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Ordinance No. 10,574 ORDINANCE NO. 10,574 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, CONSENTING TO THE SUBLEASE OF THE LEASED PREMISES AT BAYLAND ISLAND CONTINGENT UPON THE EXECUTION OF THE LEASE AMENDMENT APPROVED BY COUNCIL VIA ORDINANCE NO. 10,231; AUTHORIZING AND DIRECTING THE INTERIM CITY MANAGER TO EXECUTE A CONSENT TO SUBLEASE; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That contingent upon the execution of the Lease Amendment approved by Council via Ordinance No. 10,231, the City Council of the City of Baytown hereby consents to the sublease of the Lease of Premises Agreement from Bayland Island Development, L.C., to Harpword, LLC. Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the Interim City Manager to execute a Consent to Sublease. A copy of said consent 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 affirmativ ote of the City Council of the City of Baytown this the 22nd day of March, 2007. ST HEN H. DONCARLOS, Mayor ST:V LORPJ ODY, City Clerk APPROVED AS TO FORM: ICRAC10 RAMIREZ, SR. ity Attorney k:\Karen\Files\City Counc0\0rdinances\2007\March 22\Conscnt2Subleaseliaylandl larpword.doc CONSENT TO SUBLEASE WHEREAS, the CITY OF BAYTOWN, TEXAS, (hereinafter called Landlord) and BAYLAND ISLAND DEVELOPMENT, L.C., a Texas Limited Liability Corporation (hereinafter called Tenant), on the 12`h day of February, 2004, entered into a Lease Agreement, which was duly amended on March ;EA 2007, for the premises located at 2651 South Highway 146, Baytown, Harris County, Texas, (hereinafter referred to as the Main Lease), a copy of which Lease Agreement and its Amendments is attached hereto and incorporated herein by reference as Exhibit "A"; and WHEREAS, Tenant desires to enter into and grant a Sublease of the said premises at 2651 S. Highway 146, in Baytown, Harris County, Texas, to HARPWORD, LLC, a Texas Limited Liability Corporation, doing business as J J's WATERFRONT BAR AND GRILL (hereinafter called Sub-Tenant) for the purpose of selling food, alcoholic beverages and related items on said premises; and WHEREAS, Landlord is agreeable and desires to consent to said Sublease between Tenant and Sub-Tenant;NOW THEREFORE (1) It is hereby agreed that Landlord, CITY OF BAYTOWN, TEXAS, does hereby consent to the Sublease, a copy of which is attached hereto and incorporated herein by reference as Exhibit "B," between Tenant, BAYLAND ISLAND DEVELOPMENT, L.C., and HARPWORD, LLC, doing business as J J's WATERFRONT BAR AND GRILL, for the purpose of selling food, alcoholic beverages and related items at the premises located at 2651 S. Highway 146, in Baytown, Hams County, Texas; (2) Sub-Tenant, HARPWORD, LLC, does hereby agree to assume and perform all of the terms, obligations and conditions set forth and described in said Main Lease (Exhibit "A"); (3) Provided however, the consent of Landlord to the said Sublease shall not in any manner whatsoever relieve the Tenant, BAYLAND ISLAND DEVELOPMENT, L.C, from any of the terms, conditions, covenants and obligations set forth in said Main Lease described in Exhibit "A" herein. APPROVED AND AGREED to thisd3 day of , 2007. CITYZ YTOWN By: ober D.LLeipeAr, lnterim Ci anager BAYLAND ISLAND DEVELOPMENT, L.C. HARPWORD, LLC By: By: Ja x, Vice President/Manager J4erA ox, President/Manager Tenant -Tenant R:\Karen\Files\Contracts\Bayland Island\CONSENT TO SUBLEASE.doc Exhibit"A" REAL ESTATE SUBLEASE This Sublease Agreement(this"Sublease") is dated the day of March, 2007, by and between BAYLAND ISLAND DEVELOPMENT, L.C.