Ordinance No. 10,231ORDINANCE NO. 10,231
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, REPEALING ORDINANCE NO. 10,061 ADOPTED ON APRIL 28,
2005, WHICH AUTHORIZED AN AMENDMENT TO THE LEASE OF
PREMISES CONCERNING A PORTION OF BAYLAND ISLAND TO
PROVIDE ADDITIONAL AREA FOR THE DEVELOPMENT OF OUTSIDE
AMENITIES TO COMPLEMENT THE OPERATION IN THE FORMER
RESTAURANT BUILDING AND TO IMPOSE DIFFERENT
ENVIRONMENTAL OBLIGATIONS ON THE LESSEES; AUTHORIZING
AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY
CLERK TO ATTEST TO AN AMENDMENT TO THE LEASE OF PREMISES
CONCERNING A PORTION OF BAYLAND ISLAND WITH ANGEL
BROTHERS ENTERPRISES, LTD., BAYLAND ISLAND DEVELOPMENT,
L,C., AND BAYLAND ISLAND BEVERAGE, INC., TO RELEASE ANGEL
BROTHERS ENTERPRISES, LTD., FROM ITS OBLIGATIONS UNDER THE
LEASE AND TO PROVIDE ADDITIONAL AREA FOR THE
DEVELOPMENT OF OUTSIDE AMENITIES TO COMPLEMENT THE
OPERATION IN THE FORMER RESTAURANT BUILDING AND TO
IMPOSE ENVIRONMENTAL OBLIGATIONS ON THE LESSEES; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby repeals
Ordinance No. 10,061 adopted on April 28, 2005, which authorized an Amendment to the Lease
of Premises Concerning a Portion of Bayland Island with Angel Brothers Enterprises, Ltd.,
Bayland Island Development, L.C., and Bayland Island Beverage, Inc., to provide additional
area for the development of outside amenities to complement the operation in the former
restaurant building and to impose different environmental obligations on the Lessees.
Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes
and directs the City Manager of the City of Baytown to execute and the City Clerk to attest to an
Amendment to the Lease of Premises Concerning a Portion of Bayland Island with Angel
Brothers Enterprises, Ltd., Bayland Island Development, L.C., and Bayland Island Beverage,
Inc., to provide additional area for the development of outside amenities to complement the
operation in the former restaurant building and to impose different environmental obligations on
the Lessees. A copy of said amendment is attached hereto, marked Exhibit "A," and made a part
hereof for all intents and purposes.
Section 3: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
•
• INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 22 "d day of December, 2005.
CALVIN MUNDINGER, Mayor
APPROVED AS TO FORM:
CI�ACIO RAMIREZ, SR., C t Attorney
• RAKarenTiles \City Council \Ordinances120051December 22\ AmendmentoE DaylandLeaseforAdditionalProperty &ReleaseofAngels.doc
•
•
AMENDMENT TO THE LEASE OF PREMISES CONCERNING A PORTION OF
BAYLAND ISLAND
STATE OF TEXAS §
COUNTY OF HARRIS §
KNOWN BY THESE PRESENTS:
This Amendment to the Lease of Premises Concerning a Portion of Bayland Island
( "Amendment "), is made by and between the City of Baytown, a home -rule municipal
corporation, located in Harris and Chambers Counties, Texas ( "Lessor "), Angel Brothers
Enterprises, Ltd., a Texas limited partnership, Bayland Island Development, L.C., a Texas
limited liability corporation, and Bayland Island Beverage, Inc., a Texas corporation on the date
hereinafter last specified.
WITNESSETH:
WHEREAS, on the 12`h day of February, 2004, the City Council authorized the sale of
the existing building, previously used as a restaurant facility at Bayland Island (the "Structure ")
and an accompanying ground Lease (the "Lease ") with Angel Brothers Enterprises, Ltd.
