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Ordinance No. 9,722ORDINANCE N0. 9722 ` AN ORDNANCE OF THE CITY" CO( -r iCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHOIZIZNG AND DIRECTING THE CITY" iIMANAGER AND CITY CLERK TO EXECUTE AND ATTEST TO A BILL OF SALE AND A LEASE OF PREMISES FOR THE SALE OF EXISTNG BUILDING, PREVIOUSLY USED AS A RESTAURtINT FACILITY, AT BAYLAND ISLAND AND ACCOMPANYING GROUND LEASE WITH ANGEL BROTHERS ENTERPRISES, LTD.; AND PROVIDNG FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City Council of the City of Baytown did authorize the advertisement for bids concerning both the following options to be received on Thursday, January 29, 2004. Option l: Sale of existing building, previously used as a restaurant facility, at Bayland Island and accompanying ground lease, and Option 2: Sale of Bayland Island in its entirety; and WHEREAS, notice to bidders as to the time and place, when and where the bids would be publicly opened and read allowed was published pursuant to provisions of Texas Local Government Code Annotated x_.041 ; and WHEREAS, all bids were opened and publicly read at City Hall at 2:00 o'clock p.m., Thursday, January 29, 2004, as per published notice to bidders; and WHEREAS, the City received no bids concerning Option 2; and WHEREAS, Angel Brothers Enterprises, Ltd.. submitted the highest offer concerning option No. l; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section L That the City Council of the City of Baytown hereby accepts the bid of Angel Brothers Enterprises, Ltd., concerning the sale of existing building, previously used as a restaurant facility, at Bayland Island and accompanying around lease for the sum of ONE HUNDRED FIFTY-SEVEN THOUSAND SEVEN HUNDRED AND N0/100 DOLLARS (Sl57,700.00); and authorizes and directs the City Manager to execute and the City Clerk to attest to the Bill of Sale and Lease of Premises, which are attached hereto and incorporated herein for all intents and purposes as Exhibits "A" and "B," respectively. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. NTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Bavtown this the 12`s day of February, 2004. PETE C. ALFARO, N yor ATTEST: GARY W. SMITH, City Clerk APP OVED AS TO FORM: uNACIO RAINMEZ, SR., C Attorney F:\KarenTiles\Ciry Cuuncil'.ordinancesV\n gel BrochcrsBa-el and IslandSafeotResiaur3n[&Ground Lease.doc EXHIBIT A BILL OF SALE STATE OF TEXAS § § KNOW ALL PERSONS BY THESE PRESENTS: COUNTY OF HARRIS § THAT the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, Seller, in consideration of the payment of the sum of ONE HUNDRED FIFTY-SEVEN THOUSAN-D SEVEN HUNDRED A�t-D NO/100 DOLLARS (S157,700.00), receipt of payment acknowledged, does. hereby sell and transfer to Angel Brothers Enterprises, Ltd., Buyer, a Texas limited partnership located at 5210 Nest Road, Baytown, Texas 77521, the following described personal property located in Harris County, Texas. No real property is conveyed by virtue of this Bill of Sale. 1. The building previously utilized as a restaurant located on real property comonly referred to as Bayland Island and as more specifically depi mcted in Exhibit "A." which is attached hereto and incorporated herein for all intents and Purposes;*which 2, The personal properly, which is more particularly described in Exhibit B, is attached hereto and incorporated herein for all intents and purposes. (collectively hereinafter referred to as the "Property"). THAT SELLER IS SELL NG ONLY SUCH RIGHT OR TITLE TO THE PROPERTY BEING SOLD AS SELLER MAY� H AVE � Y OF TITN THE LE TO THE PROPERTY�ENT IS ATE THIS AGREEI EXECUTED AVD DISCLAL�[S .��IY SRR THAT SELLER MAKES NO REPRESENTATIONS THAT THE PROPERTY SPECIFIED HEREINABOVE BELNG SOLD IS FREE OF THE RIGHTFUL, CLADvI OF ANNY" THIRD PERSON BY WAY OF �� VD ID SCLOAl�OF LVFF�LyGENry �i�E�rN. T OF. G��T OR TR�DEvIARK OR THE L\4`FRINGEINIENT WITH RESPECT TO THE PROPERTY. SELLER HAS PERFORMED OR CAUSED TO BE , OF THEPBUiLDL�GD: FACILITY, 12N -HICH STUDY ON THE STRUCTURAL INTEL THE ENGLNEER OPTED THAT i THE FACILITY DOES NOT MEET THE REQUISITE WIND -LOAD REQUREMENTS AND THE STRUCTURE WOULD FA.1L. AT W iNDS OF LESS THAN 100 3ME-ES PER HOUR AND THE STRUCTURE SHOULD NOT BE OCCUPIED BY ANYONTE IF WNDS WERE FORECAST TO BE LN EXCESS OF 50 MILES AN HOUR. BUYER HAS BEEN GIVEN THE OPPORTUNTITY TO REVIEW THIS REPORT, ASSiJyIES ® ALL RISKS ASSOCLkTED WITH THE BUILDNG WANEES A`D RELEASES THE CITY FROyI ALL CLADvIS AND/OR CAUSES OF ACTION WWCH BUYER OR AV`Y OF ITS n:l1:.rC,1r, n,,,e 1 0 SUCCESSORS, AGENTS, EvIPLOYEES, NVCTEES OR GUESTS viAY HAVE AGAINST SELLER BASED UPON THE STRUCT-UR-kL ENTEGRITY OF THE BU LDNG. SELLER HAS MADE NO AFFIR%IATION OF FACT OR PROMISE RELATNG TO THE PROPERTY SPECIFIED HERE Ni LkBOVE BEING SOLD THAT HAS BECOME ANY BASIS OF THIS BARGA.2,4. FURTHER, SELLER HAS MADE NO AFFIRMATION OF FACT OR PROMISE RELATNG TO. THE PROPERTY BENG SOLD THAT HAS CREATED OR AMOUNTED TO AN .E\PRESS WARRANTY THAT THE PROPERTY WOULD CONFORM TO AN'Y SUCH AFFFIRMATION OR PROMISE. IT IS SPECIFICALLY AGREED THAT THE PROPERTY SPECIFIED HEREL�i 1ABOVE SOLD BY THIS AGREEMENT IS SOLD WITHOUT ANY WARRANTY OF MERCHANTABILITY. THAT SELLER DISCLALVIS �v`Y WARRANTY OF FITN1ESS FOR A_1 PARTICULAR PURPOSES WHATSOEVER WITH RESPECT TO THE PROPERTY BENG SOLD UNDER THIS AGREEvIENT. THAT THE PROPERTY" DESCRIBED N THIS AGREEMENT IS SOLD ON .Iv "AS IS" AND "WITH ALL FAULTS" BASIS, A.N-D SELLER DISCLAEVIS AN -Y LvIPLLED WARRANTIES WITH RESPECI' TO THE- PROPERTY. BUYER HEREBY AGREES TO INDEMNIFY, HOLD HARVILESS, PROTECT AND DEFEND SELLER, ITS OFFICERS, AGENTS, AND EMPLOYEES (THE "SELLER PARTIES") FROM AND AGAINST ANY AND ALL CLAENIS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KJND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEY'S FEES, FOR ANY INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO ANY PROPERTY" INCURRED IN CONNECTION WITH THE PROPERTY CONVEYED HEREIN. INCLUDING ANY ACTION OR PROCEEDINGS BROUGHT THEREON, ARISING FROM, AS A RESULT OF, OR IN ANY WAY RELATED TO BUYER'S OFFICERS', AGENTS', ENIPLOYEES', CO-iTRACTORS', GUESTS', AND/OR INVITEES' (THE "BUYER PARTIES") USE OR OCCUPANCY OF THE PROPERTY AND/OR THE PRENIISES UPON WHICH SUCH PROPERTY IS LOCATED OR ANY OF THE ACTIVITIES OF ANY SUCH BUYER PARTIES WITH RESPECT TO THE PROPERTY, OR IN THE DESIGN OR CONSTRUCTION OF THE PROPERTY, WHERE SUCH INJURIES, DEATH, OR DANIAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE SELLER PARTIES AND ANY OTHER PERSON OR ENTITY AND/OR BY THE JOINT OR SOLE Bili c-$a1C. P1�!_ 1 NEGLIGENCE OF THE BUYER PARTIES. IT IS THE EXPRESS INTENTION OF BOTH SELLER AND BUYER THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY BUYER TO INDEMNIFY, HOLD HARMLESS, PROTECT, AND DEFEND THE SELLER PARTIES FROM (I) THE CONSEQUENCES OF THE NEGLIGENCE OF THE SELLER PARTIES, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE WITH THAT OF ANY OTHER PERSON OR ENTITY OF ANY SUCH INJURY, DEATH OR DAMAGE AND/OR (II) THE BUYER PARTIES' SOLE AND/OR CONCURRENT NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FROM THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT OR LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE SELLER. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE SELLER BY REASON OF ANY OF THE ABOVE, BUYER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. This Bill of Sale shall be effective as to the transfer of all property listed in it as of the day of February, 2004. IN WITNESS WHEREOF, this Bill of Sale is executed on this th g day of 2004. SELLER: CITY OF BAYTOWN, TEXAS C. PETE C. ALFARO, Mayor BUYER: ANGEL BROTHERS E ice President RISES, LTD. Bill of Sale, Page 3 _CO• • STATE OF TEXAS COUNTY OF HARRIS Before me, the undersigned authority, on this day appeared PETE C. ALFARO, Mayor of the City of Baytown, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the instrument for the purposes and consideration expressed in the instrument. kd Given under my hand and seal of office on this theatO day of , 2004. \,�►►►►PH �N o�A iiii, • _ ..oRYPa• G1 11 • - 4%F OF i.. •.EXPIRE5•'_.� 40-2 -0bA‘��``` STATE OF TEXAS COUNTY OF HARRIS Notary Public in and for the tat of Texas Before me, the undersigned authority, on this day appeared GARY ANGEL, Vice President of Angel Brothers Enterprises, Ltd., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the instrument for the purposes and consideration expressed in the instrument. A-- Given under my hand and seal of office on this thci d day of February, 2004. Oluonsiillio ON G 1. co • 41 , • 73 s Nota Public in . nd for t ':`�4TEOF •••EXPIRES••• % he tate of Texas My commission expires: \O - Z•S - O$ F:\Karen\Files\Contracts\Bayland Island\BillofSale4RestaurantNPersonalPropertyAngels.doc Bill of Sale, Page 4 0 EXHIBIT A."