTED, this day of November, 1995.
ATTEST:
c Vhamdlninrat2dxl
it
C
ONE BAYLAND DRIVE, L.C.
® $206,623.67 PROMISSORY NOTE
STATE OF TEXAS §
COUNTY OF HARRIS §
December 31, 2001
FOR VALUE RECEIVED, the undersigned Ninfa's Holdings, L.P. (Maker) promises to pay to
the order of City of Baytown (Holder) the sum of TWO HUNDRED SIX THOUSAND SIX
HUNDRED TWENTY -THREE 67/100 DOLLARS ($206,623.67) in the currency of the United
States of America together with interest as set forth below.
Interest Rate
1. Interest shall accrue on the unpaid balance of the principal amount at the rate of 7.64
percent per annum prior to maturity and at the rate of 12 percent per annum after
maturity. Interest shall by calculated based upon a 365 -day year.
Payment
2. The principal amount, plus accrued interest to the date of payment, shall be due and
payable in 60 monthly installments of $4,154.07 each, beginning on the 15th day of
February 2002, and continuing on the 15th day of each month. The monthly payments
provided for herein shall first be applied to the payment of interest accrued and the
balance of which payment shall be applied to the payment of principal. Payments shall
be made by Maker to Holder at the following address:
2401 Market
P.O. Box 424
Baytown, Texas 77522 -0424
Prepayment
3. Maker shall have the right to prepay the principal in whole or in part at any time, and
interest shall immediately cease to accrue as of the date of payment on any amount of
principal that is prepaid. Prepayments shall be applied as a credit against the last
maturing installment or installments of principal due hereunder and shall not operate to
defer or otherwise postpone the regular obligatory installments of principal payable
hereunder.
Default
0 4. Failure to pay any installment of this Note, either principal or interest, as and when the
same is or becomes due and payable hereunder, or in the event of default of maker in any
1 ll�
® of the terms, provisions or conditions of any instrument executed or to be executed by
Maker as security for payment hereof, and such default shall continue for a period of ten
days after written notice to Maker of such default, shall, at the election of Holder hereof,
mature this Note so that the entire unpaid balance of principal and any unpaid interest is
immediately due and payable.
Waivers
S. Maker, every surety, and every endorser of this Note severally waive demand,
presentment, notice of non - payment, protest, notice of protest, notice of intent to
accelerate, notice of the exercise of option to accelerate, filing of suit, and diligence in
collecting this Note or enforcing any security herefor, and consents and agrees to all
renewals, extensions, and partial payments both before and after maturity without
prejudice to Holder.
Attorneys' Fees
6. If this Note is not paid at maturity and is placed in the hands of an attorney for collection,
or if it is collected through a court of bankruptcy, probate, or other court after maturity,
then Holder shall be entitled to reasonable attorneys' fees for collection.
Usury Exclusion
7. It is the intention of the Maker and Holder to conform strictly to the usury laws in force
in the State of Texas and the United States of America. It is therefore agreed that (i) in
the event that the maturity hereof is accelerated by reason of an election by Holder, or if
the same is prepaid prior to maturity, all unearned interest shall be cancelled
automatically, or if theretofore paid, shall be either refunded to the Maker or credited on
the unpaid principal amount of this Note, whichever remedy is chosen by Holder, (ii) the
aggregate of all interest and other charges constituting interest under applicable law and
contracted for, chargeable or receivable under this Note shall never exceed the maximum
amount of interest nor produce a rate in excess of the maximum rate of interest that
Holder may charge Maker under applicable law and in regard to which the Maker may
not successfully assert the claim or defense of usury, and (iii) if any excess interest is
provided for, it shall be deemed a mistake and the same shall either be refunded to Maker
or credited on the unpaid principal amount hereof, and the Note shall be automatically
deemed reformed so as to permit only the collection of the maximum non - usurious rate
and amount of interest allowed by applicable law. All sums paid or agreed to be paid to
the Holder hereof for the use, forbearance or detention of the indebtedness evidenced
hereby shall, to the full extent permitted by applicable law, be amortized, prorated,
allocated and spread through the full term of this Note.
THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
19 THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
r
Signed this the I day of .1 2002,
signature
Printed Name
Title
•
rf -4
1�IN 0] ;
NINFA'S HOLDINGS, L.P., a Texas limited
partnership
BY: NINFA'S HOLDINGS MANAGEMENT,
L.L.C, a Texas limited liability company,
General Partner of Ninfa's Holdings, L.P.
By: er
•
Termination of Lease Aereement
STATE OF TEXAS §
COUNTY OF HARRIS §
This Termination of Lease Agreement (this "Agreement ") is made and entered into by
and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers
Counties, Texas; hereinafter called "Lessor;" and NINFA'S HOLDINGS, L.P., having its
principal place of business at 2727 Canal Street, Houston, Texas 77003 -1526 and ONE
BAYLAND DRIVE, L.C., having its principal place of business at 214 N. Nagle, Houston,
Texas 77003 as successor in interest in fact to TWO BAYLAND DRIVE, L.C., hereinafter
collectively called "Lessee."
I.
Termination
f
Lessor and Lessee, parties to that certain Lease of Premises dated March 29, 1946, which
is attached as Exhibit A (the "Lease "), hereby mutually agree to terminate the Lease subject to
and contingent upon Lessee's satisfaction of the following terms and conditions:
1.01 Any capitalized term not defined herein shall have the definition ascribed thereto in the
Lease, unless the context clearly requires otherwise.
1.02 The effective date of the termination shall be December 31, 2001', ( "Termination Date ")
and no further notice of such termination be required by either party.
1.03 Lessor agrees and acknowledges that Lessee has: (i) vacated the Premises and returned it
to Lessor in a condition acceptable to Lessor; (6) made any and all repairs to the Premises
required by Section 5.03 of the Lease; (iii) removed all of Lessees' property (as defined by
Section 4.05 of the Lease) from the Premises as required by Section 2.03 of the Lease; and
(iv) left on the Premises all of Lessor's property (as defined by Section 4.06 of the Lease).
1.04 On the Termination Date, Lessee shall tender to Lessor a promissory note in the form
attached hereto as Exhibit B (the "Promissory Note ") in which Lessee agrees to pay all
outstanding rents and monies under the Lease yet to be paid.
1.05 Lessor and Lessee confirm, acknowledge and agree that as of the Termination Date, the
Lease is terminated and is of no force and effect, and that, from and after said date, no party
shall have any further rights, duties or obligations thereunder, unless expressly referenced
herein. Lessee hereby waives and releases any right, title and interest that Lessee may have
with respect to the Premises, and Lessee and Lessor hereby mutually release each other from
any obligations and claims arising under the Lease or in connection with the Premises, except
as otherwise provided in Section 1.06 below.
f 11 ;
® 1.06 Lessee acknowledges and agrees that termination of the Lease does not relieve Lessee of
any existing obligations to third parties. Lessee acknowledges and agrees that nothing in this
Agreement shall be construed to relieve it of its obligations under the Promissory Note or
under the indemnity provisions provided for in the Lease, which indemnity shall survive
termination or earlier expiration of the Lease and this Agreement.
R.
General Provisions
2.01 Neither party shall be liable or deemed in default for any delay or failure in performance
of this Agreement resulting directly or indirectly from any cause beyond the control of the
party-
2.02 No action, regardless of form, arising out of the transactions under this Agreement, may be
brought by Lessee more than one year after the cause of action has occurred.
2.03 If any part, term, or provision of this Agreement shall be held illegal, unenforceable, or in
conflict with any law of a federal, state or local government having jurisdiction over this
Agreement, the validity of the remaining portions or provisions shall not be affected by such
holding.
2.04 A waiver by Lessee or Lessor of any breach of any term, covenant, or condition
contained in this Agreement shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant, or condition contained in this Agreement, whether of
the same or different character.
2.05 This Agreement may not be assigned, sub - licensed or otherwise transferred by Lessor or
Lessee without the written consent of the other party. Any purported assignment, sub - license
or transfer in violation of this provision shall be void. Subject to the foregoing, this Agreement
shall inure to the benefit of and be binding upon Lessor and Lessee only.
2.06 This Agreement constitutes the entire agreement and all understandings between the parties
concerning the. subject matter hereof and supersedes all prior proposals or other
communications between the parties, oral or written, except for the Promissory Note effective
December 31, 2001. No modifications and amendments hereto shall be binding upon either
party unless in writing and signed by a duly authorized representative of the parties.
2.07 This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas, regardless of the place of execution or
performance. The place of making and the place of performance for all purposes shall be
deemed to be Baytown, Harris County, Texas.
2.08 The individuals executing this Agreement warrant and represent that they are duly
authorized to execute this Agreement on behalf of Lessor and Lessee as binding act and
® agreement of Lessor and Lessee, respectively.
i
® 2.09 In the event of any ambiguity in any of the terms of this Agreement, it shall not be
construed for or against any party hereto on the basis that such party did or did not author the
same.
2.10 Lessee agrees that in the performance of its undertakings and obligations under this
Agreement, Lessee will strictly observe and abide by all rules, regulations and laws of the
United States of America, the State of Texas and the City of Baytown, as they now exist or
may hereinafter be enacted or amended.
2.11 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 THEREOF AND INTENDING TO BE LEGALLY BOUND, the parties
have caused this Agreement to be signed by its duly authorized officer on the _ day of January
2002.
f
City of Baytown, TX
Its:
One Bayland Drive, L.C.,
a Texas limited liability company
nt
Ninfa's Holdings, L.P.
By: Ninfa's Holdings Management,
L..L.C, general partner of Ninfa's
Holdings, L.P.
er
�`�/yla�e�o c•Uv
® STATE OF TEXAS §
§
COUNTY OF HARRIS §
Before me, the undersigned notary public, on this day personally appeared a
in his capacity as President of ONE BAYLAND DRIVE, L.C.
C. d, -,.
&"" known tome
proved to me on the oath of
or
proved to me through his 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)
(� 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 I day of f�ti vr� ��i , 2002.
CRISTELIA R PEREZ
Notary Public, Stale of Texas
ti My Commission Expires Notary Public d for the State of Texas
" t OF1 10.19 -2004
® STATE OF TEXAS §
§
COUNTY OF HARRIS §
Before me, the undersigned notary public,. on this day personally appeared a
in his capacity as xer of NINFA'S HOLDINGS MANAGEMENT, L.L.C., general
partner of NINFA'S HOLDINGS, L.P.
✓ known to me
proved to me on the oath of or
proved to me through his 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}
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 seat of office thisLday of , 2002.
CRISTELIA R PEREZ
Notary Public, State or Texas Notary Public d for the State of Texas
My Commission Expires
10.19.2004
•
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, the undersigned notary public, on this day personally appeared
in his/her capacity as of the City of Baytown,
Texas.
known to me
proved to me on the oath of or
proved to me through his 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)
(4 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 _day of _ , 2002.
Notary Public in and for the State of Texas
•
This lease is signed on this ,- "? day of March, 1996, between The City of Baytown,
Texas, a municipal corporation located in Harris and Chambers Counties, ( "Lessor ") and Two
Bayland Drive, L.C., having its principal place of business at 214 N. Nagle; Houston,. Texas 77003
( "Lessee "). The Lessor and Lessee agree as follows:
DEFINITIONS
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 pennanent decor items, more particularly described on Exhibit "A," which is attached
hereto and made a part hereof for all intents and purposes.
Premises Improvements shall not include:
(a) any consumable items including, but not limited to inventory, office supplies
and paper goods, which costs shall be the sole responsibility of the Lessee;
(b) site improvements, including but not limited to curb cuts, entryways, parking
lots, parking lot lighting, sign pylons, sign monuments, walkways, all utility
extensions, sprinkler systems, landscaping materials; and
(c) except for architectural and engineering services, services performed by
consultants, developers or project managers rendered in the guidance or management
of the completion of Lessor's Project Improvements.
Lessor's Project Improvements. Lessor's Project Improvements shall include the
following:
(a) Premises Improvements, as more particularly described in Exhibit "A," and
(b) all project site improvements constructed in accordance with approved architectural
and engineering drawings, which shall include, but not be limited to, curb cuts, entryways, all
parking lot lighting, sign pylons, sign monuments, walkways, utility extensions, sprinkler systems,
® and landscaping materials.
EMIT A
! ,
® Architectural and Engineering Fees. Fees paid solely for the preparation of architectural and
engineering plans for Lessor's Project Improvements. Such fees shall not include project
management fees, which include those fees paid for the professional services of a master plan
developer or the professional services of others that are not essential, as reasonably determined by
the Lessor, to the construction of the facility to be located on the Premises.
0
Lease Commencem. ate: The earlier of either the date the premises of the restaurant
facility, which is leased to One Bayland Drive, L.C., and is nearby to the premises herein opens for
business or forty-five (45) days after the Lessor issues the certificate of occupancy for the Restaurant
facility.
Rent Commencement Date:. Exactly one month after the Lease Commencement Date.
Interim Term of Lease: The Interim Term of this lease shall commence on the date both
parties have executed this lease and end with the Lease Commencement Date. References to "term"
herein shall, unless stated otherwise, include the Basic and Interim Term and any extensions thereof.
H@&or Master Facility: The Harbor Master Facility shall include a ships store, boating
slips, bathhouse, laundromat, and fuel and boat service dock, which will be staffed, operated, and
managed by the Lessee in compliance this Agreement.
