Ordinance No. 15,029 ORDINANCE NO. 15,029
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE AND THE CITY CLERK TO ATTEST TO THE THIRD
AMENDMENT TO THE LEASE OF PREMISES WITH SOLID WASTE, LTD.
INC.; MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes
and directs the City Manager to execute and the City Clerk to attest to the Third Amendment to
the Lease of Premises with Solid Waste, Ltd. Inc. A copy of said amendment is attached hereto,
marked Exhibit "A," and made a part hereof 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 27"' day of January,2022.
ANDON APETILLO, a;or
ATTEST: of�aYTogG �
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ANGELA ACKSON, City ! `�
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APPROVED AS TO FORM:
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TREVOR tANNING, Interim City Attorney
RAKaren Anderson\ORDIN ANC ES\202212022.01.2711hirdAmendmenLShipsStoreLeasel Solid WasteLtd).docx
EXHIBIT "A"
THIRD AMENDMENT
TO THE LEASE OF PREMISES
BETWEEN
THE CITY OF BAYTOWN
AND
SOLID WASTE, LTD. INC.
STATE OF TEXAS §
§ KNOWN BY THESE PRESENTS:
COUNTY OF HARRIS §
This Third Amendment to the Lease of Premises ("Third Amendment"), is made by and between
the City of Baytown,a home-rule municipal corporation, located in Harris and Chambers Counties,Texas
("Lessor"),and Solid Waste,Ltd.Inc.,a Texas corporation,("Lessee")on the date hereinafter last specified.
WITNESSETH:
WHEREAS, on February 4, 2002, the City entered into a Lease of Premises Agreement (the
"Lease")with Solid Waste, Ltd. Inc. ("Lessee")for the lease and operation of the Harbor Master Facility
located on a portion of Bayland Island;and
WHEREAS, Lessee exercised its right to extend the Lease for the first five-year option period,
which commenced February 4,2005;and
WHEREAS, thereafter on January 24,2008, Lessee exercised its right to extend the Lease for the
second five-year option period,which commenced February 4,2010;and
WHEREAS, on the 19''' day of March, 2012, the parties amended the Lease to update the rental
payments due to reflect the consumer price index (urban) increases occurring during the time the Lease
payments were suspended due to damages caused by Hurricane Ike("First Amendment");and
WHEREAS,thereafter, Lessee exercised its right to extend the Lease for the third and final five-
year option period,which commenced the 4'day of February,2015;and
WHEREAS, on the 121 day of December, 2019, the parties entered amended the Lease to extend
the term of the lease until the 41 day of February,2022(the"Second Amendment");and
WHEREAS,the parties desire to amend the Lease to extend the term of the same for another year;
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained,the parties hereto do hereby mutually agree as follows:
I. Interpretation. Unless a different meaning clearly appears from the context, words and phrases as
used in this Third Amendment shall have the same meanings as in the Lease,the First Amendment,
and the Second Amendment.
2. Amendments.
a. Article 2"Term and Rental,"Section 2.02"Option Period"of the Lease is hereby amended
to read as follows:
Third Amendment,Page I
2,02 Option Period.Provided Lessee has met all of the obligations of this lease,
the Lessee has the right to extend the Term for an additional period of five
(5) years. If the Lessee elects to extend the Term for the first additional
period of five(5)years and if Lessee has met all of the obligations of this
Lease,the Lessee may also elect to extend the Tenn for a second additional
period of five(5)years immediately following the first additional period.
If the Lessee elects to extend the Term for the second additional period of
five(5)years and if Lessee has met all of the obligations of this Lease,the
Lessee may also elect to extend the Term for a third additional period of
five (5) years immediately following the second additional period.