("Landlord"),and HARPWORD,LLC, dlbla J J's WATERFRONT BAR & GRILL ("Tenant"). The parties agree as follows: This Sublease is made subject to all of the terms, conditions, duties, and obligations described in that certain Lease Agreement of February 12, 2004, and its Amendments of January 12, 2006, by and between the City of Baytown and Landlord, a copy of which is attached hereto and incorporated herein by reference as Exhibit"A". Sub-Tenant, HARPWORD, LLC, hereby agrees to be bound by and perform all of the terms, conditions and obligations contained therein just as BAYLAND ISLAND DEVELOPMENT, L.C. is bound to perform such terms, conditions and obligations contained therein. PREMISES. Landlord, in consideration of the lease payments provided in this Lease, leases to Tenant the building, parking lot and all amenities (the "Premises") located at 2651 S. Highway 146, Baytown, Texas. TERM. The primary lease term will begin on the day of 12007 and will terminate on , 2012. LEASE PAYMENTS. Tenant shall pay to Landlord as base rent, sixty (60) monthly installments of$7,000.00, each payable in advance on the first day of each month, for a total lease payment of$420,000.00. Lease payments shall be made to the Landlord at 623 W.Texas Avenue, Baytown, Hams County,Texas 77520,which address may be changed from time to time by the Landlord. POSSESSION. Tenant shall be entitled to possession on the first day of the term of this Lease, and shall yield possession to Landlord on the last day of the term of this Lease, unless otherwise agreed by both parties in writing. At the expiration of the term, Tenant shall remove its goods and effects and peaceably yield up the Premises to Landlord in as good a condition as when delivered to Tenant, ordinary wear and tear excepted. USE OF PREMISES. Tenant may use the Premises only for a restaurant or bar. The Premises may be used for any other purpose only with the prior written consent of Landlord, which shall not be unreasonably withheld. Tenant shall notify Landlord of any anticipated extended absence from the Premises not later than the first day of the extended absence. FURNISHINGS. The lease of the Premises includes the fixtures, furnishings and equipment listed on the attached exhibit. Tenant shall return all such items at the end of the lease term in a condition as good as the condition at the beginning of the lease term, except for such deterioration that might result from normal use of the fixtures,furnishings and equipment. PROPERTY INSURANCE.Landlord and Tenant shall each maintain appropriate insurance for their respective interests in the Premises and property located on the Premises. Landlord shall be named as an additional insured in such policies. Tenant shall deliver appropriate evidence to Landlord as proof that adequate insurance is in force issued by companies reasonably satisfactory to Landlord. Landlord shall receive advance written notice from the insurer prior to any termination of such insurance policies.Tenant shall also maintain any other insurance which Landlord may reasonably require for the protection of Landlord's interest in the Premises. Tenant is responsible for maintaining casualty insurance on its own property. LIABILITY INSURANCE. Tenant shall maintain public liability insurance on the Premises In a total aggregate sum of at least $1,000,000.00 per occurance and $2,000,000.00 aggregate.Tenant shall deliver appropriate evidence to Landlord as proof that adequate insurance is in force issued by companies reasonably satisfactory to Landlord. Landlord shall receive advance written notice from the insurer prior to any termination of such insurance policies. RENEWAL TERMS. This Lease shall automatically renew for an additional period of five (5) year per renewal term, unless either party gives written notice of termination no later than ninety(90)days prior to the end of the term or renewal term. The lease terms during any such renewal term shall be the same as those contained in this Lease, provided however,the rental payments may be adjusted by agreement of the parties upon 60 days prior written notice. MAINTENANCE. Landlord's obligations for maintenance shall include: (1) -the roof, outside walls, and other structural parts of the building Tenant's obligations for maintenance shall include: (1) -the parking lot, driveways, and sidewalks, including snow and ice removal (2) -the sewer, water pipes, and other matters related to plumbing (3) -the electrical wiring (4) -the air conditioning system (5) -all other items of maintenance not specifically delegated to Landlord under this Lease. UTILITIES AND SERVICES. Tenant shall be responsible for all utilities