Ordinance No. 9,850ORDINANCE NO. 9850
• AN ORDINANCE OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING
AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO
ATTEST TO AN ASSIGNMENT AND SUBLEASE OF THE LEASE OF
PREMISES PERTAINING TO A PORTION OF BAYLAND ISLAND TO
BAYLAND ISLAND DEVELOPMENT, L.C.; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section l: That the City Council of the City of Baytown, Texas, hereby authorizes
and directs the Mayor and City Clerk of, the City of Baytown to execute and attest to an
Assignment and Sublease of the Lease of Premises pertaining to a portion of Bayland Island to
Bayland Island Development, L.C. A copy of said Assignment and Sublease is attached hereto,
marked Exhibit "A" and incorporated herein for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 12"i day of August, 2004.
CALVIN MUNDINGER, Mayor
ATTEST:
&L-5mlm-
GJARYOW. — SMITH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, R , City Attorney
46 \ \Bdc2\litigation \Karen \Files \City Council\ Ordinances \SubleaseBayl and lslandOrd.doc
Assignment and Sublease of Lease of Premises to
Bayland Island Development, L.C.
STATE OF TEXAS
COUNTY OF HARRIS §
This Assignment and Sublease of the Lease of Premises (this "Assignment and Sublease"
"Agreement ") is made this 12'h day of August, 2004, by and among the City of Baytown, a
municipal corporation located in Harris and Chambers Counties, Texas (the "CITY "), Angel
Brothers Enterprises, Ltd., a Texas limited partnership ( "LESSEE ") and Bayland Island
Development, L.C., a Texas limited liability corporation, with a permit to engage in business in
the State of Texas ( "SUBLESSEE ").
WITNESSETH:
WHEREAS, on the 12'h of February, 2004, the City Council of the CITY
authorized the sale of the existing building, previously used as a restaurant facility
at Bayland Island (the "Stricture ") and an accompanying ground lease (the
"Lease ") with LESSEE; and
WHEREAS, LESSEE desires to sell the Facility and sublease the Lease to
SUBLESSEE effective the 12`h day of August, 2004; and
WHEREAS, on the 12"' day of August, 2004, LESSEE sent a letter to the
CITY requesting the CITY to consent to the assignment and sublease the Lease to
Sublessee;
NOW, THEREFORE, in consideration of the foregoing and in consideration of the
mutual promises, covenants and agreements herein contained, the parties agree hereto as follows:
I.
Assignment, Sublease and Assumption
Pursuant to paragraph 19.01 of the Lease, LESSEE hereby subleases the premises subject
to the Lease and assigns all of its rights and obligations under the Lease effective August 12,
2004, to SUBLESSEE; and SUBLESSEE hereby assumes all of LESSEE's rights and
obligations under the Lease prior to and after the effective date of the assignment. LESSEE
expressly understands and agrees that notwithstanding this assignment and assumption, LESSEE
shall remain dually liable under the Lease and is not to be released from performing any of the
• terms, covenants and conditions contained therein. The Lease is attached hereto as Exhibit "A"
and incorporated herein by this reference for all intents and purposes.
EXl MIT A
Assi rnment and Sublease, Page I
• ns
Consent
Pursuant to paragraph 19.01 of the Lease and subject to the conditions listed herein, the
CITY hereby consents to the assignment of all of LESSEE's rights and obligations under the
Lease to SUBLESSEE and the assumption of such rights and obligations by SUBLESSEE;
provided that LESSEE remains dually liable on this lease and is not hereby released from
performing any of the terms, covenants and conditions contained in the Lease. It is expressly
agreed that the consent given in this article is subject to the following terms and conditions:
(a) The CITY shall have the authority to collect any underpayments of rent,
maintenance fees or any other fees directly from LESSEE and SUBLESSEE who
are jointly and severally liable for such amount,
(b) The CITY shall have the authority to, and shall not be deemed to have waived the
right to, pursue and/or resolve any and all outstanding matters, including, but not
limited to, any breach of contract concerns;
(c) The CITY shall have the authority to require strict compliance with any and all
terms of the Lease;
(d) SUBLESSEE shall assume all obligations and liabilities under the Lease accruing
prior to and after the date of the effective date of this Assignment and Sublease;
(e) LESSEE and SUBLESSEE or any entity acting by, through, or on behalf of either
party shall not contest the CITY's authority to impose these additional conditions
on the consent granted herein.