..... Jj- r) 0 'q > ri PJW*JITLVWM PUC<A-R r%.AJ4 --G - ---CI) -- -- I -. I.. -(D =J -Y, tz Jj- r) 0 'q > ri PJW*JITLVWM PUC<A-R r%.AJ4 --G - ---CI) -- -- I -. I.. -(D • City of Baytown Bayland Island Inventory @ 1126/2004 • Exhibit "B' Restaurant tqutp a F -U," - «.1 Description Item Cost Total Cost Brand Name Model No. On Hand 5,717.00 5,717.00 Pyrcchem NtvICH 1 Ansul fire system 2 Supreme jocky box 793.00 1,586.00 1 Dishtable U shaped with prewashed sink 2,915.00 2,915.00 1 Stainless steel three shelf rack for trays (approx 21' long) 1,289.00 1,289.00 1 Stainless steel L - shape table wicoke machine (8 dispensers) 1,855.00 1,855.00 1 Shelf and pot rack equipment mounted to walls 2,214.00 2,214.00 3 Drain board 140.00 420.00 3 Beer boxes wlsoda dispenser 490.00 1,470.00 1 Four compartment bar sink 835.00 835.00 1 Advance mop sink 9 -OP -20 wlk-240 :;:ucet 498.00 498.00 1 Walk - in cooler (approx 21') 15,400.00 15,400.00 Kysor!Needham 1 Walk - in freezer (approx 8' } See above KysorlNeedham 5 Stainless steel hand washing sink 166.77 833.85 1 Stainless steel two compartment sink - 1 Two compartment sink (appox 7' ) 1,895.00 1.895.00 3 Stainless steel table w!shelves(approx 3' } 458.00 1,374.00 2 Stainless steel hoods (tyro rows) 11,580.00 23,160.00 15,000.00 15,000.00 1 Wall decorations 1 Stainless steel three comparmenl sink 2,421.00 2,421.00 � 78,882.35 I 212!2004 Eayland Island Inventory 1-26-04 Revisedt.xls Cityof Ba%rtown ayland Island Inventory @ 1/26/2004 Restaurant Equip & Furn - Unattached Items On Hand Item Name 8 6 1 38 35 15 1 1 1 1 1 1 1 1 2 1 1 2 1 1 1 1 1 2 1 1 1 1 1 1 2,nni_ no area Double sided booth seats Single custom booth seats Rounded custom bench seat Interior tables Interior chairs Bar stools Hostess stand w/ cabinet (behind) Display case Phone system (new owner added 3 phones) Sound system (new owner replaced outside speakers) TV 21" TV 21" Digital Satelite Disk (substituted for 2 TVs) Stanless steel table - outside Wooden cash register tablew/cabinets Standalone roll printer Kitchen Cooler Freezers (beverage freezer/ cooler) Freezer Ice Machines w/ 32" bins Frozen beverage machine Freezer - glass chiller Freezer - keg cooler Microwaves Four Drawer Cooler Stainless steel table (approx 5' ) Deep table 3'x 30' Clean dishtable wl stainless steel u/shelf Equipment stand w/undershelf 4' 2" X 36" Stainless steel table 5' 6" �r^r^nn4 Exhibit "$" I Cost 469.00 234.83 1,332.02 200.00 125.00 150.00 473.00 578.00 2.600.00 8, 500.00 350.00 350.00 700.00 Total Cost 3,752.00 1,408.98 1,332.02 7,600.00 4,375.00 2,250.00 473.00 578.00 2,600.00 8,500.00 350.00 350.00 700.00 rand Name Daewoo Magnavox 1,000.00 1,000.00 Micros 2.238.00 1,086.50 1,585.00 6,026.25 3,200.00 1,020.00 1,391.00 995.00 2.976.00 535.00 388.00 460.00 363.00 726.00 2,238.00 True 2.173.00 True 1,585.00 True 5,025.25 Crystal Tip/Larossa 3,200.00 Mich 1,020.00 True 1,391.00 True 1,990.00 Amana 2,976.00 Larossa 535.00 388.00 460.00 363.00 726.00 Savland Island Inventory 1-26.04 RI'visedl.xls Model No. 7PP67 7550 27-12M 7550 48-18-41 CRS 1202:L80148,LS0160 BRS 1076 T-24GC TDD3 RC16SE I* 2,2004 Eayland lsiand inventory 1 -26 -Oa RevisedI -xis 84145 H600T ICti136 Model No. Exhibit -B- Restaurant Equip & Furn - Unattached Items Item Name Unit Cost (New) Total Cost Brand Name On Hand EPCO 1 Hot Box 998.00 1,996.00 Imperial 2 Two burner stove - gas 1 Eight burner stove & oven 1,575.00 1,575.00 Vulcan - attachment (buffalo chopper) 3,325.00 3,325.00 Hobart 1 Cheese cutter/mixer 8,700.00 8,700.00 Hobart 1 Large Mixer 1,080.00 1,080.00 Vulcan 1 Cheesemelter 1 Scale 100 lbs. Stainless steel table dual shelf (7' high) 388.00 388.00 1 1 Four burner gas stove 10 Gold bond shelving for dry storage 214.01 2,140.08 1 Steam table - 4 pan 1,000.00 1,000.00 Hobart 1 Flat top griddle Office 700.00 700.00 1 Safe 81.244.33 Total Cost of All Items I* 2,2004 Eayland lsiand inventory 1 -26 -Oa RevisedI -xis 84145 H600T ICti136 Model No. LEASE OF PREMISES M i This lease is signed on thisJ'/7 day o ' • . .$14, between The City of Baytown, Texas, a munici al co oration located in arris and Chambers Counties,Texas ("Lessor"),and Angel Brothers p corporation g Enterprises, Ltd., a Texas limited partnership having its principal place of business at 5210 West Road, Baytown, Texas 77521 ("Lessee"). The Lessor and Lessee agree as follows: ARTICLE I. DEFINITIONS 1.01 Basic Term: The period of time described in Article IV. 1.02 Common Area: The real property designated as such in Exhibit "C," which is attached hereto and incorporated herein for all intents and purposes. 1.03 Effective Date:February 12, 2004, the date this lease is executed by the Lessor. 1.04 Lessor: City of Baytown, Texas. 1.05 Lessee: Angel Brothers Enterprises, Ltd. 1.06 Option Term: The period of time during which the Lessee has extended the Basic Term in accordance with Article IV. 1.07 Premises: The real property upon which the Premises Improvements are located, as depicted in Exhibit "C," which is attached hereto and incorporated herein for all intents and purposes, and as more particularly described in Article III hereof. 1.08 Premises Improvements: The facility previously used as a restaurant, which consists of approximately six thousand square feet (6000 ft2) and other personal property which has been sold to Lessee in accordance with the Bill of Sale, which is attached hereto and incorporated herein as Exhibit "D." 1.09 Sexually Oriented Business: An adult arcade, adult bookstore, adult cabaret, adult encounter parlor, adult lounge, adult modeling studio, adult motel, and/or adult theater, as defined and/or regulated in Chapter 4 of the Code of Ordinances of the City of Baytown, Texas, as such chapter currently exists and as hereinafter amended. 1.10 Term: The period of time during which this Lease is effective as determined in accordance with Article IV, and includes the Basic Term and any Option Terms. 1 ® ARTICLE II. WORDS OF LEASING 2.01 Leasing of Premises. For and in consideration of the covenants made by Lessee herein, Lessor has leased, demised and let and by these presents does lease, demise and let unto Lessee and Lessee by these presents does hereby lease and take from Lessor the Premises. TO HAVE AaVD TO HOLD the Premises unto Lessee, its successors and assigns, for and during the Term. 2.02 Conjmon :Irea Usage. For and in consideration of the covenants made by Lessee herein, Lessor hereby grants Lessee, its agents, employees, customers, and invitees the privilege to use the parking areas and the other Common Axeas and all rights, alleys, rights-of-way, easements, and appurtenances thereunto belonging or in any way appertaining to the Bavland Island on a non-exclusive basis in common with the general public and other lessees of Bayland Island and their respective agents, employees, customers and invitees. Such non-exclusive right to use the parking facilities shall be subiect 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 7.01 herein. Additionally, it is expressly understood and agreed that the ships store and marina facilities shall not be considered common areas, and Lessee shall not be entitled to deemed to have the privilege to use such areas. 7.03 iV0n11inejtt Sign: For and in consideration of the covenants made by Lessee herein, Lessor hereby grants Lessee, at Lessee's sole cost and expense, the privilege of placing a sign approved by the Lessor on the Lessor's monument sign. 2.04 Disclaimer of all WVar-i-Cnties. LESSOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY NATURE, MND OR CHARACTER WHATSOEVER, EXPRESS OR INIPLIED, REGARDING THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PREMISES, INCLUDE' G, WITHOUT LIiti1IITATION, ANY WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND LESSEE ACCEPTS SUCH PREP'IISES IN AN `=AS IS" CONDITION, WITH ALL FAULTS. LESSEE, BY ITS ACCEPTANCE OF THIS LEASE EXPRESSLY WAIVES ANY RIGHT OR CLAIM AGAINST LESSOR FOR DAMAGES, RESCISSION OR OTHER REi\'IEDY AT LAW OR IN EQUITY WITH RESPECT TO OR RESULTING FRON1 THE PHYSICAL CONDITION OF THE PREMISES AND THE INIPROVEMENTS, IF ANY THEREON, INCLUDING, `YITHOUT LIMITATION°, THE ENVIRONMENTAL CONDITION OF THE PREMISES AND THE FACT THAT PORTIONS O ® THE PREMISES MAY BE LOCATED WITHIN THE 100 YEAR FLOOD ® PLAIN. THE WAIVER AND EXCULPATION PROVIDED ABOVE SHALL BE BINDING ON ALL SUCCESSORS AND ASSIGNS OF LESSEE AND ALL OPERATORS OF THE PREMISES. ARTICLE III. PREINTISES 3.01 Premises. Except as expressly provided to the contrary in this Lease, reference to "Premises" is to the land within the area depicted in Exhibit "C," attached hereto, in the City ofBaytown Hams County, Texas. 3.02 Survey of Premises. Lessee hereby expressly agrees that the exact location of the Premises herein leased, demised and let shall be more particularly defined and described by metes and bounds by Lessor based upon a survey funded by the Lessee and that such exact location as described by such metes and bounds by Lessor shall constitute the Premises. 