and services incurred in connection with the Premises. -2- TAXES. Taxes attributable to the Premises or the use of the Premises shall be allocated as follows: REAL ESTATE TAXES. Landlord shall pay all real estate taxes and assessments for the Premises. PERSONAL TAXES.Tenant shall pay all personal taxes and any other charges which may be levied against the Premises and which are attributable to Tenant's use of the Premises, along with all sales and/or use taxes (if any) that may be due in connection with lease payments. DESTRUCTION OR CONDEMNATION OF PREMISES. If the'Premises are partially destroyed by fire or other casualty to an extent that prevents the conducting of Tenant's use of the Premises in a normal manner,and if the damage is reasonably repairable within sixty days after the occurrence of the destruction, and if the cost of repair is less than $10,000.00,Landlord shall repair the Premises and a just proportion of the lease payments shall abate during the period of the repair according to the extent to which the Premises have been rendered untenantable. However, if the damage is not repairable within sixty days, or if the cost of repair is $10,000.00 or more, or if Landlord is prevented from repairing the damage by forces beyond Landlord's control,or if the property is condemned, this Lease shall terminate upon twenty days'written notice of such event or condition by either party and any unearned vent paid in advance by Tenant shall be apportioned and refunded to it. Tenant shall give Landlord immediate notice of any damage to the Premises. DEFAULTS. Tenant shall be in default of this Lease if Tenant fails to fulfill any lease obligation or term by which Tenant is bound. Subject to any governing provisions of law to the contrary, if Tenant fails to cure any financial obligation within ten (10) days (or any other obligation within ten (10) days) after written notice of such default is provided by Landlord to Tenant, Landlord may take possession of the Premises without further notice (to the extent permitted by law), and without prejudicing Landlord's rights to damages. In the alternative, Landlord may elect to cure any default and the cost of such action shall be added to Tenant's financial obligations under this Lease. Tenant shall pay all costs, damages, and expenses (including reasonable attorney fees and expenses) suffered by Landlord by reason of Tenant's defaults.All sums of money or charges required to be paid by Tenant under this Lease shall be additional rent, whether or not such sums or charges are designated as "additional rent". The rights provided by this paragraph are cumulative in nature and are in addition to any other rights afforded by law. LATE PAYMENTS.For any payment that is not paid within five(5)days after its due date, Tenant shall pay a late fee of$100.00. -3- HOLDOVER. If Tenant maintains possession of the Premises for any period after the termination of this Lease ("Holdover Period"), Tenant shall pay to Landlord lease payment(s)during the Holdover Period at a rate equal to the normal payment rate set forth in the Renewal Terms paragraph. CUMULATIVE RIGHTS. The rights of the parties under this Lease are cumulative, and shall not be construed as exclusive unless otherwise required by law. NON-SUFFICIENT FUNDS. Tenant shall be charged $100.00 for each check that is returned to Landlord for lack of sufficient funds. REMODELING OR STRUCTURAL IMPROVEMENTS. Tenant shall have the obligation to conduct any construction or remodeling (at Tenant's expense)that may be required to use the Premises as specified above. Tenant may also construct such fixtures on the Premises(atTenant's expense)that appropriately facilitate its useforsuch purposes.Such construction shall be undertaken and such fixtures may be erected only with the prior written consent of the Landlord which shall not be unreasonably withheld.Tenant shall not install awnings or advertisements on any part of the Premises without Landlord's prior written consent.At the end of the lease term,Tenant shall be entitled to remove(or at the request of Landlord shall remove) such fixtures, and