( "Lessee "); and
WHEREAS, the Angel Brothers Enterprises, Ltd. sold the Facility and subleased the
Lease to Bayland Island Development, L.C. ( "Sublessee ") effective on the 12`h day of August,
2004; however, pursuant to the terms of the Assignment and Sublease of Lease of Premises to
Bayland Island Development, L.C., Lessee remained liable under the Lease; and
WHEREAS, Sublessee subleased the premises to Bayland Island Beverage, Inc.,
( "Subtenant "); however pursuant to the terms of the Consent to Sublease, Lessee and Sublessee
also remain liable under the Lease; and
WHEREAS, Lessee and Sublessee have requested that the City release Angel Brothers
Enterprises, Ltd., from the obligations under the Lease; and
WHEREAS, Subtenant has requested that the Lease be amended to add additional
property which includes lands owned by the Lessor, which has been dedicated as a conservation
easement, in order to add recreational improvements, which may include a volleyball court and a
swimming pool; and
WHEREAS, Lessor is amenable to allowing Angel Brothers Enterprises, Ltd., to be
relieved of its obligations under the Lease; and
WHEREAS, Lessor is also agreeable to grant the Sublessee and Subtenant the privilege
to use the Additional Premises under the terms and conditions stated herein;
Amendment, Page 1
is
NOW THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained, the parties hereto do hereby mutually agree as follows:
I.
In General
1.01 Agreement. All of the terms and conditions contained in the Lease shall apply to the
Additional Premises along with the terms and conditions expressed herein. Should any
term or condition in this Amendment conflict with the Lease, this document shall control.
1.02 Interpretation. Unless a different meaning clearly appears from the context, words and
phrases as used in this Amendment shall have the same meanings as in the Lease. All
obligations of the Lessee as stated herein shall also be obligations of the Sublessee and
Subtenant and shall be binding on all such parties.
1.03 Non - Waiver, Release. By this Amendment, the City does not consent to litigation or suit,
and the City hereby expressly revokes any consent to litigation that it may have granted
by the terms of this Agreement or any other contract or agreement, any charter, or
applicable state law. Lessee hereby releases, relinquishes and discharges the City, its
officers, agents, and employees from all claims, demands, and causes of action of every
kind and character, including the cost of defense thereof, for any injury to or death of any
person (whether they be either of the parties hereto, their employees, or other third
parties) and any loss of or damage to property (whether the property be that of either of
the parties hereto, their employees, or other third parties) that is caused by or alleged to
be caused by, arising out of, or in connection with this Amendment regardless of whether
said claims, demands, and causes of action are covered in whole or in part by insurance.
1.04 Authori . The officers executing this Agreement on behalf of the parties hereby confirm
that such officers have full authority to execute this Agreement and to bind the party
he /she represents.
II.
Amendment
2.01 Article I of the Lease is hereby amended by adding a new section to be numbered 1.005
to add a definition of the term "Additional Premises," which shall read as follows:
1.005 Additional Premises: The real property more particularly
described in Exhibit "C -2," which is attached hereto and
incorporated herein for all intents and purposes.
Amendment, Page 2
2.02 Article I, Section 1.04 of the Lease is hereby amended to read as follows:
1.05 Lessee: Angel Brothers Enterprises, Ltd., as well as its successors
and assigns, which shall include, but not be limited to, Sublessee
and Subtenant.
2.03 Article I, Section 1.07 of the Lease is hereby amended to read as follows:
1.07 Premises: The real property upon which the Premises
Improvements are located as described in Exhibit "C -I," which is
attached hereto and incorporated herein for all intents and
purposes, along with the real property more particularly described
in Exhibit "C -2," which is attached hereto and incorporated herein
for all intents and purposes. Premises is further described in
Article III hereof.
2.04 Article I11, Section 3.01 of the Lease is hereby amended to read as follows:
3.01 Premises. Except as expressly provided to the contrary in this
Lease, reference to "Premises" is to the land described in Exhibits
"C -1" and "C -2" located in the City of Baytown, Harris County,
Texas.
2.05 Article III, Section 3.02 of the Lease is hereby deleted in its entirety, as the survey
required therein is incorporated into this Amendment as Exhibit "C -L"
2.06 Article II1, Section 3.03 of the Lease is hereby amended to read as follows:
3.03 Disclosure. BAYLAND ISLAND CONTAINS AN AREA OF
ENCAPSULATED SPOILS. A PORTION OF THE ISLAND,
WHICH INCLUDES BUT IS NOT LIMITED TO THE
PREMISES IS WETLANDS AND UTILIZATION IS
RESTRICTED.