3.03 Disclosure. BAY -LAND ISLAND CONTAINS A\` AREA OF ENCAPSUI..ATED SPOILS. A PORTION OF THE ISLAND IS WETLANDS AND UTILIZATION IS RESTRICTED. ARTICLE IV. TERYI 4.01 Basic Term. The Basic Term of this lease shall commence on the Effective Date and continue thereafter until ten (10) years have elapsed. 4.02 Option Terms. Lessee is °ranted the right to extend the Basic Term for an additional period of 5 years. If Lessee elects to extend the Basic Term for the first additional period of 5 years, the Lessee may also elect to extend the Basic Terris 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 Term 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 Terre for the fourth additional period of 5 years, the Lessee may also elect to extend the Basic Term fora fifth additional perim od of 5 years. If Lessee elects to extend the Basic Terfor the fifth additional period of 5 years, 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 only if (i) Lessee gives Lessor written notice thereof at least one hundred eighty (180) days before the expiration of the then -current term and ® (ii) Lessee is not in default of any provision under this Lease; whether material or otherwise, at 3 ® the time such notice is given. All of the terms and conditions hereof shall apply during the additional term(s), unless otherwise modified in writing by the parties hereto. 4.03 Removal of Lessee's Property. Upon expiration or termination of this Lease, Lessee shall have the nght to remove from the Premises the Premises Improvements. 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 the Premises. ARTICLE V. RENTAL AND NLAINTENANCE FEES 5.01 Rent. During the Basic Term and each Option Term, Lessee shall pay to Lessor rent in the amount of Olv`E AND NO/ 100 DOLLARS (S 1.00) per month payable in advance. 5.02 iWaintenance Fee. Throughout the Term, Lessee shall pay a maintenance fee totaling FIVE HUNDRED ,_ND N0/100 DOLLARS (5500.00) per month. Such maintenance fee shall be adjusted annually to reflect the Consumer Price Lndex (Urban) of the month sixty (60) days prior to the anniversary date of this Lease. 5.03 Payment Terms. All payments required herein to be paid by the Lessee shall be due on or before the fifth (5th) day of each month and shall be paid in lawful money of the United States to the Director of Finance of the City of Baytown or his/her designee at the City Hall of the City of Baytown. 5.04 Prompt Payment of Rent and Maintenance Fee. Lessee's right to possession and all of Lessor's obligations hereunder are expressly contingent upon the prompt payment of rent and maintenance fees, and the use of the Premises by Lessee is obtained only on the condition that rent and maintenance fees are paid on time. Payment of rent and maintenance fees shall be independent covenants and all monies received by Lessor shall be applied first to non -rent obligations of Lessee and then to rent regardless of any nutation on the check. At any time after Lessor's receipt of a check from Lessee for rent or for a maintenance fee, such check is not honored by the drawing financial institution due to insufficient funds or is otherwise dishonored twice for any reason, Lessor may at any time thereafter, at Lessor's sole option, require that all rent, maintenance fees. and other sums due from Lessee hereunder be paid either by cashier's check or money order. Failure to pay any rent or maintenance fee as and when required will not only be considered a breach of this Lease but also result in interest. as specified in Section 5.05, beim charged on the delinquent rental and/or maintenance payments commencing on the date the payment first becomes overdue. 5.05 Interest on Delinquent Payments. Delinquent payments shall bear interest. Interest shall be determined by the prime interest rate as promulgated by Southwest Bank of Texas or its successor or twelve percent (12111'0) per annum, whichever is greater. Such interest shall commence on the date the payment first becomes overdue and continuing until the delinquent payment is paid in full. ARTICLE VI.. UTILITIES AND TAXES 6.01 Personal Property Taxes. Lessee shall pay all personal property taxes, general and special assessments and other charges of every description levied on or assessed against the Premises Improvements and all property located on the Premises herein leased falling due during the Terris. For all purposes of this Lease, anv tax assessment or charge imposed upon the improvements, whether classified as real property or personal property, shall be considered personalry taxes. Lessee shall make all such payments directly to the charging authority prior to any delinquency and before any fine, interest or penalt- shall become due or be imposed by operation of law for their nonpayment. 6.02 Other Taxes. Lessee shall promptly pay all other taxes imposed or which may be hereinafter imposed by any governmental authority arising out of or in connection with the use and occupancy of the Premises and pay any such taxes prior to any delinquency and before any fine, interest or penalty shall becor — dui or be imposed by operation of law for their nonpayment. 6.03 Lessee's Right to Contest Tcuces :=lssessed. Lessee may contest the legal validity or amount of any taxes, assessments or charges for which Lessee is responsible under this Lease, and may institute such proceedings as are necessary and appropriate to contest their validity. If Lessee contests any tar, assessment or charge, Lessee maw, unless otherwise required by law, withhold or defer only that portion of the payment; which is the subject of Lessee's contest, or pay under protest. Prior to the date any contested taxes, assessment; or charge shall become due, Lessee shall perfect its contest of any tax, assessment or charge and advise Lessor in writing that Lessee: has contested the same and the arounds therefor. All such contests must be made in good faith and diligently pursued. 6.04 Utilities. Lessee shall be responsible for and pay when due all bills or invoices for water, sewer, drainage, and electricity and other utilities used on the Premises from and after the Effective Date of the Lease and shall pay all sewer charges. drainage fees, and all other similar fees and charges associated with the Premises Improvements. Lessor avrees to make available at the boundary of the Premises, at Lessor's sole cost and expense, facilities deemed adequate as determined by Lessor in transmission size and capacity for the operation of the Premises Improvements (as well as capacity therefor) with respect to water, sanitary sewer and electricity. All of such facilities shall be available for connection by Lessee at the boundary of the Premises. Lessee shall not be responsible for any connection or tap fees associated with water or sewer services provided by the Lessor. 0 • ARTICLE VI1. USE AND OCCUPANCY 7.01 purpose. Lessee shall not use the Premises for any disorderly or unlawful purpose. Additionally, the Premises shall not be used by Lessee for the purpose of operating any of the Following: an industrial facility including, but not limited to, both heavy industry and light industry uses as defined in Chapter 130 of the Code of Ordinances, Baytown, Texas, as such definitions currently exist or as hereinafter amended: a junk or salvage yard, including, but not limited to, an automotive wrecking and/or salvage yard as regulated in Chapter S2 of the Code of Ordinances, Baytown, Texas, as such regulations currently exist or as hereinafter amended; i a sexually oriented business; and/or r a facility which would affect the ability of a person to sell alcoholic beverages elsewhere on Bayland Island or in Britton Park. The decision of Lessor's City Manager as to whether a proposed use is disorderly, unlawful or falls within one of the above -referenced prohibited purposes shall be final and binding on the Lessee. 7.02 Conformance to Law. Lessee shall not use the Premises for any unlawful purpose in violation of any valid and applicable law, regulation, or ordinance of the United States, the State of Texas, or the City of Baytown or other lawful authority having jurisdiction over the Premises, but rather shall conform to all such laws, regulations and ordinances. Lessee shall not cause, permit or suffer any waste, damages, or injury to, any portion of the Premises. 7.03 Lessor's Covenant of Title. 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. 