shall restore the Premises to substantially the same condition of the Premises at the commencement of this Lease. ACCESS BY LANDLORD TO PREMISES. Subject to Tenant's consent(which shall not be unreasonably withheld), Landlord shall have the right to enter the Premises to make inspections, provide necessary services, or show the unit to prospective buyers, mortgagees,tenants or workers. However, Landlord does not assume any liability for the care or supervision of the Premises. As provided by law, in the case of an emergency, Landlord may enter the Premises without Tenant's consent. During the last three months of this Lease,or any extension of this Lease,Landlord shall be allowed to display the usual "To Let"signs and show the Premises to prospective tenants. INDEMNITY REGARDING USE OF PREMISES. To the extent permitted by law, Tenant agrees to indemnify, hold harmless, and defend Landlord from and against any and all losses, claims, liabilities, and expenses, including reasonable attorney fees, If any, which Landlord may suffer or incur in connection with Tenant's possession, use or misuse of the Premises, except Landlord's act or negligence. DANGEROUS MATERIALS.Tenant shall not keep or have on the Premises any article or thing of a dangerous,'flammable, or explosive character that might substantially increase the danger of fire on the Premises,or that might be considered hazardous by a responsible insurance company, unless the prior written consent of Landlord is obtained and proof of adequate insurance protection is provided by Tenant to Landlord. -4- COMPLIANCE WITH REGULATIONS. Tenant shall promptly comply with all laws, ordinances,requirements and regulations of the federal,state,county,municipal and other authorities,and the fire insurance underwriters.However,Tenant shall not by this provision be required to make alterations to the exterior of the building or alterations of a structural nature. MECHANICS LIENS. Neither the Tenant nor anyone claiming through the Tenant shall have the right to file mechanics liens or any other kind of lien on the Premises and the filing of this Lease constitutes notice that such liens are invalid. Further, Tenant agrees to (1) give actual advance notice to any contractors,subcontractors or suppliers of goods, labor, or services that such liens will not be valid, and(2)take whatever additional steps that are necessary in order to keep the premises free of all liens resulting from construction done by or for the Tenant. SUBORDINATION OF LEASE.This Lease is subordinate to any mortgage that now exists, or may be given later by Landlord,with respect to the Premises. ASSIGNABILITY/SUBLETTING. Tenant may not assign or sublease any interest in the Premises, nor effect a change in the majority ownership of the Tenant(from the ownership existing at the inception of this lease), nor assign, mortgage or pledge this Lease,without the prior written consent of Landlord,which shall not be unreasonably withheld. NOTICE. Notices under this Lease shall not be deemed valid unless given or served in writing and forwarded by mail, postage prepaid, addressed as follows: LANDLORD: BAYLAND ISLAND DEVELOPMENT, L.C. 623 W. TEXAS AVENUE BAYTOWN TX 77520 TENANT: HARPWORD, LLC, d/b/a J J'S WATERFRONT BAR & GRILL 2651 S. Highway 146 Baytown, Texas Such addresses may be changed from time to time by either party by providing notice as set forth above. Notices mailed in accordance with the above provisions shall be deemed received on the third day after posting. -5- GOVERNING LAW. This Lease shall be construed in accordance with the laws of the State of Texas. ENTIRE AGREEMENTIAMENDMENT. This Lease Agreement contains the entire agreement of the parties and there are no other promises, conditions, understandings or other agreements,whether oral or written,relating to the subject matter of this Lease.This Lease may be modified or amended in writing, if the writing is signed by the party obligated under the amendment. SEVERABILITY. If any portion of this Lease shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Lease is invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. WAIVER.The