Operating Costs: The operating costs shall be comprised of all direct costs associated
with the operation of the slip rental and the bath house portion of the Harbor Master Facility.
ARTICLE 1
Premises
1.01 The Bayland Harbor Development. The Lessor owns the tract of land in Harris County,
Texas, more particularly described in Exhibit `B" (the "Premises ") which is a part of the Bayland
Development. The development shall be in conformity with the plan attached hereto as Exhibit "C"
(the "Plan").
1.02 Premises. The Lessor hereby rents and leases unto the Lessee, and the Lessee hereby
takes and hires from the Lessor, a portion of the land of the Bayland Development described as
follows:
(a) The 'Premises," which consists of:
(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
2
r
1
the Premises parcel consisting 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 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.
F-' -_I Is) 11 W
Term and Rental
2.01 Term. The Basic Term of this lease shall commence on the Lease Commencement Date,
as herein defined, and continue thereafter until five (5) years have elapsed. Immediately after the
Lease Commencement Date, the Lessor and the Lessee may .enter into an agreement in recordable
form setting forth such date.
2.02 Right of Extension. The Lessee is granted the right to extend the Basic Term for an
additional period of five (5) years. If the Lessee elects to extend the Basic Term for the first
additional period of five (5) years, the Lessee may also elect to extend the Basic Term for a second
additional period of five (5) years immediately following the first additional period. If the Lessee
elects to extend the Basic Term for the second additional period of five (5) years, the Lessee may
also elect to extend the Basic Term for a third additional period of five (5) years immediately
following the second additional period. If the Lessee elects to extend the Basic Term for the third
additional period of five (5) years, the Lessee may also elect to extend the Basic Term for a fourth
additional period of five (5) years immediately following the third additional period. If the Lessee
elects to extend the Basic Term for the fourth additional period of five (5) years, the Lessee may also
elect to extend the Basic Term for a fifth additional period of five (5) years immediately following
the fourth additional period. If the Lessee elects to extend the Basic Term for the fifth additional
period of five (5) years, the Lessee may also elect to extend the Basic Term for a sixth additional
period of five (5) years immediately following the fifth additional period. If the Lessee elects to
extend the Basic Term for the sixth additional period of five (5) years, the Lessee may also elect to
extend the Basic Term for a seventh additional period of five (5) years immediately following the
sixth additional period. In each case, the option may be exercised by giving the Lessor written notice
thereof at least one hundred eighty (180) days before the expiration of the applicable term. All of the
® terms and conditions hereof shall apply during the additional term(s), unless otherwise modified in
writing by the parties hereto.
2.03 Removal of Lessee's Prop a. 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 (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 Term. Starting exactly one (1) month after the Lease
Commencement Date and during the Basic Term and each extension thereof, the Lessee shall pay
to the Lessor the following minimum annual rent payable in advance in equal monthly installments.
(a) An "Annual Minimum Rental" calculated in accordance with
Section 2.05(b) of this Lease, per Lease Year from and after the Rent
Commencement Date, it being understood that except as otherwise herein
provided, the use and occupancy of the premises shall be rent -free during the
Interim Term and for the first month after the Lease Commencement Date.
(b) The "Annual Rental" beginning on the Rent Commencement Date
shall be the sum of the cost of Premises Improvements as more fully
4
® described in Exhibit "A" to this Lease, plus all interest accrued on the cost of
Premises Improvements, including, but not limited to, the interest which will accrue
during the Interim Term, and the first month of the Lease, amortized over a period
of one hundred seventy -nine (179) months, in equal monthly installments of principal
and interest, at an annual interest rate between seven and one - quarter percent (7.25 %)
and eight percent (8.00 %), plus the following:
The cost of the Premises Improvements used in the calculation of the Annual
Rental shall at no time exceed $300,000.
For and in consideration of the Lessor's entering into this Lease and performing
services appurtenant thereto, the Lessee and the Guarantor understand and agree that
the Lessee and the Guarantor are obligated, jointly and severally, to pay to the Lessor
the following Termination/Cancellation Fee should the lease expire or be terminated
by either party prior to the expiration of ten (10) years after the Lease
Commencement Date, which amount shall be immediately due and owing upon
expiration of the initial term or termination hereof, whichever is earlier:
•
OWED.. .
1
$19,000
2
$26,315
3
$26,315
4
$26,315
5.
$26,315
The cost of the Premises Improvements used in the calculation of the Annual
Rental shall at no time exceed $300,000.
For and in consideration of the Lessor's entering into this Lease and performing
services appurtenant thereto, the Lessee and the Guarantor understand and agree that
the Lessee and the Guarantor are obligated, jointly and severally, to pay to the Lessor
the following Termination/Cancellation Fee should the lease expire or be terminated
by either party prior to the expiration of ten (10) years after the Lease
Commencement Date, which amount shall be immediately due and owing upon
expiration of the initial term or termination hereof, whichever is earlier:
•
0
•
Year of
Termmahon/
Termuiation. 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
42,542.08
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 (1) year and eleven (11)
months after the Lease Commencement Date, the Lessee shall pay a
Termination/Cancellation Fee of $138,222.50 to the Lessor. The Lessee and the
Lessor hereby irrevocably agree that should the Lessee or Lessor fail to 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 shall be in addition to any
other remedy to which the Lessor may show itself entitled in law or in equity.
2
• If the Termination/Cancellation Fee is not paid as and when due and is placed in the
hands of an attorney for collection or is collected through a bankruptcy or other court,
the undersigned promises to pay fifteen percent (15 %) additional on the amount due
and owing at the time of expiration or termination. It is expressly acknowledged and
agreed by all parties hereto that this provision concerning the amounts to be paid at
the expiration or termination of this lease prior to the expiration of ten (10) years
from the Lease Commencement Date shall survive the expiration of the remainder
of this Agreement.
First Qption-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 al I merchandise, goods, fuel, property and services sold at or from the Premises,
7
exclusive of any and all slip rental revenues (whether for cash or otherwise) by the Lessee.
No promotional material given away by the Lessee shall be included in Gross Sales.
Taxes on sales and liquor as well as other similar taxes and discounts received by the
Lessee on credit cards are not part of Gross Sales. The sales price of merchandise that is
returned by customers during a period of time shall be deducted from Gross Sales for that
period of time to the extent included in the computation of Gross Sales when the
merchandise is sold. On or before the sixtieth (60th) day after the end of each lease year,
the Lessee shall famish to the Lessor a statement certified by an officer of the Lessee of
the Gross Sales during such year (the "Annual Statement') and if, for any reason, the sales
reported after the end of the year are more or less than the sales reported each month
during the year, then the Lessee will either pay any deficiency or receive an offset-from
percentage rent the following month. The Lessee shall keep and make available at the
premises accurate records of Gross Sales for each year and partial year. These records
shall be open for inspection by the Lessor. or its duly authorized representatives at all
reasonable times. The Lessee shall not be required to retain any records for any year for
more than five (5) years after the end of that year, but shall not dispose of any such
records before that time. The failure to so preserve the records or to provide them to the
Lessor upon request shall be cause for termination of this Agreement at the election of the
Lessor.. The Lessor shall have the right at any time to audit any Annual Statement and all
of the books and records supporting any Annual Statement. The Lessee shall make all of
these records readily available for the examination. If-any audit by the Lessor shows an
understatement by more than five percent (5 %) of Gross Sales in the Annual Statement,
then the cost of the audit shall be paid by the Lessee. If the audit shows the rent in fact
due exceeds the amount of the rent paid by the Lessee, then the Lessee shall pay the
Lessor the amount of the deficiency within ten (10) days written notice of such deficiency.
2.06. Gross Lease. Except as otherwise provided for elsewhere in this lease, Lessee's sole
monetary responsibility shall be the timely payment of rent as provided for in this Article 2 of the Lease.
All payments required herein to be paid by the Lessee shall be due on or before the fifth (5th) day of each
month. If payment is, not received at the appointed time, Lessee will be obligated to pay interest on
delinquent payment in the amount of one percent (1 %) per month.
2.07 No Partnership. Nothing herein contained shall be construed or held to make the Lessor and
the Lessee partners in the conduct of any business. The relationship between the parties hereto is and
shall at all time remain that of the Lessor and the Lessee.
2.08 Right to Inspect Premises. 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 Emergency Management. 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.
0
•
2.10 Construction _of AdditiotZl Boat Slips. The Lessor reserves the right to construct additional
boat slips at any time in which the Lessor, in its sole discretion, deems it advisable to do so. Such
additional slips shall become part of the Premises as herein.defined; and the Lessor shall be entitled to
additional compensation due to such addition. The amount of such compensation shall be determined
at the completion of the construction of the additional slips by the parties. Both'the Lessor and the Lessee
understand and agree that they will negotiate such amount in good faith and that such amount shall not
be less than the amount which the Lessor would receive based on the formula specified in Section 2.05
(b) or (c), whichever is greater.
2.11 Boat Slips for Use by Lessor's Emergency Vessels. The Lessor reserves the right to use at
no cost or expense the number of boat slips necessary as determined at the sole discretion of the Lessor
to accommodate its emergency vessels. As an alternative to the use of such slips, the Lessor may, again
at its sole option, build slips for such purposes on the Premises or attached thereto or to any improvement
thereon, including, but not limited to the boat slips and walkways built at the time of this lease or which
may hereinafter be constructed. The election of any one option expounded above shall not constitute a
waiver for the Lessor to take advantage of the other option at a later date.
ARTICLE 3
Use and Occupancy
3.01 Eu . 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;
(c) to implement a marketing program geared to attract the general boating public to the ships
store and marina;
9
(f)
to develop policies and procedures, with approval of the City Manager, 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;
(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;
(m)
to notify the City Manager without delay of any maintenance problems or equipment
failures that require action by the Lessor;
(n)
to develop and implement a system for the satisfactory disposition of boat owners'
complaints and grievances;
(o)
to manage and handle all complaints regarding the Harbor Master Facility, its operations
and its use and to routinely apprise the City Manager of such complaints; and
(p)
to install and operate a storm and emergency warning system that conforms to standard
marina practices.
•
3.03 Maintenance andUtility Respond ib_lities, The Lessee will perform all janitorial and light
maintenance functions at the Harbor Master Facility, which shall include, but not be limited to routine
maintenance of docks, fueling station and ships store, and all maintenance pertaining to utility and cable
connections at each boat slip. At the ships store, the Lessee shall maintain at all times an adequate
inventory of goods. The Lessee shall be responsible for all utility costs associated with the Harbor Master
Facility.
3.04 Conformance to Law. In conducting its business on the Premises, the Lessee agrees to
conform to all applicable state, federal and local laws, ordinances, regulations and licensing requirements.
The Lessee shall have the right to contest in•good faith and by appropriate means any such law, regulation
or licensing requirement.
3.05 Covenant t e and Quiet . The Lessor covenants and warrants that
Lessor has the full right and lawful authority to enter into this lease for the full term hereof and that
Lessor has good, valid and marketable title to the Premises.
3.06 Successors and Assigns. The covenants and agreements herein contained shall run with the
Bayland Development and the Premises and shall be binding upon and inure to the benefit of the parties
and their respective heirs, legal representatives, successors and assigns.
i
3.07 Parkin . The Plan shows the Premises and the rest of the Bayland Development. The
Lessor agrees and warrants that the Lessee and its agents, employees, customers, and invitees shall have
the right (together with the other tenants of the Bayland Development and their respective employees,
invitees and customers and the general public) to use all of the parking areas and other common areas
shown on the Plan for vehicle parking purposes only. The Lessee understands and agrees that throughout
the term of this lease, and any option terms hereof, the 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 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 (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 shall to the satisfaction of the Lessor
keep the Premises adequately stocked with merchandise and with sufficient sales personnel to care for
the patronage, and to conduct said business in accordance with sound business practice.
In the event of a breach by the Lessee of any of the conditions contained in this section, the Lessor
shall have, in addition to any and all remedies at law or in equity, the right at its sole option to collect not
only the minimum monthly rent, which shall be deemed to be the largest monthly rental paid by the
Lessee prior to the date of the breach, but additional rent at the rate of one - thirtieth (1 /30th) of such
minimum monthly rent for each and every calendar day that the Lessee fails to conduct its business as
herein provided.
ARTICLE 4
Improvements
4.01 Improvements. The Lessor shall proceed to install the Lessor's Project Improvements which
are shown on the schedule attached hereto as Exhibit "A," in a reasonably expedient manner in
conformity with such specifications and criteria as the Lessee may select so long as the same are not in
derogation of the Plan or any other specification and/or criteria established by the Lessor.
4.02 Architectural and Engineetina 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 engineering work on
the design of the Premises shall begin. All architectural and engineering shall be completed and ready
for permitting ninety (90) days after such work has begun. The Lessor and the Lessee agree to cooperate
in providing standards, specifications and guidance to the architect and engineer regarding the design
needs of the Harbor Master Facility.
4.03 Commencement of Construction. No later than ninety (90) days after the completion of
architectural and engineering drawings including any revisions thereof, the Lessor shall commence
construction and thereafter proceed without undue delays to complete construction and authorize
occupancy of the premises by the Lessee.