III.
No Expansion of Rights
Notwithstanding any language in the Lease or this Assignment and Sublease to the
contrary, the CITY's consent granted herein shall not be deemed to expand the rights and
privileges specified in the Lease and originally granted to LESSEE.
IV.
Notice
All notices required to be given under this Assignment and Sublease or the Lease shall be
given in writing either by telecopier, overnight, or facsimile transmission, certified or registered
mail at the respective addresses designated hereinbelow or at such other address as may be
designated in writing by LESSEE, SUBLESSEE or the CITY. Notice given by mail shall be
40 deemed given three (3) days after the date of mailing thereof to the following addresses:
Assignment and Sublease, Pale 2
0
SUBLESSEE
Bayland Island Development, L.C.
Attn: President -
P. 0. Box 1157
Baytown, TX 77522
Fax: (281) 837 -6943
LESSEE
Angel Brothers Enterprises, Ltd.
Attn: President
P.O. Box 570
Baytown, Texas 77522
Fax: (281) 421 -5796
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
Fax: (281) 420 -6586
V.
Further Assurances
LESSEE, SUBLESSEE and the CITY shall execute such additional agreements as may
be reasonably necessary in the opinion of the CITY to reflect the foregoing assignment,
assumption, and consent among the parties hereto.
VI.
Severability
All parties agree that should any provision of this Assignment and Sublease be
determined to be invalid or unenforceable, such determination shall not affect any other term of
this Assignment and Sublease or the Lease, which shall continue in full force and effect.
VII.
Ambiguities
In the event of any ambiguity in any of the terms of this Assignment and Sublease or the
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.
Assignment and Sublease, Page 3
•
VIII.
Agreement Read
The parties acknowledge that they have read, understand and intend to be bound
by the terms and conditions of this Assignment.
IX.
Author
The officers executing this Agreement on behalf of the parties hereby represent
that such officers have full authority to execute this Agreement and to bind the party
he /she represents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
multiple copies, each of which shall be deemed to be a .'original, but all of which shall
constitute but one and the same Agreement on the day of August, 2004, the date of
execution by the Mayor of the City of Baytown.
13, �4
�li�l�r r�haj�v
LESSEE
GARY ANGEL, Vice President
Angel Brothers Enterprises, Ltd.
LESS
Signature)
(Printed Name)
(Title)
• CITY
\1..
CALVIN MUNDINGER,
City of Baytown, Texas
ATTEST:
APPROVED AS TO FORM:
1� 3NACIO RAMIREZ, SRty Attorney
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
DANIEL R. ELKINS
Notary Public, State of Texas
My Commission Expires 06-11.2005
Texas
[Seal]
of August, 2004.
Notary Public in and for the State of
My commission expires:
STATE OF TEXAS §
COUNTY OF HARRIS §
• Before me, 5�,,5AN t4 NtoVCLre� the undersigned notary public, on this
day personally appeared J 'ti r•r,, in his/her capacity as
of Bayland Islan Development, L.C., on behalf of such
corporation,
J� known to me;
proved to me on the oath of ; or
through his/her current
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and
signature of the acknowledging person}
(check one)
to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he /she executed that instrument for the purposes and
consideration therein expressed.
Given under my hand and seal of office this day of August, 2004.
y
�4
MY COMMSSION EXPIRES
July 23, •f.