2.07 Article III of the Lease is hereby amended by adding a new section to be numbered and
entitled "Environmental Obligations," which shall read as follows:
3.04 Environmental Obligations. Lessee may not in any manner
whatsoever use or construct or place anything on the
Additional Premises, without first obtaining the Lessor's prior
written approval for the specific use, construction or
placement requested. To obtain the Lessor's approval, the
Lessee shall tender all applicable permits to the Lessor to
evidence compliance with all applicable laws, rules and
. regulations of the United States, the State of Texas, Harris
County, the City of Baytown and any other lawful authority
Amendment Page 3
• having jurisdiction. Lessee shall be required to obtain a
nationwide or individual permit as required by the United
States Corps of Engineers, and /or their rules and regulations.
If no nationwide or individual permit is required by the United
States Corps of Engineers, and /or their rules and regulations,
Lessee must tender to the Lessor written proof from the Corps
of Engineers that no individual or nationwide permit is
required for the specific use, construction or placement
proposed prior to any such use, construction or placement. If
mitigation is required, such mitigation shall not be performed
on property of the Lessor without the Lessor's prior written
consent.
2.08 Article VII, Section 7.03 of the Lease is hereby amended to read as follows:
7.03 Lessor's Covenant of Title. Subject to the disclaimers contained
herein, 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.
2.09 Article VII, Section 7.04 of the Lease is hereby amended to read as follows:
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 -3," which is attached hereto and
incorporated herein for all intents and purposes. Lessee
understands and agrees that throughout the Term of this Lease, the
parking areas and the modes of ingress and egress may be changed
from time to time at the sole option of the City Manager; 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.
2.10 Article XVI, Section 16.01 of the Lease is hereby amended to read as follows:
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 to make any other
payment of money due under this lease within seventy -two
• (72) hours after written notice of the failure shall have been
given to Lessee; or
Amendment, Page 4
• (b) Defaults in the performance of any obligation imposed
upon Lessee by this Lease, other than by subsections (a)
and (e) of this section and does not cure the default within
fifteen (15) days after written notice describing the default
in reasonable detail shall have been given Lessee (or, if the
Lessor in its sole discretion, 'determines that the default
cannot reasonably be cured within the fifteen (15) day
period, if Lessee does not commence curative work within
the fifteen (15) day period and prosecute the work to
completion with diligence); or
(c) Institutes proceedings, whether voluntary or otherwise,
under the provisions of the Federal Bankruptcy Act or any
other federal or state law relating to bankruptcy or
insolvency, then the Lessor may immediately without any
notice terminate this Lease; or
(d) Makes an assignment of the Premises for the benefit of
creditors, then Lessor may immediately and without notice
terminate this Lease and/or exercise any other rights or
remedies available as a matter of law.
(e) Violates any provision contained in Section 3.04, then
Lessor may immediately and without notice terminate this
Lease and/or exercise any other rights or remedies available
as a matter of law.
2.11 Article XIX, Section 19.01 of the Lease is hereby amended to read as follows:
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. If assigned in
accordance with this section, the Lessee shall be released from
performing the terms, covenants and conditions of this lease.
111.
Lessee's Release of Obligations
The Lessor hereby agrees to release Angel Brothers Enterprises, Ltd., from performing
the terms, covenants and conditions of the Lease. However, it is expressly understood that
Bayland Island Development, L.C., and Bayland Island Beverage, Inc., shall be considered the
Lessee and shall assume all responsibilities of Lessee under the Lease. Bayland Island
• Development, L.C., and Bayland Island Beverage, Inc., may not assign the Lease in whole or in
part or sublet all or any part of the Premises without the prior written consent of the Lessor.
Amendment, Page 5
U
IV.
Effective Date
The effective date of this Amendment shall be , 2005, the date that
the this amendment is signed by the City Manager.
IN WITNESS HEREOF, the parties have executed this agreement in duplicate originals
at Baytown, Farris County, Texas.
ATTEST:
KELVIN KNAUF, Interim City Clerk
APPROVED AS TO FORM:
I NACIO RAMIREZ, S ity Attorney
Amendment Page 6
CITY OF BAYTOWN
GARY JACKSON, City Manager
ANGEL BROTHERS
ENTERPRISES, LTD.
Signature
Printed Name
Title
•
•
BAYLAND ISLAND
DEVELOPMENT, L.C.
Signature
Printed Name
Title
BAYLAND ISLAND BEVERAGE,
INC.