4.04 Warran , 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 Property. 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 Sigm. 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 Maintain t' ' . 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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® 4.09 Lessor to Maintain ue ac' ' 'e and Lift Station, The 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 5
Maintenance, Repairs and Alterations
5.01 By Lessor. The Lessor, at its sole cost and expense, shall maintain and repair the foundation,
the building structure, exterior walls, roof, exterior windows, exterior doors and exterior mounted HVAC
units on the roof of the Premises. The Lessor shall also maintain, at its sole cost and expense, the
grounds and the landscaping materials adjacent to the Harbor Master Facilities and throughout the
Bayland Development, including the daily expenses associated with cleaning and maintenance of the
parking lot as well as maintenance of parking lot lighting. At all times during the term of this Lease, the
Lessor shall make reasonable efforts to fix or repair any defect in the building, structure, exterior walls,
roof, exterior windows and exterior doors of the Premises upon receipt of written notice from the Lessee
that such repairs are necessary.
5.02 By Lea5ee. The Lessee agrees at its own cost and expense to maintain the interior of the
Premises in good condition and repair, ordinary wear and tear excepted. All maintenance and repair work
undertaken by the Lessee shall be done in a workmanlike manner, leaving the Premises. free of liens for
labor and materials. In the event that a lien is filed against the Premises for work completed by a
contractor or subcontractor, the Lessee shall immediately use its best effort to remove such lien within
ten (10) days after the lien is placed on the property. In the event that alien remains on the property after
the expiration of ten days, the Lessee shall execute a bond for the sum of one hundred percent (100 %)
of the total lien amount, in standard forms for this purpose, guaranteeing that such lien shall be released
from the Lessor's property. Such bonds must be submitted to and approved by the Lessor in order for
the Lessee to be in compliance with this provision.
5.03 Alterations. After completion of the improvements, and during the term of this lease, the
Lessee may, after obtaining prior. written approval from the Lessor, at its own expense make such
alterations, repairs, and additions within the interior of the building on the Premises as may be permitted
by laws and regulations in force at the time, as long as such alternations, repairs, and additions do not
structurally weaken the building or render the same unsafe. The Lessee shall, at all times, hold the Lessor
harmless from the payment .for any work performed by the Lessee pursuant to the provisions of this
paragraph. The cost of any changes which may be structural in character and not occasioned by
alternations or additions made by the Lessee and which are ordered by a governmental authority after the
building or improvements provided for under this lease are completed, shall be borne by the Lessee and
shall increase the said annual rental.
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® ARTICLE 6
Insurance, Damage, and Condemnation
6.01 Lessee's Insurance. The Lessee agrees to provide and keep in force, throughout the term of
this Lease and any extensions thereof, commercial general liability insurance with an insurance company
licensed to do business in the State of Texas who has an AM Best Rating of A or higher with limits of
$1,000,000 per occurrence and $2,000,000 aggregate. The Lessee shall at all times during the term of
this Agreement and any extension thereof maintain marina operators legal liability insurance in minimum
limits of $1,000,000 per occurrence and $2,000,000 aggregate. In all liability policies as may be required
herein, the Lessee agrees to name the Lessor as an additional insured and to provide a notice of
cancellation on all insurance of at least sixty (60) days. The Lessee may maintain the insurance required
hereunder under a blanket policy only if such policy provides the protection for the Premises as required
in this paragraph, no aggregate policy for multiple premises shall be allowed, unless such aggregate
policy covers the restaurant and harbor master facilities located on the Bayland Park properties owned
by the Lessor and is approved by the City Manager at his sole discretion. All insurance policies of the
Lessee must be written on an occurrence basis. Additionally, the Lessee's commercial general liability
insurance shall include premises and operations endorsements as well as package liquor liability
endorsements, if applicable. All requirements of Texas law regarding the provision of Workers'
Compensation insurance and workers' injuries must also be procured and maintained by the Lessee
throughout the term of this lease and all extension thereof whether by a Workers' Compensation
Insurance policy approved by the Lessor or pursuant to the Lessee's non- subscriber status. Such policies
shall contain a waiver of subrogation in favor of the Lessor and all of the applicable above - referenced
requirements shall be required for such policy. Fidelity bonds in minimum amounts of $250,000 shall
be required to protect against loss from embezzlement and fraud or other misappropriations for all
employees handling funds of the Lessor. The Lessee shall furnish the Lessor copies of certificates
evidencing these policies prior to or simultaneously with the Lessor's issuance of the certificate of
occupan cy. 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 tern 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 carry liability insurance on the common areas.
6.03 Damage or Destruction by Casualty. If the Leased Premises shall be damaged by fire, an
unavoidable accident or other casualty, the Lessor shall cause the damage to be repaired. The Lessor
shall not be liable for any damage or destruction to the property on the Premises owned by the Lessee
under the terms hereof or belonging to third parties, or for the loss of any such property from the Premises
41 by theft or otherwise.
14
® 6.04 Lessee's a u urance. The Lessee will maintain primary and extended coverage
insurance on its leasehold improvements in sufficient amounts as determined by the Lessor at all times
during the term of this Lease and any extensions thereof.
•
6.05 Condemnation. If the whole of the Leased Premises shall be acquired or condemned by
expropriation or eminent domain for any new public or quasi - public use or purpose, then the term of this
lease shall end as of the date that title vests in such proceeding and all rentals shall be paid up to that date.
6.06 Partial Condemnation. If any part of the Premises shall be acquired or condemned as
aforesaid and if the partial taking or condemnation shall render the Premises in both the Lessee's and
Lessor's opinions unsuitable for the business of the Lessee, then the term of this lease shall end as of the
date that-title vests in such proceedings and rent shall be adjusted to the date of the termination. In the
event of a partial taking or condemnation that is not extensive enough to render the Premises in both the
Lessee's and the Lessor's opinions unsuitable for the business of the Lessee, then the term of this lease
shall end as of the date that title vests in such proceedings and rent shall be adjusted to the date of the
termination. In the event of a partial taking or condemnation that is not extensive enough to render the
Premises in both the Lessee's and the Lessor's opinions unsuitable for the business of the Lessee, then
Lessor shall promptly restore the Leased Premises to a condition comparable to its condition at the time
of such condemnation less the portion taken and, if the size of the Premises has been reduced by the
taking or condemnation, the rent shall be reduced proportionately.
6.07 Sh@ging Awgd. In the event of any condemnation, whether whole or partial, the Lessee shall
be entitled to receive any monies expressly apportioned by a court of competent jurisdiction in its final
judgment. If no amount is so apportioned, the Lessee shall be entitled to nothing under the terms of this
Lease.
6.08 Slip Rental Agreements. Slip rental agreements shall be in a standard form which shall be
preapproved by the City Manager. No change or modification to such form may be made unless
preapproved by the City Manager. The Lessee shall require in all such agreements liability insurance in
amounts acceptable to the City Manager of all persons who rent, lease or otherwise use the boat slips.
ARTICLE 7
Common Area Maintenance
7.01 Common Area Maintenance. The Lessor shall, at its sole, cost and expense, be responsible
for all maintenance and repair of the common areas of the development. Such maintenance and repair
shall be of a high level and shall be conducted and performed by the Lessor on a continuing basis.
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® ARTICLE 8
Mortgages and Estoppel Certificates
8.01 Lessee's Mortgages. The Lessee shall not have the right to mortgage and encumber its
leasehold estate, nor any of the items of personal property provided by or financed by the Lessor, but shall
have the right to mortgage and encumber personal property, fixtures, trade fixtures, special finish items
unique to the Harbor Master Facility's concept, equipment, furniture and merchandise located in or upon
the Premises, which has not been provided or financed by the Lessor. In such event, or events, the Lessor
hereby agrees for the benefit of such mortgagees or holders of indebtedness from time to time:
A.-Equipment Waivers. To sign any document waiving all rights of the Lessor to such
equipment or other items of personal property and providing that any such lender or lessor may
remove- such items from the Premises in the event that the Lessee defaults on its loan or lease
agreements.
B. Notices. That Lessor will give to any such mortgagee or holder of indebtedness
simultaneously with service on the Lessee a duplicate of any and all notices or demands given by
the Lessor to the Lessee from time to time. Such notices shall be given in the manner and be
subject to the provisions of Section 9.01 and 11.02 of this Lease;
C. 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 Rip-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 famish the Lessee, and any of the Lessee's
mortgagees, upon written request therefore, a statement wherein the City Manager shall, under oath,
acknowledge that as of the date of such statement the Lessee, to the best of the Lessor's knowledge, has
performed and observed all of the covenants and conditions herein stated to be performed and observed
16
by the Lessee, and that to the best of the Lessor's knowledge as of said date the leasehold estate hereby
created and granted to the Lessee is free of all defaults hereunder (or if defaults exist, specifying the
nature of the default); provided, however, the Lessor shall not be required to furnish the Lessee or any
such sublessee or occupant with such statement more than once during any calendar quarter. Nothing
contained herein or any statement subsequently issued hereby shall waive any of the Lessor's rights to
enforce any of the provisions of this. Lease against the Lessee.
Lessee:
ARTICLE 9
Lease Defaults
9.01 Defaults by Lessee. The Lessor shall have the right to declare the Lease in default if the
(a) Fails to pay any installment of rent or make any other payment of money due
hereunder within seventy-two (72) hours.after written notice of the failure shall have been given
to the Lessee, or
(b) Defaults in the performance of any other obligation imposed upon the Lessee
hereunder and does not cure the default within fifteen (15) days after written notice describing
the default in reasonable detail shall have been given the Lessee (or, if the Lessor in its sole
discretion, determines that the default cannot reasonably be cured within the fifteen (15) day
period, if the Lessee does not commence curative work within the fifteen (15) day period and
prosecute the work to completion with reasonable diligence), or
(c) Institutes proceedings, whether voluntary or otherwise, under the provisions of the
Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insolvency,
then the Lessor may immediately without any notice terminate this lease, or
(d) Makes any assignment, then the Lessor may immediately and without notice terminate
this lease or exercise any other rights or remedies available as a matter of law.
9.02 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
17
(ii) Each of the notices contains a reminder of the substance of this subpart
9.02(a), thereafter the Lessor shall no longer be obligated to give the Lessee notice of a
default consisting of the nonpayment of rent and the Lessor may immediately terminate
the lease.
(b) In all other cases with the exception of those cases hereinabove specified where the
lease is subject to immediate termination by the Lessor, the default must be cured within fifteen
(15) days from the receipt of the notice or, if the default is not reasonably susceptible of being
cured within the fifteen (15) day period, commence curative work within the fifteen (15) day
period and prosecute it to completion with diligence. The determinations regarding whether the
default is reasonably susceptible to being cured within the above- referenced time frame and
whether the Lessee is commencing curative work with diligence shall be made at the reasonable
discretion of the Lessor.
9.03 If any such default occurs and is not cured within the time allowed by paragraph 9.02, the
Lessee understands and agrees that the Lessee shall become immediately liable for all amounts due or
which would have become due under the term of the lease or any extension thereof. Furthermore, in the
event of such default, the Lessor, in addition to any other rights which the Lessor may have under law
or under the provisions of this Lease, shall have the following options, subject to the Lessee's rights under
paragraph 9.06, below:
(a) Immediately to re -enter and remove all persons and property from the Leased
Premises. Such property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of, the Lessee, all without service of notice or resort to legal process
and without being deemed guilty of trespass, or becoming liable for any loss or damage which
may be occasioned thereby. Such re- entering and removal of persons or property from the Leased
Premises shall not be deemed to preclude the Lessor from exercising any other options granted
by this lease.
(b) To proceed for past due installments, reserving its rights to proceed later for the
remaining installments and to exercise any other option granted by this lease.
(c) Immediately to cancel this lease and to proceed in any manner against the Lessee for
past due installments.
(d) To cancel this lease and re -enter the Leased Premises and to re -let the Premises in the
manner set forth below.
(e) Otherwise, the Lessor may avail itself of any rights under the laws of the State of
Texas to evict the Lessee and obtain occupancy of the Premises and to recover any past due rent
and damages until the Premises shall have been released, all as more fully provided in paragraph
9.04 hereafter.
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9.04 Should the Lessor elect to re- enter, under any provision of this lease, or should the Lessor
take possession pursuant to legal proceedings or pursuant to any notice provided for by law, the Lessor
shall have the right and the ability to make such alterations and repairs as the Lessor determines is
reasonably necessary in order to re-let the Premises and may re -let the Premises or any part thereof. This
re- letting shall be for such rental and on such terms as the Lessor may deem advisable, including a lease
on a monthly basis or for a term extending beyond the term of this lease. All payments received by the
Lessor from such re- letting for the unexpired term of this lease shall be applied: first, to the payment of
any costs and expenses of such reletting, including attorney's fees and the cost of such alterations and
repairs; second, to the payment of any indebtedness other than rent due from the Lessee to the Lessor;
third, to the payment of the present value, at a discount rate of eight percent (8 %), of the rent due and
unpaid hereunder. If such rentals received from the re- letting are insufficient to pay the amount owed
by the Lessee, then the deficiency shall be paid during that month by the Lessee hereunder, to the Lessor.
Such deficiency shall be calculated and paid monthly in the manner provided above. The Lessee may
request and shall be granted access to the Lessor's books and records in order to ascertain the status and
accuracy of its account with. the Lessor. Notwithstanding any other provisions hereof, in making the
repairs and alterations, re- letting the premises and exercising its other rights hereunder, the Lessor shall
mitigate and minimize the damages suffered by the Lessor and the amounts that shall be due by the
Lessee hereunder.