7.04 parking. Lessor agrees and warrants that Lessee and its agents, employees, customers, and invitees shall have the privilege, together with the other tenants of Bayland Island and their respective employees, invitees and customers and the general public, to use the parking areas for vehicle parking purposes only as depicted in Exhibit "C," which is attached hereto and incorporated herein for all intents and purposes. Lessee understands and agrees that throughout the Term of this Lease, the parking areas and the modes of ingress and egress may be changed from time to time at the sole option of the City klanager; however, the Lessor acknowledges that Lessor will do nothing to substantially decrease the number of parking spaces allotted for the Premises Improvements to below 50 parking spaces. C9i ® ARTICLE VIII. IMPROVEMENTS 8.01 premises Improvements. The Lessee shall at all times be responsible for the maintenance and operation of Premises Improvements. 8.02 Signs. The Lessee shall have the privilege to install on the Premises as many signs in the format of its own designation as permitted by the Lessor or other governmental body havingjurisdiction over the proposed signs. Lessor's approval of signage shall be required. ARTICLE IX. NI.A JNTEN.k�CE, REPAIRS Ai D ALTER�iATIONS 9.01 By Lessor. Lessor shall maintain the grounds and the landscaping materials adjacent to the Premises and throughout the Common Areas of Bayland Island; including the daily expenses associated with cleaning and maintenance of the parking lot as well as maintenance of parking lot lighting. 9.02 By Lessee. Lessee agTees at its : `.vn cost and expense to maintain the Premises and the Premises Improvements in full compliance �� ith all codes, rules and re-ulations of the City of Baytown as well as all other governrrmental entities having jurisdiction over the Premises and the Premises Improvements. All maintenance, repair, alteration, and/or construction 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 ofone 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. In no event shall Lessee have the right, authority or power to bind Lessor or any interest of Lessor in the Premises for any claim for labor or material or for any other charge or expense incurred in the maintenance; construction, repair or alteration of the Premises Improvements. ARTICLE X. INSURAt`CE 10.01 Lessee's Insurance. From and after the Effective Date and throughout the Term of this Lease, Lessee will keep and maintain, or cause to be kept and maintained, in force and effect insurance against claims for inj uries to or death o f persons or damages to property which may arise out of or result from the construction, operation, repair, or maintenance of the Premises Improvements and ® all activities associated there�� ith, whether such construction. operation, repair or maintenance be 7 ® performed by Lessee, its agents, representatives, employees, subcontractors, assigns, or anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable. Lessee's insurance coverage shall be primary insurance with respect to Lessor, its officials, employees and agents. Any insurance or self-insurance maintained by Lessor, its officials, employees or agents shall be considered in excess of Lessee's insurance and shall not contribute to it. Further Lessee shall cause all subcontractors to furnish separate certificates and endorsements for each such person or entity. All coverages for subcontractors shall be subject to all of the requirements stated herein. 10.02 Policies and .41inimum Limits. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Lease: Commercial General Liability i General Aggregate: 52,000,000 i Per Occurrence: S 1,000,000 Owners' and Contractors' Protective Liability: S 1,000,000, during construction and all renovations thereafter of the Premises Improvements. Products & Completed Operations Aggregate: 52,000,000 i Personal & Advertising Injury: 51,000,000 Liquor Liability Endorsement (only required if alcoholic beverages are sold For consump::on on or off the Premises) Coverage shall be at least as broad as 1SO CG 00 01 10 93 i No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. i Coverage shall include pollution coverage up to the policy limits. 10.03 4dditional Coverages. In the event that Lessor's City N'lanager in his sole discretion determines that the activities or operations to be conducted or conducted on the Premises necessitates additional coverages, the Lessor reserves the right to insist upon additional coverages with limits deemed, appropriate by Lessor's risk manager, including; but not limited to, the following coverages: i Boiler and Machinery/1-lechanical Equipment Coverages; i Amusement Ride Liability; and Pollution Liability. ]n lieu of providing such additional coverages, Lessee may cease the activities or operations which necessitate the additional coverages as determined by the Lessor's City 1lanager. 10.04 Requirements applicable to all Policies. The following shall be applicable to all policies of insurance required herein: a. Insurance carrier must have an A.vl. Best Rating of A: VI or better. b. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. S 0 • C. Liability policies must be on occurrence form. d. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided; canceled or reduced in coverage or in limits except after sixty (60) days' prior written notice by certified mail, return receipt requested, has been given to Lessor. e. Lessor and its officers and employees are to be added as additional Insured to liability policies. f. Upon request, and without cost to Lessor, certified copies of all insurance policies and/or certificates of insurance shall be furnished to Lessor. �. Upon request, and without cost to Lessor, loss runs (claims listing) of any and/or all insurance coverage shall be famished to Lessor. h. all insurance required herein shall be secured and maintained in a company or companies satisfactory to Lender and Lessor, and shall be carried in the name of ide copies of insurance policies required hereunder to Lessee. Lessee s': all prov Lessor on or before the Effective Date. The amounts ofall required insurance shall be reviewed by the City ofBaytown's risk manager on the fifth (�`h) anniversary date of this Lease and each fifth (5`h) year thereafter and shall be increased, if necessary, so that the amount of such coverage is at all times generally equal to the limits described herein measured in year 2003 dollars. .=ARTICLE `CJ. INDEININTTY 11.01 Indemnity. LESSEE HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, PROTECT AND DEFEND LESSOR, ITS OFFICERS, AGENTS, A1fD EMPLOYEES (THE `LESSOR PARTIES") 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 ATTORNEY'S FEES, FOR ANY INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO ANY PROPERTY INCURRED IN CONNECTION WITH ALL CLAIMS, INCLUDING ANY ACTION • • OR PROCEEDINGS BROUGHT, THEREON ARISING FROM, AS A RESULT OF, OR IN ANY WAY RELATED TO LESSEES Al ITS SUBTENANTS', ASSIGNEES', OFFICERS', AGENTS', EMPLOYEES', CONTRACTORS', GUESTS', AND/OR INVITEES' (THE "LESSEE PARTIES") USE OR OCCUPANCY OF THE PRf EMISES AND/OR PREMISES IMPROVEMENTS OR AOF THE ACTIVITIES OF ANY SUCH LESSEE PARTIES IN OR ON THE PREMISES, OR THE DESIGN OR CONSTRUCTION OF THE PREMISES INIPROVEyIENTS, WHERE SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE LESSOR PARTIES AND ANY OTHER PERSON OR ENTITY AND/OR BY THE JOINT OR SOLE NEGLIGENCE OF THE LESSEE PARTIES. IT IS THE EXPRESS INTENTION OF BOTH LESSOR AND LESSEE THAT THE INDEMNITY PROVIDED FOR IN THIS PAR=kGR-kPH IS AN INDEMNITY BY LESSEE TO I`DENI IFY, HOLD HARNILESS, PROTECT, ANDDEFENDTHE LESSOR PARTIES FROM (I) THE CONSEQUENCES OF THE NEGLIGENCE OF THE LESSOR P:AINTIES, WHERE THAT NEGLIGENCE IS .A CONCURRING CAUSE WITH THAT OF A!YY" OTHER PERSON OR ENTITYOF :.NY SUCH INJURY, DEATH OR D AyLaGE AND/OR (II) THE LESSEE PARTIES' SOLE AND/OR CONCURRENT NEGLIGENCE. FURTHERtiIORE, THE INDEMNITY PROVIDED FROM THIS P_ R--kGRaPH SHALL HAVE NO APPLICATIOti TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT OR LIABILITY WHERE THE INJURY, DEATH OR D.ANLAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE LESSOR. 11.02 Cozuisel. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE LESSOR M' REASON OF AN -Y OF THE :ABOVE, LESSEE FURTHER .AGREES AND COVENANTS TO DEFEND THE .ACTION OR PROCEEDING BN' LEGAL COUNSEL ACCEPTABLE TO THE CITY. 11.03 Evergreen. Non)-ithstandina anvthina to the contras' contained in this Lease Agreement, the indemait- provided in this section shall not terminate upon the termination or expiration of this Lease, but shall continue in full force and effect. ARTICLE XII. Deleted; 10 0 XIII. CONDEMNATION 13.01 Definitions. The following definitions apply in construing provisions of this Lease relating to a taking of all or any part of the Premises by eminent domain or inverse condemnation: a. Taking means any taking by eminent domain or by inverse condemnation or for any public or quasi -public use under any statute. The transfer of title may be either a transfer resulting from the recording of a final order in condemnation or a voluntary transfer or conveyance to the condemning authority or entity under threat of condemnation, in avoidance of an exercise of eminent domain. The taking shall be considered to take place on the day that Lessee is physically ousted of possession of the Premises by the condemning authon'r . b. Total taking means the taking of the fee title to all of the Premises. C. Substantial taking means the tak=ing of so much of the Premises that the remaining Leased Premises would not be economically and feasibly usable by Lessee, or the Premises improvements would be other than reasonably efficient or economic for Lessee's use all as determined by Lessee in its reasonable, good faith judgment. 