Thereafter, the Term shall be extended automatically until February 3,
2023.
b. Article 2 "Term and Rental," Section 2.04 "Rental Payments" of the Lease is hereby
amended to read as follows:
2.04. Rental Payments.
(1) January 1, 2003-December 31, 2004. Starting on January 1, 2003, and
continuing through December 31,2004, Lessee agrees to pay Lessor rent
in monthly payments as follows:
January1,2002 .................................................................................$1.00
February1,2002 ...............................................................................$1.00
March1,2002 ...................................................................................$1.00
April1,2002 .....................................................................................$1.00
May1,2002 ...............................................................................$1,000.00
June1,2002 ...............................................................................$1,000.00
July1,2002 ................................................................................$1,000.00
August 1,2002 ...........................................................................$2,000.00
September 1,2002 .....................................................................$2,000.00
October1,2002 .........................................................................$2,000.00
November1,2002 .....................................................................$2,000.00
December 1, 2002, and the first of each subsequent month through
December 1,2003,the monthly base rent shall be$3,000.00 per month.
(2) January 1, 2004 - August 30, 2008. Starting January 1, 2004, through
August 30, 2008,all rent shall be increased yearly by an applicable CPI
adjustment. The first CPI adjustment shall be calculated based upon the
base rent due on January 1,2004,and increased by(i)the Consumer Price
Index(Urban)of the twelve months prior to January 1,2004,or(ii) 12.5%,
whichever is less. The base rent shall again be increased each year
thereafter based upon the base rent due the then previous year and either
(i) the Consumer Price Index (Urban) of the twelve months prior to the
five-year anniversary date or(ii) 12.5%, whichever is less.The total CPI
increase in any five year(5)term shall not exceed 12.5%.
(3) September 1, 2008 - March 31, 2012. Starting September 1, 2008, to
March 31,2012,there shall be no rental payment due under this section.
Third Amendment,Page 2
(4) Aril 1 2012 —March 1 2013. For one year commencing on April 1,
2012, Lessee agrees to pay Lessor rent in monthly payments as follows:
April1,2012 .....................................................................................$1.00
May1,2012 ......................................................................................$1.00
June1,2012 ......................................................................................$1.00
July1,2002 .......................................................................................$1.00
August 1,2012 ............................$3,905 x(#Occupied Slips/Total Slips)
September 1,2012 ......................$3,905 x(#Occupied Slips/Total Slips)
October 1, 2012 ..........................$3,905 x(#Occupied Slips/Total Slips)
November 1,2012 ......................$3,905 x(#Occupied Slips/Total Slips)
December 1,2012........................$3,905 x(#Occupied Slips/Total Slips)
January 1,2013............................$3,905 x(#Occupied Slips/Total Slips)
February 1,2013..........................$3,905 x(#Occupied Slips/Total Slips)
March 1,2013..............................$3,905 x(#Occupied Slips/Total Slips)
As used in the above-referenced formula,the number of occupied slips
shall be determined on the last day of the previous month.
(5) April 1. 2013 — March 1, 2014. For one year commencing on April 1,
2013,Lessee agrees to pay Lessor rent in monthly payments as follows:
$3,905 x((#Occupied Slips X 2)/Total Slips);
provided that,once at least half of the slips are occupied, Lessee agrees to
pay Lessor$3,905 per month as rent, regardless if occupancy falls below
50%thereafter.
As used in the above-referenced formula,the number of occupied slips
shall be determined on the last day of the previous month.
(6) April 1, 2014 — March 3, 2023. From and after April 1, 2014, Lessee
agrees to pay Lessor$3,905 per month as rent.
From and after April 1, 2013, all rent shall be increased yearly by an applicable
CPI adjustment.The first CPI adjustment shall be calculated based upon the base
rent due on April 1,2013,and increased by(i)the Consumer Price Index(Urban)
of the twelve months prior to April 1, 2013, or(ii) 12.5%, whichever is less.The
base rent shall again be increased each year thereafter based upon the base rent due
the then previous year and either (i) the Consumer Price Index (Urban) of the
twelve months prior to the five-year anniversary date or(ii) 12.5%, whichever is
less.The total CPI increase in any five-year(5)term shall not exceed 12.5%.