9.05 Failure to strictly and promptly enforce the conditions set forth above shall not operate as
a waiver of the Lessor's rights. The Lessor expressly reserves the right always to enforce prompt payment
of rent and to treat the failure to pay rent in accordance with this lease as a default, regardless of any
indulgences or extensions previously granted. The waiver by the Lessor or the Lessee of any breach of
this lease shall not be deemed a waiver of any subsequent breach of the same or any other term or
condition of this lease shall be deemed to have been waived by the Lessor or the unless such waiver is
in writing and signed by the Lessor or the Lessee.
9.06 Any and all defaults reasonably declared by the Lessor shall be final and binding upon the
Lessee. If the Lessee receives a default notice but in good faith denies that it is in default (in whole or
in part) the Lessee may prevent the Lessor from exercising the rights or remedies set forth in this Section
9 by taking the following steps:
(a) The Lessee shall remedy that part of the default as to which there is no dispute within
the time allowed, by paragraph 9.02.
(b) As to the disputed part of the default, the Lessee shall either:
(i) Remedy the alleged default within the time allowed by paragraph 9.02 with
full reservation of the Lessee's right to recover from the Lessor the amount paid and costs
incurred by the Lessee if it is ultimately determined that a default did not exist, or
(ii) Furnish the Lessor within the time allowed by paragraph 9.02 with security
approved by the Lessor as adequate in amount to cure the default if a default is ultimately
19
® determined to exist, provided that the Lessor may not withhold the approval unreasonably.
The security shall consist of cash, obligations of the United States (or any agency thereof),
of certificates of deposit issued by a national bank and shall be held by a national bank
approved by the Lessor as agent or custodian for the parties.
C�
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 77522
Fax: 420 -6586
(b) To the Lessee when received at Lessee's office:
Two Bayland Drive, L.C.
c/o RioStar Corporation
Attn: Roland D. Laurenzo
214 N. Nagle
Houston, Texas 77003
Fax: 228 -0135
as the case may be. Notices to a mortgagee or a trustee or sublessee shall in like manner be mailed to its
or their respective last known addresses. Any party may change the address for the giving of notices to
20
•
it by giving due notice of the new address to the other parties, provided that the new address must be at
a place in the United States where the mail and either mailgrams or telegrams or similar communications
are regularly received. Notice given by mail shall be deemed given three (3) days after the date of the
mailing of the same to the above - referenced address.
10.03 Eritire 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 Headines. 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 Cons. Wherever either the Lessee's or the Lessor's consent or approval is required or
desired, such consent or approval shall not be unreasonably withheld.
10.07 Rent on Termination. Upon any termination of this lease, other than under Article 9
hereof, all rent paid but not earned shall not be refunded.
10.08 Force Majeure. Neither the Lessor not the Lessee shall be deemed in violation of this lease
if it is prevented from performing any of the obligations hereunder by reasons of strikes, boycotts, labor
disputes, embargoes, shortage of material, acts of God, acts of public enemy, acts of superior
governmental authority, weather conditions, floods, riots, rebellion, sabotage, or any other circumstances
for which it is not responsible or which is not in its control, and the time for performance, except for
payment of monies due the Lessor by-the Lessee, shall be automatically extended by the period the party.
is prevented from performing its obligations hereunder.
10.09 Effective Date of L f ate. 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 Recording of Lease. The Lessor and the Lessee shall also execute a Memorandum of this
Lease to be recorded as a short form of this lease as a public record in the appropriate jurisdiction in
which the Premises are located, and to be held in the possession of the Lessee, until such time as all
contingencies contained herein have been satisfied. Any expenses of recordation of such Memorandum
shall be borne by the Lessee.
1 0.11 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
21
® on a dispute between the Lessor and the Lessee, the party against whom the judgment has been rendered
shall be responsible for payment of all court costs and the reasonable attorney's fees of the prevailing
party.
n
10.12 Texas-1a . The construction interpretation and performance of this Agreement shall be
governed by the laws of the State of Texas.
10.13 Venue. Both parties hereby irrevocably agree that any legal proceeding arising out of or
in connection with this Agreement shall only be brought in the District Courts of Harris County, Texas
or in the United States District Court for the Southern District of Texas, Houston, Harris County,
Division.
10.14 Liquidated Damages. Both the Lessee and the Lessor agree that time is of the essence in
the payment of all monies due pursuant to this lease and that the time allotted for each monthly payment
described herein is reasonable times for the payment of each, taking into consideration all conditions,
including but not limited to, the economic environment and conditions prevailing in this locality. The
Lessee and the Lessor understand and agree that a breach of this contract as to time of payment will cause
damage to the Lessor and further agree that such damage cannot be accurately measured and that
ascertainment will be difficult. Therefore, as part of the consideration for the awarding of this lease, the
parties agree that for each and every calendar day any payment due hereunder or any portion thereof
remains delinquent as set forth in the lease, the Lessor may charge and the Lessee shall pay as part of the
monthly lease amount owed the sum of one hundred dollars ($100) as minimum liquidated damages.
However, the foregoing agreement as to liquidated damages constitutes only an agreement by the Lessor
and the Lessee as to the minimum amount of damages which the Lessor will sustain in any event by
reason of the Lessee's failure to make payments within specified time periods. Should the Lessor suffer
damage over and above the minimum amount specified by reason of the Lessee's failure to timely pay
in strict accordance with the lease, the Lessor may recover such additional amount. The Lessor will have
the right to recover such amount from the Lessee; all such remedies shall be cumulative and the Lessor
shall not be required to elect any one nor deemed to have made an election by proceeding to enforce any
one remedy.
10.15 Litter and Pollutants. The Lessee hereby guarantees that no pollutant , effluent, liquid or
solid waste material, litter, trash or garbage issued from the Leased Premises is allowed to collect in the
waters or in the vicinity of the Premises.
10.16 Firr, Sy, tem. The Lessee shall be responsible for ensuring that all fire fighting systems
and equipment is regularly inspected and remains in the highest degree of readiness.
10.17 Consent, The Lessor by this Agreement does not give consent to litigation and the Lessor
hereby expressly. revokes any consent to litigation that it may have granted by the terms of this
Agreement, charter or applicable state law.
22
n
10. 18 Indemnity. The Lessee agrees to and shall indemnify, hold harmless and defend, the Lessor,
its officers, agents and employees, from and against any and all claims, losses, damages, causes of action,
suits and liability of every kind, including all expenses of litigation, court costs, and attorneys' fees for
injury to or death of any person, or for damage to any property, arising out of or in connection with the
work done by the Lessee under this Contract, where such injuries, death or damages are caused by the
joint negligence of the Lessor and any other person or entity. It is the expressed intention of the parties
hereto, both the Lessee and the Lessor, that the indemnity provided for in this paragraph is an indemnity
by the Lessee to indemnify, protect and defend the Lessor from the consequences of the Lessor's own
negligence, where that negligence is a concurring cause of the injury, death or damage. Furthermore, the
indemnity provided for in this paragraph shall have no application to any claim, loss, damage, cause of
action, suit and liability where the injury, death or damage results from the sole negligence of Lessor
unmixed with the fault of any other person or entity.
10.19 Guarantor. For the consideration herein expressed which is hereby acknowledged
sufficient and received, Ninfa's, Inc. {the "Guarantor's, 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 tern 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 $everabilitv_. All parties agree that should any provision of this Agreement be determined
to be invalid or unenforceable, such determination shall not affect any other tens of this Agreement,
which shall continue in full force and effect.
10.21 No Third Party Beneficiaries, This Agreement shall not bestow any rights upon any third
party, but rather, shall bind and benefit the Lessee and the Lessor only.
10.22 Authority to Enter Contract. Each party has the full power and authority to enter into and
perform this Agreement, and the person signing this Agreement on behalf of each party has been properly
authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby
represent that they have authorization to sign on behalf of their respective corporations.
10.23 Agreement Read. The parties acknowledge that they have read, understand and intend to
be bound by the 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
•
ATTEST:
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
4��.
ef,dNACIO RRAMIREZ, ., City Attorney
Two Bayland Drive, L.C.
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. Lauren zo, 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 he executed the same for the
purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of 1996.
j r RICHARD P. HOLGIN
Ivry Pubk s`71e of Texas
-31- Not Public in and for the tate of Texas
`'•., „ .:' 1h' Corta+ado.� Esp:res 10 -31.96 �
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 he executed the same for the purposes and
consideration therein expressed.
SUBSCRIBED AND SWORN before me this 24 day of J� Qty , 1996.
�,rn • 4r
RICHARD P. HOLGIN Notary Public in and for the tate of Texas
No:lry hwr4 Stale of Teas
rcmmissica Expires I0.3I.9S
0 cAL- 1h Mconlracts%harbormastcr
25
•
0
PREMISES IMPROVEMENTS
Ship's Store Equipment
:.... ::::'':.:nnrfifi. •J:: •i:•v:•i
? ii:: � }: ::: : :r :i is ii :}:'.:: {•i:. � ii::ii:::n`.} i:i:}ii �: �i$ ?i::;::::i: ii: i:' i } {:;: i:•T� � ?C:tii: ti'initi}C$i.'•:t ?. "riii:
1 lot
MICRO SYSTEM:
3
3
I
3
3
Micros 2700 WL w/ Memory System Units
Micros Integrated Roller Printers
Micros Magnetic Card Reader
Micros Cash Drawers
Micros Turret Displays, Programming Installation &
Training
2
True GDM72. 72" 3 -Door Display Cooler, 12 Bottle Shelves
1
True GDM49F, 54" 2 -Door Display Freezer
4 sets
4'x 21" x 3 Shelves ISS Shelving
3
3'x 21" Dunnage Racks New Age
1
True GDIM -50, 54" 2 -Door Bag Ice Display Freezer
1
Masterbuilt GT -60, 2 -Door Display Freezer
2
True GDM -49, 54" 2 -Door Display Cooler, w/ 16 Bottle
Shelves - Retail Shelving (lot)
RETAIL SHELVING (LOT):
2
6' Gondolas 48" High 15" Base w/ (2) 13" Upper Shelves
2
8' Gondolas 48" High 16" Base w/ (2) 13" Upper Shelves
2
3' Wall Shelf 48" High 15" Base w/ (2) 13" Upper Shelves
2
4' Wall Shelf 48" High 16" Base w/ (2) 13" Upper Shelves
I
6' Wall Shelf 48" High 15" Base w/ (2) 13" Upper Shelves
EXHIBIT "A"
THE STATE OF TEXAS)
COUNTY OF HARRIS)
FIELD NOTES of a 0.9010 of an acre tract of land situated is the
William Scott Upper League, Abstract No. 66, Harris County, Texas,
and being out of and ,a part of a 45.3774 acre tract of land called
Tract 2 in a deed from B.F.B., Inc., to City of Baytown, dated
November 20. 1979, and recorded at County Clerk's File Nu =:._r G
388038 of-the Official Public Records of Real Property of B2-ris
County, Texas. This 0.9010 of an acre tract of land is more
particularly described by metes and bounds as follows, to -wit:
NOTE: ALL BEARINGS ARE LAMBERT GRID BEARINGS AND ALL COORDL':AATES
REFER TO THE STATE PLANE COORDINATE SYSTEM, SOUTH.CENTRAL ZONE, AS
DEFINED BY ARTICLE 5300A OF THE REVISED CIVIL STATUTES OF THE STATE
OF TEXAS, 1927 DATUM. ALL DISTANCES ARE ACTUAL DISTANCES..
REFERENCE IS MADE TO PLAT OF EVEN DATE ACCOMPANYING THIS METES AND
BOUNDS DESCRIPTION.
COMMENCING at a 2 inch galvanized iron pipe found for the nest
corner of a 12.34 acre tract of land conveyed to the City of
Baytown by William Marsh Rice University by deed dated Mare 31,
1995, and recorded at County Clerk's File Number R 354555 of the
official Public Records of Real Property of Harris County, Texas
and the North corner of a 10.00 acre tract of land called Tract 1
in a deed from Frank N. Angel to Le Roy E. Pearce, dated August 1,
1989, and recorded at County Clerk's File .Number M 310862 of the
Official Public Records of Real Property of Harris County, Texas.
This corner is in the South right of way of State Highway No. 146,
right width varies, and has a State Plane Coordinate Value of Y =
705,022.15 and X = 3,269,733.81.
THENCE South 47 deg 49 min 20 sec East with the Southwest line of
said 12.34 acre tract of land and the Northeast line of std .10
acre tract of land, at .489.45 feet found a 2 inch galvanized ron
pipe in line for the East corner of said 10.00 acre tract an-7--the
North corner of said 45.3774 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 14:3.43
feet to a point.
THENCE South 42 deg 10 min 40 sec West a distance of 180.96 fee= to
a 1/2 inch iron rod set for the Northwest corner of this trz= of
land. This corner has a State Plane Coordinate Value of
Y = 703,872-7.1 and X = 3,'270,666,92.
THENCE South 66 deg 00 min 00 sec East with the North line of this
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 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
• 4
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,
September, A. D). 95.
REG. PROFESSIONAL LAND SURVEYOR
NO. 1610
453OLEAS.FDN
..............: .
ROBERT L. HALL, JR.