13.02 .+notice. The party receiving anv notice of the kinds speci#ied below shall within fifteen (1 5) days of the date on which the party receiving such notice is aware of[ he intended taking, give the other party notice of the receipt, contents and date of the notice received: a. Notice of intended taking; b. Service of any legal process relating to condemnation of the Leased Premises or Premises Improvements; C. Notice in connection with any proceedings or negotiations with respect to such condemnation; and/or d. Notice of intent or willingness to make or negotiate a private purchase, sale or transfer in lieu of condemnation. 13.03 Representative of Each Party% Lessor and Lessee shall each have the right to represent its respective interests in each proceeding or negotiation %yith respect to a taking or intended taking and to mate full proof of its claims. Lessor and Lessee each as-rees to execute and deliver to the other anv instruments that may be required to effectuate or facilitate the provisions of this Leas: relating to condemnation. 13.04 Total or Substantial Taking. On a total taking; Lessee's obligation to pal, rent and maintenance fees shall terminate on the day of the total tak=ing of the Premises. If Lessee reasonably believes • that the taking is substantial under the definition appeanng herein. Lessee shall, by notice to ® Lessor given within ninety (90) days after Lessee first receives notice by any means of the intended taking, seek concurrence from Lessor in order to treat the taking as a substantial taking. If Lessee does not so notify Lessor, the taking shall be deemed a partial taking. This Lease shall end as of the date of the total taking, when title vests in a third party and all rentals, maintenance fees and other payments due shall be paid up to that date. • 13.05 Partial Taking- 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 the Lessor's opinion unsuitable for the business of the Lessee, then the Term shall end as of the date that title vests in such proceedings and rent shall be adjusted to the date of the termination. L -t the event of a partial taking or condemnation that is not extensive enough to render the Premises in Lessor's opinion unsuitable for the business of the Lessee, then Lessee shall promptly restore the 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. 13.06 :4ward far Total Taking. On a total taking, the award therefor shall be distributed and paid to Lessee and Lessor as their respective interests under this Lease may appear. The following matters shall be used in determining the respective interests of Lessor and Lessee: a. The interest of Lessor shall be based on the value of Lessor's interest in real property of the Premises; and b. The interest of Lessee shall be based on the value of Lessee's Premises Improvements and its leasehold interest in the Premises, if expressly awarded. 13.07 Award for Partial Taking. In the event of partial taking, Lessor shall be entitled to a portion of the award equal to the value of the real property of the Premises and the fee simple title to the remaining portion of the Premises, and Lessee shall be entitled to a portion of the award equal to the value of the Premises Improvements and its leasehold interest in the Premises if expressly awarded. In such event; this Lease shall remain in full force and effect covering the remaining portion of the Premises. After the partial taking, Lessee shall, subject to the rights l t each Lender, promptly commence reconstruction of the improvements damaged by such partial taking to as near a condition as existed prior to such taking as is practicable and thereafter diligently prosecute the same to completion. Lessee understands and agrees that subject to the rights of the Lender, Lessee hereby commits to expend all amounts received by Lessee by reason of the partial taking on the Premises in order to return the Premises and Premises Improvements to as near e condition as existed prior to such taking. Lessor understands and agrees that Lessee will not be required under this Lease to expend more than the actual amount received by reason of the partial taking. Should any reconstruction be necessary, Lessee must obtain Lessors prior written approval of the plans for reconstruction, which approval shall not be unreasonably ;vithheld. 1 �' ® 13.08 Temporary Taking. On any taking of the temporary use of all or any part or parts of the Premises riod, or of any estate less than the fee, ending on or or Premises Improvements or both for a pe before the expiration date of the Term, neither the Term nor the rent shall be reduced or affected in any way, and Lessee shall be entitled to any award for the use or the leasehold estate taken. If any such taking is for a period extending beyond the expiration date of the Term, the taking shall be treated under the foregoing provisions for total, substantial and partial takings. • ARTICLE XIV. CO`ENION AREA MAI`iTENANCE 14.01 iY(aintenance. 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 hiah level and shall be conducted and performed by the Lessor on a continuing basis. ARTICLE XV. NIORTGAGES AND ESTOPPEL CERTIFICATES 15.01 Lessee's Mortgages. Lessee s;: 11 not have the right to mortgage and encumber its leasehold estate, but shall have the right to mortgage and encumber personal property, fixtures, trade Fixtures, special finish items, equipment, furniture and merchandise located in or upon the Premises. 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 ageements. b. Notices. That Lessor will Qive 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 mariner and be subject to the provisions of Section 16.02 and 19.02 of this Lease; C. XfortgaJee'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 aPreement upon such personal properry, all such liability being hereby expressly waived by Lessor. 13 15.02 Lessor's Right to Sell or rLtortgage. 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; 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. 15.03 Statement of Pe?formance. Lessor agrees to furnish Lessee; and any of the Lessees mortgagees, upon written request therefore. a statement wherein Lessor shall, if true, under oath, acl Knowledge 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 Lessors knowledge as of said date €he leasehold estate hereby created and granted to Lessee is free of all defaults hereunder (or ifdefaults 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 a -v st itement subsequently issued hereby shall %vaive any of the Lessor's rights to enforce any o1'the provisions of this Lease against the Lessee. ARTICLE XVI. LEASE DEFAULTS 16.01 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 pa4, lent of money due under this lease within seventy-rr.vo (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 by this lease 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 reasonable be cured within the fhfteen (1 5) day period; it Lessee does not commence curative work v. ithin the fifteen (15) day period and prosecute the work to completion with 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 barilcruptcy or insolvency, thea the Lessor may immediately without any notice terminate this Lease; or 0 ® (d) Makes an assignment of the Premises 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. 16.02 Notice of Default. 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-rwo (72) hours from the receipt of the notice, provided that if: (i) Lessor is required to give the Lessee notice of nonpayment of rent three (3) times in any twelve-month period, and each of the notices contains a reminder of the substance of this subpart 9.02(x), 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. 4 (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 discretion of the Lessor. 