��wuuuwawuwwww�.�wwuuwwruwl
•
Notary Public in and for the State of
My commission expires: —a 6 - 0Z
STATE OF TEXAS
COUNTY OF HARRIS
Before me, �h/� — ih s the undersigned notary public, on this day
personally appeared co .v , in his/her capacity as
l
of Bayland Island Development, L.C., on behalf of such corporation,
known to me;
proved to me on the oath of
; or
through his/her current (description of
identification card or other document issued by the federal government or any
state government that contains the photograph and signature of the acknowledging
person }
(check one)
to be the person whose name is subscribed to the foregoin
that he/she executed that instrument for the purposes and
Given under my hand and seal of office thisA? d. of Au st, 2
urRtt;l.L S. Et. KITS x
vu„ry PuonC 3,, _ r„ ?exas
x..� Vy Guirriusa, m Extorts 06-11-2DD3
STATE OF TEXAS
COUNTY OF HARRIS
ent, and acknowledged to me
ion therein expressed.
No . ry ' blic in and for the S e of Texas
My commission expires: 6////7Oos
Before me on this day personally appeared Calvin Mundinger in his capacity as 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 same for the purposes and
consideration therein expressed.
odk—
SUBSCRIBED AND SWORN before me this day of August, 2004.
PATTI MERRELL
Notary Public, State of Texas
Commission Expires Nov. 27, 2004
Notary Public in and for the State of Texas
Assignment and Sublease, Page 6
® [Seal]
My commission expires:
0
\ 1B dc2V itigationU :aren\Files\Contmcts\Bayland IsIandW.csigm entofLcaseofPremises.doe
Assi nment and Sublease, Pagc 7
ORDINANCE 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 THOUS SEVEN
HUNDRED AND N0 1100 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 IslandS afeotResiaur3n [ & 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 AN -D N01100 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
m cted 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 �V � � Y OF TITLE TO THE PROPERTY�ENT IS
EXECUTED AvD DISCLAL�[S .��IY ERR
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�LyGE�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
, OF THEPBUiLDL�GFACILITY, L�I� �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, ASSiIt�IES
® 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 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 AGREEMENT.
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
Bilj ca1C. P1n_
•
NEGLIGENCE OF THE BUYER PARTIES. IT IS THE EXPRESS
INTENTION OF' BOTH SELLER. AND BUYER THAT THE
INDENINITY PROVIDED FOR IN THIS PARAGRAPH IS AN
INDEMNITY BY BUYER TO INDEMNIFY, HOLD H AR�4LESS,
PROTECT, AND DEFEND THE SELLER , PARTIES FROM (1) 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 Av-Y SUCH IN,3URX,
DEATH OR DAMAGE AND /OR (II) THE BUYER PARTIES' SOLE
AN`D /OR CONCURRENT NEGLIGENCE. FURTHERNIORE, THE
INDENINITY PROVIDED FROM THIS PARAGR -kPH SHALL HAVE
NO APPLICATION TO ANY CLAIN17 LOSS, DAMAGE, CAUSE OF
ACTION, SUIT OR LIABILITY WHERE THE INJURY, DEATH OR
DANIAGE RESULTS FRONT THE SOLE NEGLIGENCE OF THE
SELLER.
IN THE EVENT THAT AN-Y ACTION OR PROCEEDING IS BROUGHT
AGAINST THE SELLER BY k—: SON OF ANY OF THE ABOti`E, BUYER FURTHER
AGREES AND COY`EN:�NTS TO OFFEND TIME .ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO THE CITY.
This Bill of Sale shall be effective as to the transfer of all prope �ly listed in it as of the
day of February, 200-14.
LN. WITN -ESS WHEREOF, this Biil of Sale is executed on this the _ day of Febaiary,
2004.
SELLER:
CITY OF BAYTOWN. TEX-kS
PETE C.:kLFARO, flavor
BUYER:
,ANGEL BROTHERS ENTERPRISES; LTD.