9:9 160
ti�o`
Texas, this the 5th., day of
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® $206,623.67 PROMISSORY NOTE
STATE OF TEXAS §
COUNTY OF HARRIS §
December 31, 2001
FOR VALUE RECEIVED, the undersigned Ninfa's Holdings, L.P. (Maker) promises to pay to
the order of City of Baytown (Holder) the sum of TWO HUNDRED SIX THOUSAND SIX
HUNDRED TWENTY -THREE 67/100 DOLLARS ($206,623.67) in the currency of the United
States of America together with interest as set forth below.
Interest Rate
1. Interest shall accrue on the unpaid balance of the principal amount at the rate of 7.64
percent per annum prior to maturity and at the rate of 12 percent per annum after
maturity. Interest shall by calculated based upon a 365 -day year.
Payment
2. The principal amount, plus accrued interest to the date of payment, shall be due and
payable in 60 monthly installments of $4,154.07 each, beginning on the 15th day of
February 2002, and continuing on the 15th day of each month. The monthly payments
provided for herein shall first be applied to the payment of interest accrued and the
balance of which payment shall be applied to the payment of principal. Payments shall
be made by Maker to Holder at the following address:
2401 Market
P.O. Box 424
Baytown, Texas 77522 -0424
Prepayment
3. Maker shall have the right to prepay the principal in whole or in part at any time, and
interest shall immediately cease to accrue as of the date of payment on any amount of
principal that is prepaid. Prepayments shall be applied as a credit against the last
maturing installment or installments of principal due hereunder and shall not operate to
defer or otherwise postpone the regular obligatory installments of principal payable
hereunder.
Default
0 4. Failure to pay any installment of this Note, either principal or interest, as and when the
same is or becomes due and payable hereunder, or in the event of default of maker in any
EXHIBIT B
of the terms, provisions or conditions of any instrument executed or to be executed by
Maker as security for payment hereof, and such default shall continue for a period of ten
days after written notice to Maker of such default, shall, at the election of Holder hereof,
mature this Note so that the entire unpaid balance of principal and any unpaid interest is
immediately due and payable.
Waivers
5. Maker, every surety, and every endorser of this Note severally waive demand,
presentment, notice of non - payment, protest, notice of protest, notice of intent to
accelerate, notice of the exercise of option to accelerate, filing of suit, and diligence in
collecting this Note or enforcing any security herefor, and consents and agrees to all
renewals, extensions, and partial payments both before and after maturity without
prejudice to Holder.
Attorneys' Fees
6. If this Note is not paid at maturity and is placed in the hands of an attorney for collection,
or if it is collected through a court of bankruptcy, probate, or other court after maturity,
then Holder shall be entitled to reasonable attorneys' fees for collection.
Usury Exclusion
7. It is the intention of the Maker and Holder to conform strictly to the usury laws in force
in the State of Texas and the United States of America.. It is therefore agreed that (i) in
the event that the maturity hereof-is accelerated by reason of an election by Holder, or if
the same is prepaid prior to maturity, all unearned interest shall be cancelled
automatically, or if theretofore paid, shall be either refunded to the Maker or credited on
the unpaid principal amount of this Note, whichever remedy is chosen by Holder, (ii) the
aggregate of all interest and other charges constituting interest under applicable law and
contracted for, chargeable or receivable under this Note shall never exceed the maximum
amount of interest nor produce a rate in excess of the maximum rate of interest that
Holder may charge Maker under applicable law and in regard to which the Maker may
not successfully assert the claim or defense of usury, and (iii) if any excess interest is
provided for, it shall be deemed a mistake and the same shall either be refunded to Maker
or credited on the unpaid principal amount hereof and the Note shall be automatically
deemed reformed so as to permit only the collection of the maximum non - usurious rate
and amount of interest allowed by applicable law. All sums paid or agreed to be paid to
the Holder hereof for the use, forbearance or detention of the indebtedness evidenced
hereby shall, to the full extent permitted by applicable law, be amortized, prorated,
allocated and spread through the full term of this Note.
THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
® PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
C
• THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Signed this the / day of _ s �.� n,�,_ , 2002.
MAKER:
NINFA'S HOLDINGS, L.P., a Texas limited
partnership
BY: NINFA'S HOLDINGS MANAGEMENT,
L.L.C, a Texas limited liability company,
General Partner ofNinfa's Holdings, L.P.
�F?1' ka�
By: er
C14 ell.
Printed Name
Title
C J4
This lease is signed on this .e ? day of March, 1996, between The City of Baytown,
Texas, a municipal corporation located in Harris and Chambers Counties, ( "Lessor ") and Two
Bayland Drive, L.C., having its principal place of business at 214 N. Nagle, Houston, Texas 77003
( "Lessee "). The Lessor and Lessee agree as follows:
DEFINITIONS
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 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.
e ssgr's Prqject 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.
EMU A
iArchitectural and Engineering Fees. Fees paid solely for the preparation of architectural and
engineering plans for Lessor's Project Improvements. Such fees shall not include project
management fees, which include those fees paid for the professional services of a master plan
developer or the professional services of others that are not essential, as reasonably determined by
the Lessor, to the construction of the facility to be located on the Premises.
Lease Commencement Date: The earlier of either the date the premises of the restaurant
facility, which is leased to One Bayland Drive, L.C., and is nearby to the premises herein opens for
business or forty-five (45) days after the Lessor issues the certificate of occupancy for the Restaurant
facility.
Rent Commencement Date: Exactly one month after the Lease Commencement Date.
Interim Term of Lease: The Interim Term of this lease shall commence on the date both
parties have executed this lease and end with the Lease Commencement Date. References to "term"
herein shall, unless stated otherwise, include the Basic and Interim Term and any extensions thereof.
The Harbor Master Facility shall include a ships store, boating
slips, bathhouse, laundromat, and fuel and boat service dock, which will be staffed, operated, and
managed by the Lessee in compliance this Agreement.
Operating Costs: The operating costs shall be comprised of all direct costs associated
with the operation of the slip rental and the bath house portion -of the Harbor Master Facility.
ARTICLE I
Premises
1.01 The Bayland Harbor Development. The Lessor owns the tract of land in Harris County,
Texas, more particularly described in Exhibit "B" (the "Premises ") which is a part of the Bayland
Development. The development shall be in conformity with the plan attached hereto as Exhibit "C"
(the "Plan").
1.02 Premises. The Lessor hereby rents and leases unto the Lessee, and the Lessee hereby
takes and hires from the Lessor, a portion of the land of the Bayland Development described as
follows:
(a) The "Premises," which consists of:
(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
2
r
the Premises parcel consisting 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 appertaining to the Bayland
Development on a non - exclusive basis in common with the general public and other lessees
of the Bayland Development and their respective agents, employees, customers and invitees.
Such non - exclusive right to use the parking facilities shall be subject to all of the terms and
conditions imposed at any time by the Lessor or the Lessor's developer.
ARTICLE 2
Term and Rental
2.01 Term. The Basic Term of this lease shall commence on the Lease Commencement Date,
as herein defined, and continue thereafter until five (5) years have elapsed. Immediately after the
Lease Commencement Date, the Lessor and the Lessee may enter into an agreement in recordable
form setting forth such date.
2.02 Riga of Extension. The Lessee is granted the right to extend the Basic Term for an
additional period of five (5) years. If the Lessee elects to extend the Basic Term for the first
additional period of five (5) years, the Lessee may also elect to extend the Basic Term for a second
additional period of five (5) years immediately following the first additional period. If the Lessee
elects to extend the Basic Term for the second additional period of five (5) years, the Lessee may
also elect to extend the Basic Term for a third additional period of five (5) years immediately
following the second additional period. If the Lessee elects to extend the Basic Term for the third
additional period of five (5) years, the Lessee may also elect to extend the Basic Term for a fourth
additional period of five (5) years immediately following the third additional period. If the Lessee
elects to extend the Basic Term for the fourth additional period of five (5) years, the Lessee may also
elect to extend the Basic Term for a fifth additional period of five (5) years immediately following
the fourth additional period. If the Lessee elects to extend the Basic Term for the fifth additional
period of five (5) years, the Lessee may also elect to extend the Basic Term for a sixth additional
period of five (5) years immediately following the fifth additional period. If the Lessee elects to
extend the Basic Term for the sixth additional period of five (5) years, the Lessee may also elect to
extend the Basic Term for a seventh additional period of five (5) years immediately following the
sixth additional period. In each case, the option may be exercised by giving the Lessor written notice
thereof at least one hundred eighty (180) days before the expiration of the applicable term. All of the
3
iterms and conditions hereof shall apply during the additional term(s), unless otherwise modified in
writing by the parties hereto.
2.03 RemomkofLeuee's Propea. Upon expiration of this Lease, the Lessee shall have the
right to remove from the premises any and all furniture, fixtures, trade fixtures, equipment and
special finish items specifically identified as not having been paid for by the Lessor. All alterations,
modifications, and/or repairs to the Premises must be approved in writing by the City Manager prior
to such alteration, modification and repair being performed, and the same shall become the property
of the Lessor upon installation and shall not be subject to removal as provided by this paragraph.
Any and all indentations and differences in the conditions of the walls ceiling and floor surfaces shall
be repaired at the sole cost and expense of the Lessee, for the Lessee hereby understands and agrees
that the Lessee shall be obligated to repair, restore, renovate or redecorate the leased premises by
reason thereof to the condition of the premises when the Lessor issued the certificate of occupancy,
normal wear and tear as determined at the reasonable discretion of the City Manager, being excepted.
The Lessee is also obligated to leave the Leased Premises in a safe condition, to cap off any wiring
or plumbing to which the assets or property so removed were attached and to repair damage, if any,
to, exterior walls and exterior roofing caused by the Lessee in the removal of such assets and
property.
2.04 No Rent for or Operation during Interim Term. During the Interim Term and for exactly
one (1) month after the Lease Commencement Date, the Lessee shall not be obligated for any rental,
or other payments due under this lease. However, the Lessee understands and agrees that the debt
service. payment for the first month will be capitalized and included in calculating the rental
payments herein. Furthermore, the Lessee understands and agrees that the boat slips shall not be
rented for use by patrons until the Lessee commences the business of the entire Harbor Master
Facility unless otherwise pre- approved in writing by the City Manager; provided, however, nothing
herein shall prohibit the Lessee from leasing the boat slips so long as the commencement date of
such leases coincides with the Commencement Date of the Basic Term of this lease.
2.05 Base Rent for Basic Term. Starting exactly one (1) month after the Lease
Commencement Date and during the Basic Term and each extension thereof, the Lessee shall pay
to the Lessor the following minimum annual rent payable in advance in equal monthly installments.
(a) An "Annual Minimum Rental" calculated 'in accordance with
Section 2.05(b) of this Lease, per Lease Year from and after the Rent
Commencement Date, it being understood that except as otherwise herein
provided, the use and occupancy of the premises shall be rent -free during the
Interim Term and for the first month after the Lease Commencement Date.
(b) The "Annual Rental" beginning on the Rent Commencement Date
shall be the sum of the cost of Premises Improvements as more fully
4
•
described in Exhibit "A" to this Lease, plus all interest accrued on the cost of
Premises Improvements, including, but not limited to; the interest which will accrue
during the Interim Term, and the first month of the Lease, amortized over a period
of one hundred seventy -nine (179) months, in equal monthly installments of principal
and interest, at an annual interest rate between seven and one - quarter percent (7.25 %)
and eight percent (8.00 %), plus the following:
The cost of the Premises Improvements used in the calculation of the Annual
Rental shall at no time exceed $300,000.
For and in consideration of the Lessor's entering into this Lease and performing
services appurtenant thereto, the Lessee and the Guarantor understand and agree that
the Lessee and the Guarantor are obligated, jointly and severally, to pay to the Lessor
the following Termination/Cancellation Fee should the lease expire or be terminated
by either party prior to the expiration of ten (10) years after the Lease
Commencement Date, which amount shall be immediately due and owing upon
expiration of the initial term or termination hereof, whichever is earlier:
5
0
•
Year of
Termination/
Termination. or_._ '...:.Cancellation
_
Ex p iratio n of
Fee
'' I ease;:::';:::!:?;;;:';:"
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 (1) year and eleven (11)
months after the Lease Commencement Date, the Lessee shall pay a
Termination/Cancellation Fee of $138,222.50 to the Lessor. The Lessee and the
Lessor hereby irrevocably agree that should the Lessee or Lessor fail to 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 ination/Cancellation
Fees are reasonable in light of (i) the anticipated or actual harm caused should the
Lessee fail to fully perform its obligations for a period of ten (10) years after the
Lease Commencement Date, (ii) the difficulties of proof of loss, and (iii) the
inconvenience or non - feasibility of otherwise obtaining an adequate remedy. The
Lessee acknowledges that the above- referenced amounts shall be in addition to any
other remedy to which the Lessor may show itself entitled in law or in equity.
0
r�
U
If the Termination/Cancellation Fee is not paid as and when due and is placed in the
hands of an attorney for collection or is collected through a bankruptcy or other court,
the undersigned promises to pay fifteen percent (15 %) additional on the amount due
and owing at the time of expiration or termination. It is expressly acknowledged and
agreed by all parties hereto that this provision concerning the amounts to be paid at
the expiration or termination of this lease prior to the expiration of ten (10) years
from the Lease Commencement Date shall survive the expiration of the remainder
of this Agreement.
First Option Term. During the first option period, the annual rental shall be the same
as during the second year of the initial term plus $1,835plus five percent (5 %) of the
gross monthly slip rental revenues, if and only if the net profit, which is determined
by subtracting the monthly Operating Costs as defined hereinabove from the monthly
gross slip rental revenues received by the Lessee, equals or exceeds five percent (5 %)
of the gross slip rental revenue for the applicable month.