failure of either party to enforce any provisions of this Lease shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Lease. BINDING EFFECT. The provision of this Lease shall be binding upon and inure to the benefit of both parties and their respective legal representatives,successors and assigns. LANDLORD: EAY D I N D E M NT, L.C. By: Date: ' to 0 M L. DeFOYD, Presi ent/Manager TENANT: HARPWORD, LLC d/b/a J is WA ERFRONT BAR & GRILL By: , Pre Date: 3 0l JA OXsident/Manager -6- AMENDMENT TO THE LEASE OF PREMISES CONCERNING A PORTION OF BAYLAND ISLAND STATE OF TEXAS § § KNOWN BY THESE PRESENTS: COUNTY OF HARRIS § 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; EMIT A Amendment, Page I 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 Authority. The officers executing this Agreement on behalf of the parties hereby confirm that such officers have full authority to execute this Agreement and to bind the party he/she represents. 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-1," 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 III, 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-1." 2.06 Article III, 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. III. 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 IV. Effective Date The effective date of this Amendment shall be , 20_, 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, Harris County, Texas. CITY OF BAYTOWN ROBERT D. LEIPER, City Manager ATTEST: LORRI COODY, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR10C ty Attorney ANGEL BROTHERS ENTERPRISES, L Printed Name Title Amendment. Page 6 BAYLAND ISLAND DEVELOPMENT, L.C. Sig re Printed Name M Title BAYLAND ISLAND BEVERAGE, INC. S' atur Printed Name Mom , Title STATE OF TEXAS § COUNTY OF HARRIS § 1 Before me, OlOC� the undersigned nota public, on this day personally appeared , the VLCti Prc5 an of ANGEL BROTHER STERPRISE , L ., on behalf of such limited partnership 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 hape @A1 44 office this day of Q , 20�_( ����,�� ;••`I PUB('•.• c y _ Notary Public in an for the State of srq oF �. Texas '�, '•••..�:�:��o ���`� My commission expires: STATE OF TEXAS ���i�,>�itnmt�����`�\ COUNTY OF HARRIS § Before me, &4-,, 6 ck the undersigned notary public, on this day personally appeared Ta&D,! A k�„a„o , 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 o.�cl� , 20o9. KA7W D.FiOiM �nroowuass�on owut�s oclobet17,2DOd Notary PubW in and for the State of Texas My commission expires: o\k 0 8 STATE OF TEXAS § COUNTY OF HARRIS § Before me, Vjo` " , the undersigned notary public, on this day personally appeared So-so. u=-x , the Mo�►�o-c,�.� 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 Mc AAA , 20o-1. MYCOWWMEWRES r tl.20 Notary Public in and for the State of Texas My commission expires: 1011`1 o g R:\Karcn\Files\Contracts\Bayland Island\AmendedAgrcement4MorcLand&RcvisedEnvimnmentalWithoutAngelsR.doc Amendment,Page 9 R Dale Tine NCR- NOWNE) 11 : 11 N1 110 ha P. 00Z X � rPR-23-2004 11:02 LAND SL;t.EYING1 1NC. 281 030 0229 P.02/02 LEASE TRACT DESCRIPTION Being 0.3903 acres of land out of a called 45.3774 acre tract conveyed by deed dated November 20, 1979 from B.F.B., Inc. to City of Eaytown as recorded in Harris County Clerks File Number G388038 of the Deed Records of Harris County, Texas. Said 0.3903 acres being located in the William Scott Upper League, Abstract No. 66, Baytown, Harris County, Texas and being more particularly described by metes and bounds as fellows: (note:All bearings are based on Lambert grid bearings and all coordinates refer to the Texas State Plane Coordinate System . Scuth Central Zone NAD 27 COMMENCING at a 2 inch galvanized pipe found for the west corner of a called 12.34 acre tract conveyed by deed dated March 31, 1995 to the City of Baytown as recorded in Harris County Clerks File Number R354555 of the Deed Records of Harris County,Texas, same being the west corner of a called 10.00 acre tract conveyed by deed dated August 1, 1E89 to Le Roy E. Pearce as recorded in Harris County Clerks File Number M310862 of the Deed Records