G.A.RY ANGEL, Vice President
•
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, the undersigned authority, on this day appeared PETE C. ALFARO, tlayor 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., knon to me to be the person whose name is subscribed to the
foregoi wng 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
j,ylv commission expires:
F :\K,IrcnWilcs %Contracts\Baviand Island\8illoi5alc1RcstourantuPtrsonalProperryAnzciS ,duc
Rill of Salt. Paer
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•
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11
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11 Ir :jj C,
Exhibit "B'
• City of Baytown
Bayland Island Inventory @ 1126/2004
•
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,n_ ni no!rea
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
/mixer - attachment (buffalo chopper)
3,325.00
3,325.00
Hobart
1
Cheese cutter
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 PREyIISES
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This lease is signed on this day of February, 2004, bet-ween The City of Baytown, Texas,
a municipal corporation located in Hams and Chambers Counties, Texas ( "Lessor "), and Angel Brothers
Enterprises, Ltd., a Texas limited partnership having its principal place of business at 5210 Nest 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 TV.
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 fV.
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 ft') 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 Te= and any Option Terms.
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® 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
--ants 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, KIND 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
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® PLAN. 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 peri m od of 5 years. If Lessee elects to extend the Basic Ter for 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 (1) 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
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® 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 NLA-INTENANCE 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 N01100 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 notation 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, being
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 (12 111'0) per annum, whichever is greater. Such interest shall commence on the
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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.
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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," hereto and
which is attached
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.
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® 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 ALTERN ATIONS
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
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® 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.
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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
Lessee. Lessee s': all provide copies of insurance policies required hereunder to
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 (5`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
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OR PROCEEDINGS BROUGHT, THEREON ARISING FROM, AS A
RESULT OF, OR IN ANY WAY RELATED TO LESSEES Al"D ITS
SUBTENANTS', ASSIGNEES', OFFICERS', AGENTS',
EMPLOYEES', CONTRACTORS', GUESTS', AND /OR INVITEES'
(THE "LESSEE PARTIES ") USE OR OCCUPANCY OF THE
PR f EMISES AND /OR PREMISES IMPROVEMENTS OR A OF
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, AND DEFEND THE 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;
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1 III.
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 tvotice. 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 the intended taking, a-i� :e 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.
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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.
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® 13.08 Temporary Taking. On any taking of the temporary use of all or any part or parts of the Premises
Mod 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.
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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 Performance. 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 fifteen (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, then
the Lessor may immediately without any notice terminate this Lease; or
•
® (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 guilty 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
® anted 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, 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.
is
(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
provisions of this Lease Lessee shall, within ten (10) days of the demand therefor, reimburse
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 SURRENDER INCLLFDING,
WITHOUT LIMITATI CAN. CLAIMS MADE BY ANY SliCCEEDING
LESSEE FOUINMED ON OIL 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 right 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 propery 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) days, 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 other vise 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 the improvements 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
either mailgrams or teleams 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.
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 Texas Law, 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
damages. 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 right 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 respons ng 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
Agreement, 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
0 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.
LN1 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:
GARY W. SMITH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAtiIaEZ, SR., City Attorney
24
LESSEE
GARY ANGEL, Vice President
Angel Brothers Enterprises, Ltd.
LESSOR
PETE C. ALFARO, Mayor
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 day of February, 2004.
Notary Public in and for the State of Texas
F :\Karcn\Files%Contracts\Bayland Island \G round Lea c- Sal eoMuildinYRCCOVCrcdNQSC CLionsCle3n.doc
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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 property, 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 [�NTRINGEMENT OF PATENT
OR TRkDEMARK OR THE LUKE, AI ND DISCLARIS :6�7Y W,4R A_Nt TY AGA.12114ST
1NFRINGE'NIENT WITH RESPECT TO THE PROPERTY.
SELLER HAS PERFORMED OR CAUSED TO BE PERFORMED Ail EN1 GIVEERLNiG
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 IF WINDS WERE
FORECAST TO BE EN 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, CiWITEES 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 BEE 14G
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 BIND, 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\ Bi11ot5alc4 Res tauran (NI'ersonalFropertyPungels.doc
Bill of Sale, Pave 4
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' Exhibit "B"
•
® City of Baytown
Bayland Island Inventory @ 1126/2004
r
Restaur
On Hand
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2
1
1
1
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1
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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