Signature
Printed Name
Title
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, the undersigned notary public, on this day
personally appeared , the of ANGEL
BROTHERS ENTERPRISES, LTD., on behalf of such limited partnership
known to me;
proved to me on the oath of ; or
proved to me through his/her current
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person)
(check one)
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.
Amendment, Page 7
® Given under my hand and seal of office this day of
STATE OF TEXAS §
COUNTY OF HARRIS §
2005.
Notary Public in and for the State of
Texas
My commission expires:
Before me, the undersigned notary public, on this day
personally appeared , the of BAYLAND
ISLAND DEVELOPMENT, L.C., on behalf of such corporation
known to me;
proved to me on the oath of ; or
proved to me through his/her current
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person}
(check one)
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
STATE OF TEXAS §
COUNTY OF HARRIS §
2005.
Notary Public in and for the State of
Texas
My commission expires:
Before me, the undersigned notary public, on this day
personally appeared , the of BAYLAND
ISLAND BEVERAGE, INC., on behalf of such corporation
known to me;
proved to me on the oath of ; or
proved to me through his/her current
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person}
(check one)
® 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.
Amendment Page 8
• Given under my hand and seal of office this day of , 2005.
Notary Public in and for the State of
Texas
My commission expires:
• R:\Karen\ Files\ Cont racts\ Sayland1sland \AmendedAgreemen14MoreLand& Revised EndvonmentalWithoulAngelsR.doc
Amendment, Page 9
�y T MAR-23-2004 (TOR) 11;11 281 UO ONO P. 002
Rx Date /lite 281 °30 0220 P.02,02
.0 rT -R -23 -2004 31 02
LAND SURVEYING INC.
vtya 10:n gut
LEASE TRACT DESCRIPTION
Being 0.3903 acres of land out of a called own a54recordedan I;areiseCo my deed ClerkseFi a Number
20, 1979 from B.F.B., Inc. to City of E'yt
G388038 of the Deed Records of Harris County, .Texas. Said 0.2903 acres being located in the
William Scott Upper League, Abstract No. 66, Eaytcwn, Harris County. Texas and being more
particularly described by metes and bounds as follows: (note: All bearings are based on Lambert
grid bearings and 2i coordinates refer to the Texas State Plane Coordinate System -South
Central Zone NA
COMMENCING at a 2 inch galvanized pipe found for the west corner of a called 12.34 acre trail
conveyed by deed dated March 31, 1 °95 to the City of Baytown as recorded in Harris County
354555 of the Deed Records of Harris County, Texas, same being the west
Clerks File Number 8
corner of a called 0 oo acre ttract
ksvFYe d Number 9 August l o P
M310862oftheDeedRecords ofHarris
as recorded in Harris
County, Texas, same being in the south line of State Highway 146 (R.O.W. Varies) and having a
State Plane Coordinate Value of "Y"= 705,022.15 and "X "= 3,269,733.81;
THENCE South 470 acres, for ' a di�tance the southwest
54 feet to a point for corner,
and the northeast
line of said 10. O
THENCE South 420 10' 40" West, for a distance of 351.19 feet to a point for the PLACE OF
BEGINNING of the herein described tract having a State Plane Coordinate Value of 'Y"=
703,738.09 and "X -= 3,27001.60.
THENCE South 87° 52' 53" East, for a distance of 57.16 feet to a point for corner,
THENCE South 020 07' 14" West, for a distance of 2625 feet to a point for corner;
THENCE South 870 55' 48" East, for a distance of 17.98 feet to a point for corner,
THENCE South 01° 53'33' West, for a distance of 15.97 feel 10 a point for corner;
THENCE South 87" 56' 34" East, for a distance of 53.78 feet to a point for comer;
THENCE South 01" 05' 05" West, for a distance of 107.23 feet to a point for corner,
THENCE South 530 54' 44" West, for a distance of 10.97 feet to a point for corner;
THENCE South 01° 43' 24" West, for a distance of 19.13 feet to a point for corner.
THENCE North. 870 42' o3" West, for distance of 73.74 feet to a point for comer;
THENCE North 021 13' 00" East', for a distance of 57.56 feet to a point for comer;
THENCE North 870 53' 09" West, for a distance of 48.79 feet to a point for corner,
THENCE North 020 07' 14' East, for a distance of 117.50 feet to the PLACE OF BEGINNING of
herein described tract of land and containing within these calls 0.3903 acres or 17,002 square
feet of land.