of 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 49' 20' East, along the southwest line of said 12.34 acres and the northeast line of said 10.00 acres, for a distance of 1564.54 feet to a point for corner; THENCE South 420 10, 40" Wen, fcr a distance of 251.19 feet to a point for the PLACE OF t3EGINNING of the herein described tract having a Slate Plane Coordinate Value of "Y"= 703.738.09 and "X"= 3,270,681.60. T HENCE South 87" 52' 53"East,for a distance of 57.16 feet to a point for corner, THENCE South 02" 07' 14"West,for a distance of 2625 feet to a point for corner; THENCE South 87" 55'48" East, for a distance of 17.98 feet to a point for corner, THENCE South 010 53' 33"West,for a distance of 15.97 feet to a point for corner; THENCE South 870 56' 34" East, for a distance cf 53.7$ feet to c Point fcr comer, THENCE South 010 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 87° 42' 03"West,for a distance of 73.74 feet to a point for comer; THENCE North 02" 13' 00" East, for a distance of 57.56 feet to a point for comer: THENCE North 870 53'09"Wiest,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 EEGINNING 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 25' DAY OF FEBRUARY, 2004 Revised 03/23/04 Scot owe R. .L.S. No. 5007 OF T (Nietes and Bounds Description prepared in conjunction with Survey Flat dated ..,...................... February 25.2004. Project No. 04012) SCOT LO) > J ..... .. 6007•..,. SU,, M EXHIBIT C-1 • Exhibit "C-2" FIELD NOTE DESCRIPTION 1.778 ACRES PROPOSED LEASE SITE Being a 1.778 acre tract or parcel of land situated in the William Scott Upper League,Harris County, Texas,and being a portion of a called 45.3774 acre tract or parcel of land as described in deed to the City of Baytown recorded in Harris County Clerks File No.G388038,said 1.778 acre tract being more particularly described by metes and bounds as follows; CON, L1,¢NCl3N, G at a 2' iron pipe found on the southeasterly line of State Highway 146 for the westerly corner of a called 12.34 acre tract as described in deed to the City of Baytown recorded in Harris County Clerics File No.R354555,and the westerly corner of a called 10.00 acre tract as described in deed to Le Roy E.Pearce recorded in Harris County Clerks File No.M310862; THENCE S 47°49'20"E,along the southwest line of the said called 12.34 acre tract,a distance of 156454 feet,to a point for comer; THENCE S 42010'40' W,a distance of 351.19 feet,to a paint for corner; THENCE S 02007'14"W,a distance of 117.50 feet,to a point for corner; THENCE S 87°53'09"E a distance of 2.78 feet,to the POLYP OF BEGININTL`iG of the herein described tract; THENCE S 87°53'09"E,a distance of 48.79 feet,to a point for comer of the herein described tract; ` THENCE S 02°13'00" W.a distance of 245.23 feet, to a 1/2" iron rod with plastic cap stamped "RPLS 4980"set for comer of the herein described tract; THENCE N S0021'00"W,a distance of 158.33 feet,to a 112" iron rod with plastic cap stamped "RPLS 4980"set for corner of the herein described tract; THENCE N 11*11'59"E,a distance of 153.62 feet,to a 1/2" iron rod with plastic cap stamped "RPLS 49S0"set for comer of the herein described tract; THENCE N 84*1917" W,a distance of 472.22 feet,to a 1/2" iron rod with plastic cap stamped "RPLS 4950"set for comer of the herein described tract; THMNCE N 85°14'22" W,a distance of 291.84 feet.to a point fcr corner of the herein described tract; THENCE N 40042'46"W,a distance of 35.29 feet,to a point for corner of the herein described tract; THENCE N 27046'21"E, a distance of 15.28 feet,to a point for corner of the herein described tract; THENCE N 75016'45"E,a distance of 36.13 feet,to a point for corner of the herein described tract; Page 1 of 2 THENCE S 85035'31"E,a distance of 738.75 feet,to a point for corner of the herein described tract; THENCE N 72006'57"E.a distance of 20.04 feet,to a point for corner of the herein described tract; THENCE N 11011'59"E.a distance of 39.83 feet,to a point for corner of.he herein described tract; THENCE S 30021'00"E,a distance of 52.57 feet,to a point for comer of the herein described tract; THENCE S 