16.03 Lessor's Remedies. If any such default occurs and is not cured within the time allowed by Section 16.02, 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 all other rights and remedies provided by the laws of the state of Texas or equity or under this Leases to which Lessor may resort cumulatively or in the alternative, shall have the following options: (a) Immediately to re-enter and remove all persons and property from the Premises with or without termination of the Lease. Such property maybe demolished and/or removed and when possible 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 Quilty of trespass, or becoming liable for any loss or damage which maybe occasioned thereby. Such re-entering and removal of persons or property from the • Premises shall not be deemed to preclude Lessor from exercising any other options 15 is granted by this Lease, nor shall it relieve Lessee from the payment of any sum then due to Lessor or from any claim for damages previously accrued or then accruing against Lessee. Should this Lease be terminated in part based upon Lessee's default during Term, Lessee shall not be entitled to any proration or rebate of any advance rental payments made. (b) To proceed for past due installments, reservingits 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 re-enter the Premises and to re -let the Premises in the manner set forth below (e) To avail itself of any rights under the Iaws of the S€ate of Texas to evict Lessee and obtain occupancy of the Leased Premises and to recover any past due rent and damages until the Leased Premises shall have been released, all as more fully provided in Section 17.04 hereafter. 16.04 Re-enter Premises. Should Lessor elect to re-enter, under any provision of this Lease, or should Lessor take possession pursua:.' to legal proceedings or pursuant to any notice provided for by law, the Lessor shall have the right and the ability to demolish or to make alterations and repairs that the Lessor determines are reasonably necessary in order to re -let the Premises and may re -!e[ 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 alterations, repairs or demolition of the Premises improvements; second, to the payment of any indebtedness other than rent due from Lessee to Lessor; third, to the payment of the unpaid maintenance fees; and fourth, to 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 mariner 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. It is expressly understood and agreed, however, that the Lessor shall be under no obligation to mitigate and minimize the damages suffered by the Lessor or the amounts that shall be due by Lessee hereunder. 16.05. Reservation of Rights. 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 V ® 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. 16.06 Declaration of Default by Lessor. Any and all defaults 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 Article XVI 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 Section 16.02. (b) As to the disputed part of the default, the Lessee shall either: (i) Remedy the alleged default within the time allowed by Section 16.02 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 Furnish the Lessor within the time allowed by Section 16.02 with security approved by tl,e Lessor as adequate in amount to cure the default if a default is ultimately deter<<iined 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), or certificates of deposit issued by a national banl: and shall be held by a national bards approved by the Lessor as agent or custodian for the parties. 16.07 Payment on Default. If Lessor is compelled or elects to pay any sum of money or do any acts that require the payment of money by reason of the Lessee's failure or inability to perform any of the provisions of this Lease after passage of any notice and cure period provided under any other Lessee shall, within ten (10) days of the demand therefor, reimburse provisions of this Lease Lessor for such reasonable, actual sums. and all such sums shall bear interest at the Default Rate (as defined below) from the date of expenditure until the date of such reimbursement. Other sums payable under this Lease that are not paid by Lessee when due shall bear interest at the same rate from and after the payment due date until the date Lessor receives payment thereof. The Default Rate as used herein shall be defined as the prime rate as determined by Southwest Band: of Texas or its assigns, or tlyelve percent (12%) per annum, whichever is Greater. ARTICLE \VII. EXPIRATION; TER IINAT1ON 17.01 .Lessee's Duty to Surrender upon Expiration. At the expiration of the Term of this Lease, Lessee • shall surrender to Lessor possession of the Leased Premises, together with all personalty located 17 • • on that portion of the Leased Premises. Prior to the expiration of the Term of this Lease, Lessee shall have the right to remove the Premises Improvements and other personaltyowned by Lessee. Lessee shall leave the surrendered portion of the Leased Premises, including the improvements thereon, in a good condition subject to ordinary wear and tear as determined at the sole discretion of the City Manager, except as expressly provided to the contrary in other provisions of this Lease. Lessee shall be responsible for all damage to the improvements occasioned by such removal. All property that Lessee is required to surrender shall become Lessor's property at the expiration of the Lease. All property that Lessee is not required to surrender but that Lessee fails to remove after expiration of this Lease shall be deemed abandoned, and Lessor, at its election, has the right to take possession of such property or charge Lessee for the removal or demolition of the same. IF LESSEE FAILS TO SURRENDER ANY PORTION OF THE PREMISES AT THE EXPIRATION OF THE TERM OF THIS LEASE, LESSEE SHALL DEFEND AND INDEM�iIFY IN ACCORDANCE WITH ARTICLE XI LESSOR, ITS OFFICERS, AGENTS, AND EMPLOYEES, FRONI ALL LIABILITY AND EXPENSE RESULTING FROM THE DELAY OR FAILURE TO SUIRRENDER INCLLFDING, WITHOUT LIMITATI CSN. CLAIMS MADE BY ANY SliCCEEDING LESSEE FOUINMED ON OR RESULTING FROM LESSEE'S FAILURE TO SURRENDER. 17.02 Lessee's Dury to Surrender ►;non Termination. At the germination of this Lease, Lessee shall surrender to Lessor possession of the Leased .Premises. Within thirry (30) days of the termination, Lessee shall surrender to Lessor the Leased Premises. Within the thirty -day time period, Lessee shall have the HEht and obligation to remove from the Leased Premises all Premises Improvements. Lessee shall leave the surrendered Leased! Premises in a good condition subject to ordinary wear and tear as dete,,v nined by the City lana2er, except as expressly provided to the contrary in other provisions of this Lease. Lessee shall be responsible for all damage to the Premises occasioned by such removal. All property that Lessee is required to surrender shall become Lessor's property upon the termination. All proper -Ly that Lessee is not required to surrender but that Lessee fails to remove within the th';irty (30) day period shall be deemed abandoned; and Lessor, at its election, has the rizht to take possession of such property or charge Lessee for the removal or demolition of the same. I IF LESSEE FAILS TO SURRENDER THE .AFFECTED PORTION OF THE PREMISES AS REQUIRED HEREIN, LESSEE SHALL DEFEND AND INDEMNIFY IN ACCORDANCE WITH ARTICLE M LESSOR, ITS OFFICERS, AGENTS, AND E-NIPLOYEES, FROM ALL LIABILITY AND EXPENSE RESULTING1FRONI THE DELAY OR FAILURE TO SURRENDER INCLUDING. WITHOUT LIN11TATION1 is 10 CLAIMS MADE BY ANY SUCCEED INGIESSEE FOUNDED ON OR RESULTING FRON1 LESSEE'S FAILURE TO SURRENDER. 17.03 Holding Over upon Expiration. upon the expiration of the Term of this Lease, the Lease shall terminate without further notice at expiration of the Term. Any holding over by Lessee after expiration shall not constitute a renewal or extension or give Lessee any rights in or to the Premises except as otherwise expressly provided in this Lease. If Lessee and Lessor are in good faith negotiations for an extension of the Lease or for a new lease, which negotiations shall in no event exceed sixty (60) dans, Lessee shall pay, as liquidated damages; the then current fair market rental value of the Premises and the improvements thereon, as determined by the Lessor; calculated on a per diem basis, multiplied by rwo (2) for the period during which Lessee possesses the Leased Premises beyond the expiration hereof. Such amount is reasonable in the light of the anticipated or actual harm to Lessor caused by the Lessee's holding over, the difficulties of proof of loss, and the inconvenience of othervise obtaining an adequate remedy. 