WITNESS M AND D SEAL THIS THE 26T" DAY OF FEBRUARY.
02/23/04 .4
Scot owe R. L.S. No. 5007 OF r.
�trr- d19T�r
(Metes and Bounds Description prepared
•
in conjunction with Survey Flat dated ..................
February 25, 2004. Fro)ed No. 04012) S.CO�OWE J„
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EXHIBIT C -1 aoeab S -1Le--
2:LD�«�l•cci: a.,
Exhibit "C -2"
FIELD NOTE DESCRUMON
1.778 ACRES
PROPOSED LEASE SITE
Being a 1.778 acre tract ortion of a calleda45.3774tacre tract rlpel of land Upper
s described n deed to the City
Texas, and being a p
of Baytown recorded described din Harris er and bounds as follows; . G388038, said 1.778 aac tract being more
particularly iron COMMENCING at a 4' acre tract as described ribedein deedatoethe City of Baytown record d in Hams County
corner of a called 12.3
Clerks File No. R354555, and the westerly corner of a called 10.00 acre tract as described in deed to he
Roy E. Pearce recorded in Harris County Clerks File No. M310862;
THENCE S 47 049'20" E, along the southwest line of the said called 12.34 acre tract, a distance of 156454
feet, to a point for corner;
THENCE S 42'10'40' W, a distance of 351.19 feet, to a point for corner;
THENCE S 02"07'14" W, a distance of 117.50 feet, to a point for corner;
THENCE S 87 053'09" E a distance of 2.78 feet, to the POINT OF BEGINNING of the herein described
tract;
THENCE S 87 053'09" E, a distance of 48.79 feet, to a point for corner of the herein described tract; `
THENCE S 02'13 00 dicta ce of
ribed tract; .23 feet, to a 112" iron rod with plastic cap stamped "RPLS
4980" set for comer o f the herein
THENCE N 80 021'00" W, a distance of 158.33 feet, to a 1/2" iron rod with plastic cap stamped "RPLS
4980" set for corner of the herein described tract;
THENCE N 1 ]'11'59" E, a distance of 153.662 feet, to a 1/2" iron rod with plastic cap stamped "RPLS
4980" set for corner of the herein described ,
THENCE N 84 010'17" W, of 7 trams et, to a 1R" iron rod with plastic cap stamped "RPLS
4980" set for corner of the herein described
THENCE N 85 °14'22" W, a distance of 291.84 feet, to a point for corner of the herein described tract;
THENCE N 40 °42'46" W, a distance of 35.29 feet, to a point for corner of the herein described tract;
THENCE N 27`46'21" E, a distance of 15.28 feet, to a point for corner of the herein described tract;
THENCE N 75"16'45" E, a distance of 36.13 feet, to a point for corner of the herein described tract;
Page 1 of 2
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'BFNCE S 85 °35'31" E, a distance of 738.75 feet, to a point for corner of the herein described tract;
THENCE N 72`06'57" E, a distance of 20.04 feet, to a point for corner of the herein described tract;
THENCE N 11 °11'59" E, a distance of 39.88 feet, to a point for corner of the herein described tract;
THENCE S 80 021'00" E, a distance of 52.57 feet, to a point for corner of the herein described tract;
THENCF, S 02'07'14" W, a distance of 46.57 feet, to a point for corner of the herein described tract;
THENCE S 69 °37'21" W a distance of 16.79 feet, to a point for corner of the herein described tract;
THENCE S 20 022'39" E, a distance of 25.00 feet, to a point for corner of the herein described tract;
THENCE N 69 °37'21" E, a distance of 22.15 feet, to a point for corner of the herein described tract;
THENCE N 02'07'14" E, a distance of 36.44 feet, to the FOINT OF BEGINNING, containing a calculated
area of 1.778 acres of land. -1-1
.P G....
t ERF
O
s
4ES R. MCCLFLLAN
:09 4980 P
. MCCL MIAN
R. NO.4980
2005
NOTE: This field note description is part of the plat of same date. The bearings shown hereon are
referenced to State Plane Coordinate System, South Central Zone, NAD 83.
Page 2 of 2
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DRAWING OF EXHIBITS C--1 4
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