Second Option Term. During the second option period, the annual rental shall be the
sum of the cost of Premises Improvements, plus all interest accrued on the cost of
Premises Improvements, including, but not limited to, the interest which will accrue
during the Interim Term, and the first month of the Lease, amortized over a period
of one hundred seventy -nine (179) months, in equal monthly installments of principal
and interest, at an annual interest rate between seven and one - quarter percent (7.25 %)
and eight percent (8.00 %), plus $6,000 per year, plus five percent (5 %) of the gross
monthly slip rental revenues, if and only if the net profit, which' is determined by
subtracting the monthly Operating Costs as defined hereinabove from the monthly
gross slip rental revenues received by the Lessee, equals or exceeds five percent (5 %)
of the gross slip rental revenue for the applicable month.
During the first option term as well as during the second option term and any extensions
thereof, the Lessee shall along with its payment submit to the Lessor a financial statement
showing the basis for the payment and an affidavit from an officer of the Lessee verifying
that all of the information on the submitted report is true and correct.
(c) During each option term after the second extension of this lease, the Lessee
shall pay to the Lessor, as all.rent due and owing, four percent (4 %) of the Gross Sales
(defined below) made by the Lessee in each month of the applicable option term, plus
$6,000 per year, plus five percent (5 %) of the gross monthly slip rental revenues.
Payments shall be made on the twentieth (20th) day of each month for gross sales realized
for the previous month. The term "Gross Sales," as used herein, means the gross sales
price of all merchandise, goods, fuel, property and services sold at or from the Premises,
7
• exclusive of any and all slip rental revenues (whether for cash or otherwise) by the Lessee.
No promotional material given away by the Lessee shall be included in Gross Sales.
Taxes on sales and liquor as well as other similar taxes and discounts received by the
Lessee on credit cards are not part of Gross Sales. The sales price of merchandise that is
returned by customers during a period of time shall be deducted from Gross Sales for that
period of time to the extent included in the computation of Gross Sales when the
merchandise is sold. On or before the sixtieth (60th) day after the end of each lease year,
the Lessee shall .furnish to the Lessor a statement certified by an officer of the Lessee of
the Gross Sales during such year (the "Annual Statement') and if, for any reason, the sales
reported after the end of the year are more or less than the sales reported each month
during the year, then the Lessee will either pay any deficiency or receive an offset from
percentage rent the following month. The Lessee shall keep and make available at the
premises accurate records of Gross Sales for each year and partial year. These records
shall be open for inspection by the Lessor, or its duly authorized representatives at all
reasonable times. The Lessee shall not be required to retain any records for any year for
more than five (5) years after the end of that year, but shall not dispose of any such
records before that time. The failure to so preserve the records or to provide them to the
Lessor upon request shall because for termination of this Agreement at the election of the
Lessor.. The Lessor shall have the right at any time to audit any Annual Statement and all
of the books and records supporting any Annual Statement. The Lessee shall make all of
these records readily available for the examination. If any audit by the Lessor shows an
understatement by more than five percent (5 %) of Gross Sales in the Annual Statement,
then the cost of the audit shall be paid by the Lessee. If the audit shows the rent in fact
due exceeds the amount of the rent paid by the Lessee, then the Lessee shall pay the
Lessor the amount of the deficiency within ten (10) days written notice of such deficiency.
2.06. Gross Lease. Except as otherwise provided for elsewhere in this lease, Lessee's sole
monetary responsibility shall be the timely payment of rent as provided for in this Article 2 of the Lease.
Al I payments required herein to be paid by the Lessee shall be due on or before the fifth (5th) day of each.
month. If payment is. not received at the appointed time, Lessee will be obligated to pay interest on
delinquent payment in the amount of one percent (1 %) per month.
2.07 No Partnership. Nothing herein contained shall be construed or held to make the Lessor and
the Lessee partners in the conduct of any business. The relationship between the parties hereto is and
shall at all time remain that of the Lessor and the Lessee.
2.08 Right to Inspect Premises. 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 Emergency Management. 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 ConsWjction of Additional t Slipi The Lessor reserves the right to construct additional
boat slips at any time in which the Lessor, in its sole discretion, deems it advisable to do so. Such
additional slips shall become part of the Premises as herein defined; and the Lessor shall be entitled to
additional compensation due to such addition. The amount of such compensation shall be determined
at the completion of the construction of the additional slips by the parties. Both the Lessor and the Lessee
understand and agree that they will negotiate such amount in good faith and that such amount shall not
be less than the amount which the Lessor would receive based on the formula specified in Section 2.05
(b) or (c), whichever is greater.
2.11 Boat Slips for Lessor,'5 Emuncy Vessels. The Lessor reserves the right to use at
no cost or expense the number of boat slips necessary as determined at the sole discretion of the Lessor
to accommodate its emergency vessels. As an alternative to the use of such slips, the Lessor may, again
at its sole option, build slips for such purposes on the Premises or attached thereto or to any improvement
thereon, including, but not limited to the boat slips and walkways built at the time of this lease or which
may hereinafter be constructed. The election of any one option expounded above shall not constitute a
waiver for the Lessor to take advantage,of the other option at a later date.
ARTICLE 3
Use and Occupancy
3.01 Pu=se. 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;
(c) to implement a marketing program geared to attract the general boating public to the ships
store and marina;
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(f)
to develop policies and procedures, with approval of the City Manager, governing
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;
(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;
(m)
to notify the City Manager without delay of any maintenance problems or equipment
failures that require action -by the Lessor;
(n)
to develop and implement a system for the satisfactory disposition of boat -owners'
complaints and grievances;
(o)
to manage and handle all complaints regarding the Harbor Master Facility, its operations
and its use and to routinely apprise the City Manager of such complaints; and
(p)
to install and operate a storm and emergency warning system that conforms to standard
marina practices.
3.03 Maintenance and Utility Responsibilities, The Lessee will perform all janitorial and light
maintenance functions at the Harbor Master Facility, which shall include, but not be limited to routine
maintenance of docks, fueling station and ships store, and all maintenance pertaining to utility and cable
connections at each boat slip. At the ships store, the Lessee shall maintain at all times an adequate
inventory of goods. The Lessee shall be responsible for all utility costs associated with the Harbor Master
Facility.
3.04 w. In conducting its business on the Premises, the Lessee agrees to
conform to all applicable state, federal and local laws, ordinances, regulations and licensing requirements.
The Lessee shall have the right to contest in.good faith and by appropriate means any such law, regulation
or licensing requirement.
3.05 Lessor's Covenant of Title and Quiet Enjoyment . The Lessor covenants and warrants that
Lessor has the full right and lawful authority to enter into this lease for the. full term hereof and that
Lessor has good, valid and marketable title to the Premises.
3.06 Successors and Assigns. The covenants and agreements herein contained shall run with the
Bayland Development and the Premises and shall be binding upon and inure to the benefit of the parties
and their respective heirs, legal representatives, successors and assigns.
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3.07 Park. The Plan shows the Premises and the rest of the Bayland Development. The
Lessor agrees and warrants that the Lessee and its agents, employees, customers, and invitees shall have
the right (together with the other tenants of the Bayland Development and their respective employees,
invitees and customers and the general public) to use all of the parking areas and other common areas
shown on the Plan for vehicle parking purposes only. The Lessee understands and agrees that throughout
the term of this lease, and any option terms hereof, the 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 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 (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 shall to the satisfaction of the Lessor
keep the Premises adequately stocked with merchandise and with sufficient sales personnel to care for
the patronage, and to conduct said business in accordance with sound business practice.
In the event of a breach by the Lessee of any of the conditions contained in this section, the Lessor
shall have, in addition to any and all remedies at law or in equity, the right at its sole option to collect not
only the minimum monthly rent, which shall be deemed to be the largest monthly rental paid by the
Lessee prior to the date of the breach, but additional rent at the rate of one - thirtieth (1 /30th) of such
minimum monthly rent for each and every calendar day that the Lessee fails to conduct its business as
herein provided.
ARTICLE 4
Improvements
4.01 Improvements. The Lessor shall proceed to install the Lessor's Project Improvements which
are shown on the schedule attached hereto as Exhibit "A," in a reasonably expedient manner in
conformity with such specifications and criteria as the Lessee may select so long as the same are not in
derogation of the Plan or any other specification and/or criteria established by the Lessor.
4.02 Architectural and Engineering Services. The Lessor shall hire an experienced architect.
Lessor shall have the right, in its sole discretion, to hire and retain an engineering firm to provide such
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services. Within five (5) days after the date of this Agreement, architectural and engineering work on
the design of the Premises shall begin. All architectural and engineering shall be completed and ready
for permitting ninety (90) days after such work has begun. The Lessor and the Lessee agree to cooperate
in providing standards, specifications and guidance to the architect and engineer regarding. the design
needs of the Harbor Master Facility.
4.03 Commencement of Construction. No later than ninety (90) days after the completion of
architectural and engineering drawings including any revisions thereof, the Lessor shall commence
construction and thereafter proceed without undue delays to complete construction and authorize
occupancy of the premises by the Lessee.
4.04 Warranty Claims. The Lessor shall assign to the Lessee all warranty, guarantee and similar
rights that the Lessor may have with respect to: (a) the Lessor's. Capital Improvements to the extent that
they relate to parts of the premises that the Lessee is obligated to maintain hereunder, and (b) the Lessee's
Improvements constructed or installed by the Lessors 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 Prop„rM. 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 Lessors Property. 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 5i=. 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 . 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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•
4.09 Lessor to Maii1tain Fuel Facilities and Lift Station, The Lessor will maintain the fuel
facilities located on the premises and will provide a pump for sewage.
4.10 Lessor to Realign the Qck System The Lessor warrants that it will realign the dock system
once a year or as otherwise may be required as determined at the sole discretion of the City Manager.
ARTICLE 5
Maintenance, Repairs and Alterations
5.01 By Lessor. The Lessor, at its sole cost and expense, shall maintain and repair the foundation,
the building structure, exterior walls, roof, exterior windows, exterior doors and exterior mounted HVAC
units on the roof of the Premises. The Lessor shall also maintain, at its sole cost and expense,. the
grounds and the landscaping materials adjacent to the Harbor Master Facilities and throughout the
Bayland Development, including the daily expenses associated with cleaning and maintenance of the
parking lot as well as maintenance of parking lot lighting. At all times during the term of this Lease, the
Lessor shall make reasonable efforts to fix or repair any defect in the building, structure, exterior walls,
roof, exterior windows and exterior doors of the Premises upon receipt of written notice from the Lessee
that such repairs are necessary.
5.02 By Lessee. The Lessee agrees at its own cost and expense to maintain the interior of the
Premises in good condition and repair, ordinary wear and tear excepted. All maintenance and repair work
undertaken by the Lessee shall be done in a workmanlike manner, leaving the Premises- free of liens for
labor and materials. In the event that a lien is filed against the Premises for work completed by a
contractor or subcontractor, the Lessee shall immediately use its best effort to remove such lien within
ten (10) days after the lien is placed on the property. In the event that 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, 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.
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40
ARTICLE 6
Insurance, Damage, and Condemnation
6.01 Lessee's Insurance. The Lessee agrees to provide and keep in force, throughout the term of
this Lease and any extensions thereof, commercial general liability insurance with an insurance company
licensed to do business in the State of Texas who has an AM Best Rating of A or higher with limits of
$1,000,000 per occurrence and $2,000,000 aggregate. The Lessee shall at all times during the term of
this Agreement and any extension thereof maintain marina operators legal liability insurance in minimum
limits of $1,000,000 per occurrence and $2,000,000 aggregate. In all liability policies as may be required
herein, the Lessee agrees to name the Lessor as an additional insured and to provide a notice of
cancellation on all insurance of at least sixty (60) days. The Lessee may maintain the insurance required
hereunder under a blanket policy only if such policy provides the protection for the Premises as required
in this paragraph, no aggregate policy for multiple premises shall be allowed, unless such aggregate
policy covers the restaurant and harbor master facilities located on the Bayland Park properties owned
by the Lessor and is approved by the City-Manager at his sole discretion. All insurance policies of the
Lessee must be written on an occurrence basis. Additionally, the Lessee's commercial general liability
insurance shall include premises and operations endorsements as well as package liquor liability
endorsements, if applicable. All requirements of Texas law regarding the provision of Workers'
Compensation insurance and workers' injuries must also be procured and maintained by the Lessee
throughout the term of this lease and all extension thereof whether by a Workers' Compensation
Insurance policy approved by the Lessor or pursuant to the Lessee's non - subscriber status. Such policies
shall contain a waiver of subrogation in favor of the Lessor and all of the applicable above - referenced
requirements shall be required for such policy. Fidelity bonds in minimum amounts of $250,000 shall
be required to protect against loss from embezzlement and fraud or other misappropriations for all
employees handling- funds of the Lessor. The Lessee shall furnish the Lessor copies of certificates
evidencing these policies prior to or simultaneously with the Lessor's issuance of the certificate of
occupancy. All insurance policies provided by the Lessor as required herein will be secondary policies
and will be subordinate to the Lessee's insurance policies as required herein.