17.04 Holding Over upon Termination. Any holding over by Lessee after termination of any portion of this Lease shall not constitute a renewal or extension or give Lessee any rights m as liqq to the affected portion of the Leased Premises. Should Lessee hold over, Lessee shall paw uidated damages, the then current fair market rental value of the affected portion of the Leased Premises and theimprovements thereon, .:s determined by the Lessor, calculated on a per diem basis, multiplied by two (2) for the period during which Lessee possesses the affected portion of the Leased Premises beyond the termination hereof. Such amount is reasonable in the light of the anticipated or actual harm to Lessor caused by the Lessee's holding over, the difficulties of proof of loss, and the inconvenience of otherwise obtaining an adequate remedy. ARTICLE \VIII. REPRESENTATIONS AND `v.ARR--INTIES 18.01 Lessee's Representations and Warranties. Lessee represents and warrants that: a. As of the execution date of this Lease, Lessee is a limited partnership organized and validly existing under the laws of the State of Texas. and has the power and authority to carry on its business as presently conducted and as contemplated to be conducted on the Leased Premises by this Lease and to enter into and perform its obligations under this Lease; and the execution, deliver and performance by Lessee of this Lease has been duly authorized by all necessary action. b. As of the execution date of this Lease, the execution, delivery and perfo ance of this Lease by Lessee will not violate Lessee's organizational documents. ® 18.02 .Lessor's Representations and Warranties. Lessor represents and warrants that: C7 a. Except as disclosed to Lessee in writing, as of the Effective Date of this Lease, Lessor is the record owner of the Premises. b. As of the Effective Date of this Lease, Lessor has all power and has obtained all necessary consents, votes and approvals for the authority necessary to enter into and perform under this Lease. C. As of the Effective Date of this Lease, to the best of Lessor's knowledge, the Premises has free access to and from public streets and roads; there is no known pending or threatened condemnation action pertaining to the Premises; and no known pending or threatened action which would result in the termination of such access to and from public streets and roads. d. Lessor has not executed any lease covering the Premises which has not been terminated or the terra of which has not expired. ARTICLE XJX- iMISCELLANEOUS 19.01 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. Not -withstanding any assignment or sublease, Lessee shall remain dually liable on this lease and shall not be released from performing any of the terns, covenants and conditions of this lease. 19.02 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 Lessor when received at: City of Baytown Attn: City'Nianager P.O. Box 41-4 Baytown, Texas 77522 Fax: 420-6586 20 ® (b) To Lessee when received at Lessee's office: Angel Brothers Enterprises, Ltd. Attn: President P.O. Box 570 Baytown, Texas 77522 Far: 421-5796 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 if furnished in writina to Lessor at least fifteen (15) days prior to the date of the notice. Any party may change the address for the etvtng of notices to it by giving at least fifteen (15) days written 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 ilar communications are regularly received. Notice given by either mailgrams or teleams or sim mail shall be deemed given three (3) days after the date of the mailing of the same to the above - referenced address. 19.03 Entire ,lareement. This lease, including the exhibits hereto, contains all the agreements bettiveen the parties hereto with respect to the Premises and may not be modified orally or to any other mariner other than by an agreer,lent in writing, signed by all the parties hereto or their respective successors in interest. 19.04 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. 19.05 Headins. The headings as to contents or particular articles or sections herein are inserted only for convenience, and they are in no wav to be construed as a part of this lease or as a limitation on the scope of the particular sections to which they refer. 19.06 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. 19.07 Rent on Termination. Upon any termination of this Lease, all rent paid but not earned shall not be refunded. 19.OS 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 fr om performing its obligations hereunder. 21 19.09 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 "E," 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. Any expenses of recordation of such Memorandum shall be borne by the Lessee. 19.10 Payment of Lega! 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 on a dispute berveen Lessor and Lessee, the party asainst 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. 19.11 TexasLaw, The construction, interpretation and performance of this Agreement shall be governed by the laws of the State of Texas. 19.12 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 Hams County, Texas, or in the United States District Court for the Southern District of Texas, Houston, Harris County, Division. 19.13 Liquidated Damages. Both the Lessee and the Lessor aa -Tee 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, related 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 funkier agree that such damage cannot be accurately measured and that ascertainment will be difficult. Therefore, as part of the consideration for the awarding of this lease, the parties agree that for each and every calendar day any payment due hereunder or any portion thereof remains delinquent as set forth in the lease, the Lessor may charge and the Lessee shall pay as part of the monthly lease amount owed the sum of one hundred dollars (S 100) as minimum liquidated damases. However, the foreaoina 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 richt to recover such amount from the Lessee, all such remedies shall be cumulative and the Lessor shall not be required to elect anyone nor deemed to have made an election by proceeding to enforce any one remedy. 19.14 Litter and Pollutants. 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. ible for ensuring that all fire fighti 19.15 Fire System. The Lessee shall be responsng systems and equipment is regularly inspected and remains in the highest degree of readiness. 19.16 No right to use marina. The Lessee shall have no right pursuant to this Agreement to any boat slips located at the marina at Bayland Island. 19.17 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 Aareement, charter or applicable state law. 19.18 Severabiliry. 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 hull force and effect. 19.19 No Third Parry Beneficiaries. This Agreement shall not. bestow any rights upon any third party, but rather, shall bind and benei- Lessee and the Lessor only. 19.20 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 behalfof 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. 19.21 Nonmerger of Fee and Leasehold Estates. Not-1.vithstanding any other provision of this Lease to the contrary, if both Lessor's and Lessee's estates in the Premises or the improvements or both become vested in the same owner, this Lease shall nevertheless not be destroyed by application of the doctrine of merger or any contrary provision of this Lease construable as requiring merger except at the express written election of Lessor. 19.22 Right to Inspect Premises. The Lessor has the right to inspect the Leased Premises at all reasonable times during the period of this Agreement or any extension thereof to ensure compliance with the terms and conditions of this Agreement. 19.23 Ambiguities. In the event of any ambiguity in any of the terms of this Lease, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 19.24 Non-6Yaiver. Failure of either party hereto to insist on the strict performance of any of the agreements contained herein or to exercise any rights or remedies accruing hereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to 23 enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. 19.25 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 19.26 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. ATTEST: 7/A G R :' W. SMITH1 Y Cit Clerk APPROVED AS TO FORM: Gr4P"(41ACIO RAMIREZ, S , City Attorney 24 LESSEE GAR e President Angel Brothers Enterprises, Ltd. LESSOR of PETE C. ALFARO, MayKr City of Baytown, Texas STATE OF TEXAS COUNTY OF HARRIS Before me on this day personally appeared Gary Angel in his capacity as Vice President of Angel Brothers Enterprises, Ltd., on behalf of such limited partnership, 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 Notary day of February, 2004. ublic in and for the Sta of exas F:\Karen\Files\Contracts\Bayland Island\GroundLeasewSaleofBuildingRecoveredNoSectionsClean.doc 25 �i.33 _s v OtIC. 9.04 r � � i- 0.?4 5.52 IRS." Alt CJ CQtIC. �.0 to .0 a 2 1,.58 55.�j �.8a a.•: 0-535o i.9. 10.27 -0.[56:',s.as LEASE E70LINDhRY 10.29 j '•mak !` ,.• to.s7 c �1 �, relt,l rl0 /5101 1 ) 9.-y \ �,• r' U\ \ ? >l It C�rf10. 1/A i 2.0: x.77 F,�,�r, ' 4.5 5 .1 5 - Z`� ' _- C vgt Y Sy "��..T 4$11121. T / ' } l0 Epi 11.05 �/ ` JI''•' .. CLECIPIC r 3 OR2550- Dot C V n •t1 ;1 �? II. t? G',1��`'C \ 1V•e c 11.81.71 QtC� 11,94 / 5.5 % 4 55 14.10 3- 11.3'2 \� r t.