02°07'14"W.a distance of 46.57 feet,to a point for corner of the herein described tract; THElEl 10E S 69037'21"W a distance of 16.79 feet,to a point for comer of the herein described tract; THENCE S 20022'39"E,a distance of 25.00 feet,to a point for comer 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 POIN7 OF BEGUti,NING,containing a calculated area of 1.778 acres of land. s OF - 0E JAMES R.MCCLELLAN7R- �.N6.4980 MCCLEUAN C980 z :°90 SUR`1^O 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 r 1��YIK1• y r ` M r f•IY11as 11.11 to-cc IW Yd• 110K •� � •n �4t Ma•�r• rn.. �(d f f � • Y y � M r .r 04.1111 lf•1r Y.[l son wtop—s .r w 0 0 c� ra i N H W i ~' 0 i r JA LEASE SPACE.dgn 03/08/2005 08:51:44 AM i .� I EXHIBIT C - 3 "ns 5 s cx '.i Parking JwSS '^3 r J:o Cc.C-...n 00{1 J s j1aPaG r Ce.SP.^1 •.C.O.- .. lw-4 s,ep.lo '-y :SS.ir.► .J7 l:r 2a1 •• / ip.or co..c. rl.r.i,t .S . „I .'O:�D y 7a its LEASE ©CLhOARy o., r:• ' 1 • UISS J'eJ :) r�J ,ltC•K 17 � "SPW, � j ,fir �;i , �� iol. ,is ,r+`t• ''" ty.c 1..24 '! c ') .12 ..� so } , •Ito s.ot sTm r.o SIM -u wwtt ifKn Ac. ticc ..J a i us ata ,o t.sl(.t s y, Ccr aw 2% ..c..., lk— c.l cc-c. i n Q y:1 r 2 -. rc. `t b• S." c-c.. tw d 3 cc s ] / i1•p ♦79 . '.f :c«c. y-y91 a J: ]. .w or Corc. v c, co,.c. y s 2 MARINA LEASE SPACE.dgn 09/06/2005 01:36:36 PM r � 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 121h 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 "Structure") 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 121h day of August, 2004; and WHEREAS, on the 12`h 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: 1. 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. EXHIBIT A Assignment and Sublease, Page 1 II. 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 deemed given three (3) days after the date of mailing thereof to the following addresses: Assignment and Sublease,Page 2 SUBLESSEE Bayland Island Development,L.C. Attn: President P. O. 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. Vl. 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. Assienment and Sublease,Page 3 1 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. Authorily 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 parry he/she represents. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies,each of which shall be deemed to be ai original,but all of which shall constitute but one and the same Agreement on theR(day of August,2004,the date of execution by the Mayor of the City of Baytown. LESSEE _�0 GARY ANGEL, Vice President Angel Brothers Enterprises,Ltd. LESSE ( ignature) �— (Printed Name) l (Title) CITY CALVIN MUNDINGER, Mayor City of Baytown, Texas ATTEST: GARY W. SMITH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City 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 a of August, 2004. DANIEL R. ELM ): 't 0 Noiofy Public.Slate of Notary Public in and for the State of Texas [Sea]] My commission expires: STATE OF TEXAS § COUNTY OF HARRIS § Before me, 5 AN AV Y' � the undersigned notary public, on this day personally appeared- ', 1 in his/her capacity as 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 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. Notary Public in and for the State of Texas :: '"'�"!�;_.: SUSANA NEVARES �`a `�� •: •: MY COMMISSION Ex My commission expires: 3 `' ;, July 23, 2006 STATE OF TEXAS § COUNTY OF HARRIS § Before me, / is t the undersigned notary public, on this day personally appeared � ! , in his/her capacity as 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 foregoinVblic ent, and acknowledged to me that he/she executed that instrument for the purposes and on therein expressed. Given under my hand and seal of office this�dst, 2 No r and for the S&K of Texas My commission expires: / OLts STATE OF TEXAS § COUNTY OF HARRIS § 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. SUBSCRIBED AND SWORN before me this day of August, 2004. Notary Public in and for the State of Texas Assignment and Sublease,Page 6 [Seal] My commission expires: \IBdc2Vitigation\Karen\FileslCommcts\Bayland IslandlA%sigrmmntofl,=*4olPre Wu doc Assignment and Sublease,Page 7