6.02 Fire Extended and Liability Coverage. The Lessor agrees that at all time during the term it
will keep the entire Premises continuously insured against the loss or damage by fire and all of the risks
covered by a standard extended coverage endorsement in amounts not less than the full replacement value
thereof. The Lessor agrees to. deposit a copy of all insurance policies or certificates showing such
insurance in force with the Lessee during the term of this lease upon request. The policy or cefficates
shall also include a provision for thirty (30) days written notice to the Lessee in event of any pending
change in or cancellation of the insurance. The Lessor will carry liability insurance on the common areas.
6.03 Damage or Destruction by Casualty. If the Leased Premises shall be damaged by fire, an
unavoidable accident or other casualty, the Lessor shall cause the damage to be repaired. The Lessor
shall not be liable for any damage or destruction to the property on the Premises owned by the Lessee
under the terms hereof or belonging to third parties, or for the loss of any such property from the Premises
by theft or otherwise.
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6.04 Lessee's Casual 1y Insurance. The Lessee will maintain primary and extended coverage
insurance on its leasehold improvements in sufficient amounts as determined by the Lessor at all times
during the term of this Lease and any extensions thereof.
6.05 Condemnation. If the whole of the Leased Premises shall be acquired or condemned by
expropriation or eminent domain for any new public or quasi - public use or purpose, then the term of this
lease shall end as of the date that title vests in such proceeding and all rentals shall be paid up to that date.
6.06 Partial Condemnation. If any part of the Premises shall be acquired or condemned as
aforesaid and if the partial taking or condemnation shall render the Premises in both the Lessee's and
Lessor's opinions unsuitable for the business of the Lessee, then the term of this lease shall end as of the
date that.title vests in such proceedings and rent shall be adjusted to the date of the termination. In the
event of a partial taking or condemnation that is not extensive enough to render the Premises in both the
Lessee's and the Lessor's opinions unsuitable for the business of the Lessee, then the term of this lease
shall end as of the date that title vests in such proceedings and rent shall be adjusted to the date of the
termination. In the event of a partial taking or condemnation that is not extensive enough to render the
Premises in both the Lessee's and the Lessor's opinions unsuitable for the business of the Lessee, then
Lessor shall promptly restore the Leased Premises to a condition comparable to its condition at the time
of such condemnation less the portion taken and, if the size of the Premises has been reduced by the
taking or condemnation, the rent shall be reduced proportionately.
6.07 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 Agreernel3ts. 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 A&a 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.
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® ARTICLE 8
Mortgages and Estoppel Certificates
8.01 Lessee's Mortgages. The Lessee shall not have the right to mortgage and encumber its
leasehold estate, nor any of the items of personal property, provided- by or financed by the Lessor, but shall
have the right to mortgage and encumber personal property, fixtures, trade fixtures, special finish items
unique to the Harbor Master Facility's concept, equipment, furniture and merchandise located in or upon
the Premises, which has not been provided or financed by the Lessor. In such event, or events, the Lessor
hereby agrees for the benefit of such mortgagees or holders of indebtedness from time to time:
A. Equipment Waivers. To sign any document waiving all rights of the Lessor to such
equipment or other items of personal property and providing that any such lender or lessor may
remove: such items from the Premises in the event that the Lessee defaults on its loan or lease
agreements.
B. Notices. That Lessor will give to any such mortgagee or holder of indebtedness
simultaneously with service on the Lessee a duplicate of any and all notices or demands given by
the Lessor to the Lessee from time to time. Such notices shall be given in the manner and be
subject to the provisions of Section 9.01 and 11.02 of this Lease;
C. 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 Right to Sell or Mortgage. The Lessor - reserves the right to sell, assign, transfer or
convey its interest in -this Lease and the premises without prior consent of the Lessee, and the Lessor shall
further have the right to encumber and mortgage the premises and assign rentals payable by the Lessee
to the Lessor to any mortgagee or other secured party who obtains an interest in the land and buildings
of which the premises are a part or upon any buildings hereafter placed.upon land of which premises form
a part; provided, however, that no such sale, assignment, transfer, conveyance or mortgage shall in any
way diminish the rights of the Lessee to use the premises as provided in this Lease, and any person or
entity standing in the place of the Lessor as a result of any such sale, assignment, transfer, conveyance,
or mortgage shall assume the duties and obligations to the Lessee as provided in this Lease as if such
person or entity were the Lessor herein.
8.03 Statement of Performance. The Lessor agrees to famish the Lessee, and any of the Lessee's
mortgagees, upon written request therefore, a statement wherein the City Manager shall, under oath,
acknowledge that as of the date of such statement the Lessee, to the best of the Lessor's knowledge, has
performed and observed all of the covenants and conditions herein stated to be performed and observed
16
® by the Lessee, and that to the best of the Lessor's knowledge as of said date the leasehold estate hereby
created and granted to the Lessee is free of all defaults hereunder (or if defaults exist, specifying the
nature of the default); provided, however, the Lessor shall not be required to furnish the Lessee or any
such sublessee or occupant with such statement more than once during any calendar quarter. Nothing
contained herein or any statement subsequently issued hereby shall waive any of the Lessor's rights to
enforce any of the provisions of this Lease against the Lessee.
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) 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
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(ii) Each of the notices contains a reminder of the substance of this subpart
9.02(a), thereafter the Lessor shall no longer be obligated to give the Lessee notice of a
default consisting of the nonpayment of rent and the Lessor may immediately terminate
the lease.
(b) In all other cases with the exception of those cases hereinabove specified where the
lease is subject to immediate termination by,the Lessor, the default must be cured within fifteen
(15) days from the receipt of the notice or, if the default is not reasonably susceptible of being
cured within the fifteen (15) day period, commence curative work within the fifteen (15) day
period and prosecute it to completion with diligence. The determinations regarding whether the
default is reasonably susceptible to being cured within the above- referenced time frame and
whether the Lessee is commencing curative work with diligence shall be made at the reasonable
discretion of the Lessor.
9.03 If any such default occurs and is not cured within the time allowed by paragraph 9.02, the
Lessee understands and agrees that the Lessee shall become immediately liable for all amounts due or
which would have become due under the term of the lease or any extension thereof. Furthermore, in the
event of such default, the Lessor, in addition to any other rights which the Lessor may have under law
or under the provisions of this Lease, shall have the following options, subject to the Lessee's rights under
paragraph 9.06,, below:
(a) Immediately to re -enter and remove all persons and property from the Leased
Premises. Such property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of, the Lessee, all without service of notice or resort to legal process
and without being deemed guilty of trespass, or becoming liable for any loss or damage which
may be occasioned thereby. Such re- entering and removal of persons or property from the Leased
Premises shall not be deemed to preclude the Lessor from exercising any other options granted
by this lease.
(b) To proceed for past due installments, reserving its rights to proceed later for the
remaining installments and to exercise any other option granted by this lease.
(c) Immediately to cancel this lease and to proceed in any manner against the Lessee for
past due installments.
(d) To cancel this lease and re -enter the Leased Premises and to re -let the Premises in the
manner set forth below.
(e) Otherwise, the Lessor may avail itself of any rights under the laws of the State of
Texas to evict the Lessee and obtain occupancy of the Premises and to recover any past due rent
and damages until the Premises shall have been released, all as more fully provided in paragraph
9.04 hereafter.
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9.04 Should the Lessor elect to re- enter, under any provision of this lease, or should the Lessor
take possession pursuant to legal proceedings or pursuant to any notice provided for by law, the Lessor
shall have the right and the ability to make such alterations and repairs as the Lessor determines is
reasonably necessary in order to re -let the Premises and may re -let the Premises or any part thereof. This
re- letting shall be for such rental and on such terms as the Lessor may deem advisable, including a lease
on a monthly basis or for a term extending beyond the term of this lease. All payments received by the
Lessor from such re- letting for the unexpired tern of this lease shall be applied: first, to the payment of
any costs and expenses of such reletting, including attorney's fees and the cost of such alterations and
repairs; second, to the payment of any indebtedness other than rent due from the Lessee to the Lessor;
third, to the payment of the present value, at a discount rate of eight percent (8 %), of the rent due and
unpaid hereunder. If such rentals received from the re- letting are insufficient to pay the amount owed
by the Lessee, then the deficiency shall be paid during that month by the Lessee hereunder, to the Lessor.
Such deficiency shall be calculated and paid monthly in the manner provided above. The Lessee may
request and shall be granted access to the Lessor's books and records in order to ascertain the status and
accuracy of its account with. the Lessor. Notwithstanding any other provisions hereof, in making the
repairs and alterations, re- letting the premises and exercising its other rights hereunder, the Lessor shall
mitigate and minimize the damages suffered by the Lessor and the amounts that shall be due by the
Lessee hereunder.
9.05 Failure to strictly and promptly enforce the conditions set forth above shall not operate as
a waiver of the Lessor's rights. The Lessor expressly reserves the right always to enforce prompt payment
of rent and to treat the failure to pay rent in accordance with this lease as a default, regardless of any
indulgences or extensions previously granted. The waiver by the Lessor or the Lessee of any breach of
this lease shall not be deemed a waiver of any subsequent breach of the same or any other term or
condition of this lease shall be deemed to have been waived by the Lessor or the unless such waiver is
in writing and signed by the Lessor or the Lessee.
9.06 Any and all defaults reasonably declared by the Lessor shall be final and binding upon the
Lessee. If the Lessee receives a default notice but in good faith denies that it is in default (in whole or
in part) the Lessee may prevent the Lessor from exercising the rights or remedies set forth in this Section
9 by taking the following steps:
(a) The Lessee shall remedy that part of the default as to which there is no dispute within
the time allowed, by paragraph 9.02.
(b) As to the disputed part of the default, the Lessee shall either:
(i) Remedy the alleged default within the time allowed by paragraph 9.02 with
full reservation of the Lessee's right to recover from the Lessor the amount paid and costs
incurred by the Lessee if it is ultimately determined that a default did not exist, or
(ii) Furnish the Lessor within the time allowed by paragraph 9.02 with security
approved by the Lessor as adequate in amount to cure the default if a default is ultimately
•
19
determined to exist, provided that the Lessor may not withhold the approval unreasonably.
The security shall consist of cash, obligations, of the United States (or any agency thereof),
of certificates of deposit issued by a national bank and shall be held by a national bank
approved by the Lessor as agent or custodian for the parties.
9.07 In the case of a dispute as to the existence of a default, the Lessee may, in lieu of or in
addition to its rights under paragraph 9.06, assert its right and defenses in any other manner permitted by
law.
ARTICLE 10
MISCELLANEOUS
10.01 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 77522
Fax: 420 -6586
(b) To the Lessee when received at Lessee's office:
Two Bayland Drive, L.C.
c/o RioStar Corporation
Attn: Roland D. Laurenzo
214 N. Nagle
Houston, Texas 77003
Fax: 228 -0135
as the case may be. Notices to a mortgagee or a trustee or sublessee shall in like manner be mailed to its
or their respective last known addresses. Any party may change the address for the giving of notices to
W
• it by giving due notice of the new address to the other parties, provided that the new address must be at
a place in the United States where the mail and either mailgrams or telegrams or similar communications
are regularly received. Notice given by mail shall be deemed given three (3) days after the date of the
mailing of the same to the above- referenced address.
CJ
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 Headin . The headings as to contents or particular articles or sections herein are inserted
only for convenience, and they are in no way to be .construed as a part of this lease or as a limitation on
the scope of the particular sections to which they refer.
10.06 Consents. Wherever either the Lessee's or the Lessor's consent or approval is required or
desired, such consent or approval shall not be unreasonably withheld.
10.07 Rent on Termination. Upon any termination of this lease, other than under Article 9
hereof, all rent paid but not earned shall not be refunded.
10.08 Force Majeure. Neither the Lessor not the Lessee shall be deemed in violation of this lease
if it is prevented from performing any of the obligations hereunder by reasons of strikes, boycotts, labor
disputes, embargoes, shortage of material, acts of God, acts of public enemy, acts of superior
governmental authority, weather conditions, floods, riots, rebellion, sabotage, or any other circumstances
for which it is not responsible or which is not in its control, and the time for performance, except for
payment of monies due the Lessor by-the Lessee, shall be automatically extended by the period the party
is prevented from performing its obligations hereunder.
10.09 Effective Date of Lease. This lease shall be effective as of the date the last party hereof has
executed this lease, and references herein as to the "date this lease is signed" and words of similar import,
shall mean such date.
10.10 Recording of Leas 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 Paymeat_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
21
n
on a dispute between the Lessor and the Lessee, the party against whom the judgment has been rendered
shall be responsible for payment of all court costs and the reasonable attorney's fees of the prevailing
Ply-
10.12 Texas Law. The construction interpretation and performance of this Agreement shall be
governed by the laws of the State of Texas.
10.13 Venus. Both parties hereby irrevocably agree that any legal proceeding arising out of or
in connection with this Agreement shall only be brought in the District Courts of Harris County, Texas
or in the United States District Court for the Southern District of Texas, Houston, Harris County,
Division.
10.14 Liquidated Damages. Both the Lessee and the Lessor agree that time is of the essence in
the payment of all monies due pursuant to this lease and that the time allotted for each monthly payment
described herein is reasonable times for the payment of each, taking into consideration all conditions,
including but not limited to, the economic environment and conditions prevailing in this locality. The
Lessee and the Lessor understand and agree that a breach of this contract as to time of payment will cause
damage to the Lessor and further agree that such damage cannot be accurately measured and that
ascertainment will be difficult. Therefore, as part of the consideration for the awarding of this lease, the
parties agree that for each and every calendar day any payment due hereunder or any portion thereof
remains delinquent as set forth in the lease, the Lessor may charge and the Lessee shall pay as part of the
monthly lease amount owed the sum of one hundred dollars ($100) as minimum liquidated damages.