� 'Ul.tf• Ia .83a.0 Jra f �7rtt. , 7 it ,.1.7^ .- S3 6.0'. 11 .35 ?.03J\ ` t2.ii:, �53 10.80 1127 1 x,77 5.4 5.4r 5.9012.38 SAVE AND EXCEPT r: I,I r 12.40 - s I 5 STOttE ` / r 14.A•• WILDING �• 12.44 1? 3? 1 ! f', L0or. SIEPS j' 1 i' •.. I 4.4 i 15.86 �tl e7 ?'n fjVE7,lFla CO Cn „ 1?.EO / ! un�OgUd DE f. t: ' f_._r. 73 11 05 / 1 j cc C,�raC ' OF OLE s I� 'i 41nE1e.11_ : t� • ? Cotic 1? 17r.P i if y1 t2. 7C1 , 13.01 70 16.56 7 \ �o E 13.58 �: CtCCTRIi t:'• .: IS.?,2 ... Va.3B 1}.3G i' '� 79 PANEL t30Y Ga; 110.11 OW', STEPS 13.2(:: _ [;. t NF1 1.7: i _ a i9 11307 _ 17;4 1•i IMC / i ►� •1 3.:'::; ?.9S tt ` CIECTP?IC. 1 �C U`Ir ( y b Y 1� 13.01 ��' i5 : f;l 1 13.00 � BOX 1` �'4Ca;lt 1Lu.,1 ut, colic. ] ' ` �..1.01ir i r" l I •' _`. 7 tf cot,c. '1 t5: t s t .I IQII cu1.1: I:E4r, f ;:. ��_� J�• � r-.C;tPUr<:.ul Gun.0lnl" n:asJ ,:, 4� `. � �'�.?n lh•� ( �; ` i ;aSs 13.56 �� J l - F. TAI.+P 1 I �'i �3 c� •-��\7 I?.R.A .� Il �� r. _ 13.17�d „ n, \:. la.- -- `-- -u- =5.71=.T %� ,., e E,. ►. c , f +has.. � 1; /� " or �j qnC. 9l 13.81 a SI'Al•� 1A 7: 1 1' GC + 945 _ 9.?G 7Qr' lig R•+rua 11 79 / \ // 11 6, E IBI C • Exhibit "D" BILL OF SALE STATE OF TEXAS § § K_NOW AI..L PERSONS BY THESE PRESENTS: COUNTY OF HARRIS § THAT the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, Seller, inconsideration of the payment of the sum of ON -E HUN17DRED FIFTY-SEVEN THOUSAND SEVEN HUNDRED AND N0I100 DOLLARS (5157,700.00), receipt of payment acicnowledaed, does hereby sell and transfer to Angel Brothers Enterprises, Ltd., Buyer, a Texas limited partnership located at 5210 West Road, Bavtown, Texas 77521, the following described personal property located in Harris County, Texas. No real property is conveyed by virtue of this Bill of Sale. The building previously utilized as a restaurant located on real property commonly referred to as Bayland Island and as more specifically depicted in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes; 1. The personal propt2rty, which is more particularly described in Exhibit "B," which is attached hereto and incorporated herein for all intents and purposes. (collectively hereinafter referred to as the "Property"). THAT SELLER IS SELLING ONLY SUCH RIGHT OR TITLE TO THE PROPERTY BEING SOLD AS SELLER t1v1AY HAVE ON THE DATE THIS AGREEMENT IS EXECUTED RIND DISCLA.L v1S A.NY" WARRANTY OF TITLE TO THE PROPERTY. THAT SELLER 1v1AKES NO REPRESENTATIONS THAT THE PROPERTY SPECIFIED HEREINABOVE BEING SOLD IS FREE OF THE RIGHTFUL CLA2ti1 OF A_NY THIRD PERSON BY WAY OF 2,4TRLNGENIENT, OR OF [�NFRLNGEMENT OF PATENT OR TRkDEMARK OR THE LUKE, AIND DISCLARIS :6�7Y W.kR A_Nt TY AGA.12114ST 1NFRINGE'NIENT WITH RESPECT TO THE PROPERTY. SELLER HAS PERFORMED OR CAUSED TO BE PERFORMED Ail EN1 GIVEERLNG STUDY ON THE STRUCTURkL. INTEGRITY OF THE BU[ DING FACILITY, LN bV­HICH THE ENG \TEER OPEN -ED THAT THE FACILITY" DOES NOT MEET THE REQUISITE WIND -LOAD REQUIlZEIMENTS AND THE STRUCTURE WOULD F:kIL AT WENDS OF LESS TH_��I 100 MILES PER HOUR AND r THE STRUCTURE SHOULD NOT BE OCCUPIED BY AVYO TE 1F WINDS WERE FORECAST TO BE Lel EXCESS OF 50-1AU_ES A_N HOUR. BUYER HAS BEEN GIVEN THE OPPORTUNITY TO REVIEW THIS REPORT, ASSUti1ES ALL RISKS ASSOCLATED WITH THE BUILDING WAIVIES :�v-D RELEASES THE CITY FROM ALL CLA24S. A.ND/OR CAUSES OF ACTION %,N'7IICH BUYER OR ANY OF ITS ... I .1 . (1..._.. I Exhibit "D" ® SUCCESSORS, AGENTS, ENIPLOYEES, TiWITEES OR GUESTS MAY HAVE AGAINST SELLER BASED UPON THE STRUCTURAL INTEGRITY OF THE BUILDING. SELLER HAS MADE NO AFFIRMATION OF FACT OR PROviISE RELATT iG TO THE PROPERTY SPECIFIED HERENABOVE BEING SOLD THAT HAS BECOME ,AUNTY BASIS OF THIS BARGAIN. FURTHER, SELLER HAS MADE NO AFFIRMATION OF FACT OR PROMISE RELATL IG TO THE PROPERTY BEING SOLD THAT HAS CREATED OR AMOUNTED TO AN EXPRESS WARRANTY THAT THE PROPERTY WOULD CONFORM TO ANY SUCH AFFIRMATION OR PROMISE. IT IS SPECIFICALLY AGREED THAT THE PROPERTY SPECIFIED HEREINABOVE SOLD BY THIS AGREEMENT IS SOLD WITHOUT A�iY WARR -NTY OF MERCHANTABILITY. THAT SELLER DISCLEVIS ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSES WHATSOEVER WITH RESPECT TO THE PROPERTY BEE14G SOLD UNDER THIS AGREEMENT. THAT THE PROPERTY" DESCRIBED IN THIS AGREEMENT IS SOLD ON AN "AS IS,, AND "WITH ALL FAULTS" BASIS, AND SELLER DISCLAD/iS ANY LNIPLIED W.kRRA-NTIES WITH RESPECT TO THE PROPERTY. BUYER HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, PROTECT AND DEFEND SELLER, ITS OFFICERS, AGENTS, AND EMPLOYEES (THE "SELLER PARTIES") 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 ATTORNEY'S FEES, FOR ANY INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO ANY PROPERTY INCURRED IN CONNECTION WITH THE PROPERTY CONVEYED HEREIN, INCLUDING ANY ACTION OR PROCEEDINGS BROUGHT THEREON, ARISING FROM, AS A RESULT OF, OR IN ANY WAY RELATED TO BUYER'S OFFICERS', AGENTS', EMPLOYEES', CONTRACTORS', GUESTS', AND/OR INVITEES' (THE "BUYER PARTIES") USE OR OCCUPANCY OF THE PROPERTY AND/OR THE PREMISES UPON WHICH SUCH PROPERTY IS LOCATED OR ANY OF THE ACTIVITIES OF ANY SUCH BUYER PARTIES WITH RESPECT TO THE PROPERTY, OR IN THE DESIGN OR CONSTRUCTION OF THE PROPERTY, WHERE SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE SELLER PARTIES AND ANY OTHER PERSON OR ENTITY AND/OR BY THE JOINT OR SOLE Bill nf'Salt. Pace '- • Exhibit "D" NEGLIGENCE OF THE BUYER PARTIES. IT IS THE EXPRESS INTENTION OF' BOTH SELLER AND BUYER THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY BUYER TO INDEMNIFY, HOLD HARMLESS, PROTECT, AND DEFEND THE SELLER PARTIES FROJIVI (I) THE CONSEQUENCES OF THE NEGLIGENCE OF THE SELLER PARTIES, INHERE THAT NEGLIGENCE IS A CONCURRING CAUSE WITH THAT OF ANY OTHER PERSON OR ENTITY OF ANY SUCH INJURY, DEATH OR DAMAGE AND/OR (II) THE BUYER PARTIES' SOLE AND/OR CONCURRENT NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FROM THIS PARAGR4PH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DA-NIAGE, CAUSE OF ACTION, SUIT OR LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE SELLER. IN THE EVENT THAT AsNY ACTION OR PROCEEDING IS BROUGHT AGAINST THE SELLER BY J%` F-ASON OF .ANY" OF THE ABOVE, BUYER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. This Bill of Sale shall be effective as to the transfer of all property listed in it as of the day of Februarv, 2004. N WITNESS WHEREOF, this Bill of Sale is executed on this the day of Februarv, 2004. Bill of sa!e. Page SELLER: CITY OF BAYTOtiVN, TEXAS PETE C. ALFARO, Mayor BUYER: .=,NrGEL BROTHERS ENTERPRISES, LTD. GARY ANGEL, Vice President • Exhibit "D" STATE OF TEXAS § COUNTY OF HARRIS § Before me, the undersigned authority, on this day appeared PETE C. ALFARO, Mayor of the City of Baytown, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the instrument for the purposes and consideration expressed in the instrument. Given under my hand and seal of office on this the , day of February, 2004 Notary Public in and for the State of Texas STATE OF TEXAS § COUNTY OF HARRIS § Before me, the undersigned authority, on this day appeared GARY ANGEL, Vice President of Angel Brothers Enterprises, Ltd., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the instrument for the purposes and consideration expressed in the instrument. Given under my hand and seal of office on this the _ day of February, 2004 Notary Public in and for the State of Texas ivly commission expires: 9 F:1Karcn\Filc$%ConMaclS\Bavland Island\Bi11ot5alc4Res tauran(NI'ersonalFropertyPungels.doc Bill of Sale, Pave 4 0 illi EXHIBIT A Ilii M:1-372 rn -6-5-6-6 NI 1k 1 uw� o�! all jl � .:..'l`Q �i\�_lo ell, 7) ' Exhibit "B" • ® City of Baytown Bayland Island Inventory @ 1126/2004 r Restaur On Hand 1 2 1 1 1 1 3 3 1 1 1 1 5 1 1 3 2 1 1 Int cyuiN as I —„ .... .. . ,, Descriotion Item Cost Total Cost Brand Name Model No. Ansul fire system 5,717.00 5,717.00 Pyrochem NMCH Supreme jocky box 793.00 1,586.00 Dishtable U shaped with prewashed sink 2,915.00 2,915.00 Stainless steel three shelf rack for trays (approx 21' long) 1,289.00 1,289.00 Stainless steel L - shape table wlcoke machine (8 dispensers) 1,855.00 1,855.00 Shelf and pot rack equipment mounted to walls 2,214.00 2,214.00 Drain board 140.00 420.00 Beer boxes wlsoda dispenser 490.00 1,470.00 Four compartment bar sink 835.00 835.00 Advance mop sink 9 -OP -20 wlk-24;; `aucet 498.00 498.00 Walk - in cooler (approx 21') 15,400.00 15,400.00 Kysor/Needham Walk - in freezer (approx 8' } See above Kysor/Needham Stainless steel hand washing sink 166.77 833.85 Stainless steel two compartment sink - Two compartment sink (appox 7' ) 1,895.00 1,895.00 Stainless steel table wlsheives(approx 3' ) 458.00 1,374.00 Stainless steel hoods (two rows) 11,580.00 23,160.00 Wall decorations 15,000,00 15,000.00 Stainless steel three compartment sink 2,421.00 2,421.00 78.882.85 2/2/2004 Gayland Island Inventor/ 1.26-04 Revisedl.xls