However, the foregoing agreement as to liquidated damages constitutes only an agreement by the Lessor
and the Lessee as to the minimum amount of damages which the Lessor will sustain in any event by
reason of the Lessee's failure to make payments within specified time periods. Should the Lessor suffer
damage over and above the minimum amount specified by reason of the Lessee's failure to timely pay
in strict accordance with the lease, the Lessor may recover such additional amount. The Lessor will have
the right to recover such amount from the Lessee; all such remedies shall be cumulative and the Lessor
shall not be required to elect any one nor deemed to have made an election -by proceeding to enforce any
one remedy.
10.15 Litter and Pollutants. The Lessee hereby guarantees that no pollutant , effluent, liquid or
solid waste material, fitter, trash or garbage issued from the Leased Premises is allowed to collect in the
waters or in the vicinity of the Premises.
10.16 Fire System, The Lessee shall be responsible for ensuring that all fire fighting systems
and equipment is regularly inspected and remains in the highest degree of readiness.
10.17 Consent, The Lessor by this Agreement does not give consent to litigation and the Lessor
hereby expressly revokes any consent to litigation that it may have granted by the terms of this
Agreement, charter or applicable state law.
ON
0
10.18 dIn emnity. The Lessee agrees to and shall indemnify, hold harmless and defend, the Lessor,
its officers, agents and employees, from and against any and all claims, losses, damages, causes of action,
suits and liability of every kind, including all expenses of litigation, court costs, and attorneys' fees for
injury to or death of any person, or for damage to any property, arising out of or in connection with the
work done by the Lessee under this Contract, where such injuries, death or damages are caused by the
joint negligence of the Lessor and any other person or entity. It -is the expressed intention of the parties
hereto, both the Lessee and the Lessor, that the indemnity provided for in this paragraph is an indemnity
by the Lessee to indemnify, protect and defend the Lessor from the consequences of the Lessor's own
negligence, where that negligence is a concurring cause of the injury, death or damage. Furthermore, the
indemnity provided for in this paragraph shall have no application to any claim, loss, damage, cause of
action, suit and liability where the injury, death or damage results from the sole negligence of Lessor
unmixed with the fault of any other person or entity.
10.19 Guarantor. For the consideration herein expressed which is hereby acknowledged
sufficient and received, Ninfa's, Inc. (the "Guarantor', hereby guarantees all payments and liabilities of
the Lessee and the performance of all obligations of the Lessee under the terms and conditions of this
Lease and all extensions thereof. It is expressly agreed by the parties hereto, the Guarantor, the Lessee
and Lessor, that throughout the initial term of the lease and all extensions thereof, the guaranty provided
in this paragraph is a guarantee by the Guarantor to guaranty the performance of all of the Lessee's
obligations under this agreement, including, but not limited to, operating a first -class Harbor Master
Facility and the payments of all amounts owed by the Lessee hereunder.
10.20 Severability. All parties agree that should any provision of this Agreement be determined
to be invalid or unenforceable, such determination shall not affect any other term of this Agreement,
which shall continue in full force and effect.
10.21 No Third Party Beneficiaries, This Agreement shall not bestow any rights upon any third
party, but rather, shall bind and benefit the Lessee and the Lessor only.
10.22 Authority to Enter Contract. Each party has the full power and authority to enter into and
perform this Agreement, and the person signing this Agreement on behalf of each party has been properly
authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby
represent that they have authorization to sign on behalf of their respective corporations.
10.23 e 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
ATTEST:
EILEEN P. FALL, City Clerk
! r
APPROVED AS TO FORM:
AdNACIO RAMIREZ, ., City Attorney
•
LESSEE
Two Bayland Drive, L.C.
Ninfa's, Inc.
LESSOR
PETE C. ALFARO, Mayor (Date)
City of Baytown, Texas
24
t 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 he executed the same for the
purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of TU P67 1996.
RICHARD P. HOLGIN
Nabry Pubk hate of Texas
Mr Cbf m a Exp res 10.31 -N Notary Public in and for the fate 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 he executed the same for the purposes and
consideration therein expressed.
S�-
SUBSCRIBED AND SWORN before me this 74 day of J10C 1996.
RICHARD P. HOLGIN Notary Public in and for thet tate of Texas
Mabry PUMr. state of Tex,
••, „ * 4armiuion Expires 10.31.95
® c:lkih Mcontractsl6harbonnaster
25
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PREMISES IMPROVEMENTS
Ship's Store Equipment
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....... .. :............. .......
tip:.......
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................................ ............:::......:.:::.:... n..- ................ .......................v::: x:. n. ✓✓.. n:. ti?. r: :v::•: :::v:{:n. {.......:....n..
1 lot
MICRO SYSTEM:
3
3
1
3
3
Micros 2700 WL w/ Memory System Units
Micros Integrated Roller Printers
Micros Magnetic Card Reader
Micros Cash Drawers
Micros Turret Displays, Programming Installation &
Training
2
True GDM72.72" 3 -Door Display Cooler, 12 Bottle Shelves
1
True GDM49F, 54" 2 -Door Display Freezer
4 sets
4' x 21" x 3 Shelves IS Shelving
3
Y x 21'` Dunnage Racks New Age
1
True GDIM -50, 54" 2 -Door Bag Ice Display Freezer
I
Masterbuilt GT -60, 2 -Door Display Freezer
2
True GDM -49, 54" 2 -Door Display Cooler, w/ 16 Bottle
Shelves - Retail Shelving (lot)
RETAIL SHELVING (LOT):
2
6' Gondolas 48" High 15" Base w/ (2) 13" Upper Shelves
2
8' Gondolas 48" High 16" Base w/ (2) 13" Upper Shelves
2
3' Wall Shelf 48" High 15" Base w/ (2) 13" Upper Shelves
2
4' Wall Shelf 48" High 16" Base w/ (2) 13" Upper Shelves
1
6' Wall Shelf 48" High 15" Base w/ (2) 13" Upper Shelves
EXHIBIT "A"
THE STATE OF TEXAS)
® COUNTY OF HARRIS)
FIELD NOTES of a 0.9010 of an acre tract of lard situated in the
William Scott Upper League, Abstract No. 66, Harris County, Texas,
and being out of and a part of a :45.3774 acre tract of land called
Tract 2 in a deed from B.F.B., Inc., to City of Baytown, dated
November 20. 1979, and recorded at County Clerk's File Nu =::er G
388038 of-the Official Public Records of Real Property of B2zris
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 COORDLZATES
REFER TO THE STATE PLANE COORDINATE SYSTEM, SOUTH.CENTRAL ZONE, AS
DEFINED BY ARTICLE 5300A OF THE REVISED CIVIL STATUTES OF THE STATE
OF TEXAS, 1927 DATUM. ALL DISTANCES ARE ACTUAL DISTANCES..
REFERENCE IS MADE TO PLAT OF EVEN DATE ACCOMPANYING THIS METES AND
BOUNDS DESCRIPTION.
COMMENCING at a 2 inch galvanized iron pipe found , for the nest
.corner of a 12.34 acre tract of land conveyed to the Cit., of
Baytown by William Marsh Rice University by deed dated March 31,'
1995, and recorded at County Clerk's File Number R 354555 o: 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,
1989, and recorded at County Clerk's File Number M 310862 of the
Official Public Records of Real Property of Harris County, Texas.
This corner is in the South right of way of State Highway No. 146;
right width varies, and has a State Plane Coordinate value o= Y =
705,022.15 and X = 3,269,733.81.
THENCE South 47 deg 49 min 20 sec East with the Southwest of
said 12.34 acre tract of land and the Northeast line of said 10
acre tract of land, at .489.45 feet found a 2 inch galvanized ;Ton
pipe in line for the East corner of said 10.00 acre tract anal the
North corner of said 45.3774 acre tract of land, continuing on with
the Northeast line of said 45.3774 acre tract and the Sou — est
line of said 12.34 acre tract of land a total distance of 14 =3.43
feet to a point.
THENCE South 42 deg 10 min 40 sec West a distance of 180.96 fee: to
a 1/2 inch iron rod set for the Northwest corner of this trz= of
sand. This corner has a State Plane Coordinate value of
Y = 703,872.71 and X = 3,270,666.92.
THENCE South 66 deg 00 min 00 sec East with the North line of this
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 West with the East line of phis
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 t=act of land.
EXHIBIT $
PAGE NO. 2 - 0.9010 ACRE TRACT
THENCE South 48 deg 54 min 50 sec West with the Southeast line of
this tract of land a distance of 75.01 feet to a 1/2 inch iron rod
set for the most Southern Southeast corner of this tract of land.
THENCE North 86 deg 05 min 00 sec West with the South line of this
tract of land a distance of 121.09 feet to a 1/2 inch iron 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
1, '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
453OLEAS.FDN
. ..............:
ROBERT L. HALL, JFL
....................... 9. 1610 . .
UR�j�
Texas, this the 5th., day of
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0 $206,623.67 PROMISSORY NOTE
STATE OF TEXAS §
COUNTY OF HARRIS §
December 31, 2001
FOR VALUE RECEIVED, the undersigned Ninfa's Holdings, L.P. (Maker) promises to pay to
the order of City of Baytown (Holder) the sum of TWO HUNDRED SIX THOUSAND SIX
HUNDRED TWENTY -THREE 67/100 DOLLARS ($206,623.67) in the currency of the United
States of America together with interest as set forth below.
Interest Rate
1. Interest shall accrue on the unpaid balance of the principal amount at the rate of 7.64
percent per annum prior to maturity and at the rate of 12 percent per annum after
maturity. Interest shall by calculated based upon a 365 -day year.
Payment
2. The principal amount, plus accrued interest to the date of payment, shall be due and
payable in 60 monthly installments of $4,154.07 each, beginning on the 15th day of
February 2002, and continuing on the 15th day of each month. The monthly payments
provided for herein shall first be applied to the payment of interest accrued and the
balance of which payment shall be applied to the payment of principal. Payments shall
be made by Maker to Holder at the following address:
2401 Market
P.O. Box 424
Baytown, Texas 77522 -0424
Prepayment
3. Maker shall have the right to prepay the principal in whole or in part at any time, and
interest shall immediately cease to accrue as of the date of payment on any amount of
principal that is prepaid. Prepayments shall be applied as a credit against the last
maturing installment or installments of principal due hereunder and shall not operate to
defer or otherwise postpone the regular obligatory installments of principal payable
hereunder.
Default
0 4. Failure to pay any installment of this Note, either principal or interest, as and when the
same is or becomes due and payable hereunder, or in the event of default of maker in any
EMIBIT B
of the terms, provisions or conditions of any instrument executed or to be executed by
Maker as security for payment hereof, and such default shall continue for a period of ten
days after written notice to Maker of such default, shall, at the election of Holder hereof,
mature this Note so that the entire unpaid balance of principal and any unpaid interest is
immediately due and payable.
Waivers
5. Maker, every surety, and every endorser of this Note severally waive demand,
presentment, notice of non - payment, protest, notice of protest, notice of intent to
accelerate, notice of the exercise of option to accelerate, filing of suit, and diligence in
collecting this Note or enforcing any security herefor, and consents and agrees to all
renewals, extensions, and partial payments both before and after maturity without
prejudice to Holder.
Attorneys' Fees
6. If this Note is not paid at maturity and is placed in the hands of an attorney for collection,
or if it is collected through a court of bankruptcy, probate, or other court after maturity,
then Holder shall be entitled to reasonable attorneys' fees for collection.
Usury Exclusion
7. It is the intention of the Maker and Holder to conform strictly to the usury laws in force
in the State of Texas and the United States of America. It is therefore agreed that (i) in
the event that the maturity hereof-is accelerated by reason of an election by Holder, or if
the same is prepaid prior to maturity, all unearned interest shall be cancelled
automatically, or if theretofore paid, shall be either refunded to the Maker or credited on
the unpaid principal amount of this Note, whichever remedy is chosen by Holder, (ii) the
aggregate of all interest and other charges constituting interest under applicable law and
contracted for, chargeable or receivable under this Note shall never exceed the maximum
amount of interest nor produce a rate in excess of the maximum rate of interest that
Holder may charge Maker under applicable law and in regard to which the Maker may
not successfully assert the claim or defense of usury, and (iii) if any excess interest is
provided for, it shall be deemed a mistake and the same shall either be refunded to Maker
or credited on the unpaid principal amount hereof; and the Note shall be automatically
deemed reformed so as to permit only the collection of the maximum non - usurious rate
and amount of interest allowed by applicable law. All sums paid or agreed to be paid to
the Holder hereof for the use, forbearance or detention of the indebtedness evidenced
hereby shall, to the full extent permitted by applicable law, be amortized, prorated,
allocated and spread through the full term of this Note.
THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Signed this the L day of S -.22002.
NINFA'S HOLDINGS, L.P., a Texas limited
partnership
BY: NINFA'S HOLDINGS MANAGEMENT,
L.L.C, a Texas limited liability company,
General Partner ofNfi fa's Holdings, L.P.
�:4z"L-9�
By: er
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Printed Name
Title
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