C. Article 2 "Term and Rental," Section 2.05 "Rental Payments" of the Lease is hereby
amended to read as follows:
Third Amendment,Page 3
2.05. Additional Rent.
(1) January 1,2003—December 31,2004. Starting on January 1,2003, and
continuing through December 31, 2004, as additional rent, Lessee shall
pay Lessor 5%of monthly gross revenues according to the formula below,
which additional rent shall be paid monthly within 45 calendar days after
the end of the month.Such additional rent shall be calculated as follows:
Additional Rent=5%x(Monthly Gross Revenues-(Base Rent/.05))
By way of example:
➢ If monthly gross revenues in July of 2003 are$40,000 then
additional rent would be$0.00.
.05 x(40,000-(3,000/.05))=.05 x(40,000-60,000)_
.05 x-20,000=-1000
therefore no additional rent due.
➢ If monthly gross revenues in July of 2003 are$75,000 then
additional rent would be$500.00.
.05 x(75,000-(3,000/.05))=.05 x(75,000-60,000)_
.05 x 10,000=500
therefore$500.00 in additional rent would be due.
If the above-referenced formula yields a negative product, no additional
rent shall be due.Total monthly rent shall not exceed$5,000.00 per month.
(2) January 1, 2005 -- August 30,_2008. Starting on January 1, 2005, and
continuing through August 30,2008,as additional rent, Lessee shall pay
Lessor 5% of monthly gross revenues according to the formula below
which additional rent shall be paid monthly within 45 calendar days after
the end of the month. Such additional rent shall be calculated as follows:
Additional Rent=
5%x(Monthly Gross Revenues-(Base Rent/.05))
If the above-referenced formula yields a negative product,no additional
rent shall be due.
(3) September 1, 2008 - March 31, 2012. Starting September 1, 2008, to
March 31,2012,there shall be no additional rent due under this section.
(4) Starting on April 1, 2012, and continuing through March 3, 2023, as
additional rent, Lessee shall pay Lessor 5% of monthly gross revenues
according to the formula below, which additional rent shall be paid
monthly within 45 calendar days after the end of the month. Such
additional rent shall be calculated as follows:
Third Amendment,Page 4
Additional Rent=
5%x(Monthly Gross Revenues-(Base Rent/.05))
If the above-referenced formula yields a negative product,no additional
rent shall be due.
"Gross Revenues" as used in this section shall mean all amounts received from
whatever sources which are received in connection with the operation of the
Premises Improvements subject to offsets only for refunds, credit card company
fee charges, employee discounts and sales tax. Lessee shall deliver to Lessor by
the 151 of each month a report, in a format approved by the City Manager, the
gross revenues of the previous month. Said report shall contain the basis for the
payment and an affidavit from an officer of the Lessee verifying that all of the
information on the submitted report is true and correct. Lessee must keep such
reports and the supporting documentation therefore for at least 4 years.
Lessor shall have the right at any time to audit any and all of the books and records
which in any way relate to gross revenues or the calculation of additional rent to
be paid to Lessor.Lessee shall make all of these records readily available for the
examination within ten days of a request therefore. If any audit by Lessor shows a
deficiency in the amount of additional rent paid to Lessor by more than five percent
(5%), then the cost of the audit shall be paid by Lessee. The additional rent due
and the cost of the audit shall be paid within 10 days' written notice of such
deficiency and the cost of the audit.
3. Interpretation. The provisions of this Third Amendment and the provisions of the First Amendment
and the provisions of the Lease should be read together and construed as one agreement provided
that, in the event of any conflict or inconsistency between the provisions therein, the order of
priority of documents shall be this Third Amendment, the First Amendment and then the Lease.
Nothing contained in this Third Amendment or in the First Amendment or the Lease shall be
construed in any way to limit or to waive the City's sovereign immunity.
4. Non-Waiver; Release. By this Third 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 Third Amendment 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.
5. Authori1y. The officers executing this Third Amendment on behalf of the parties hereby confirm
that such officers have full authority to execute this Third Amendment and to bind the party he/she
represents.
6. Effective Date. The effective date of this Third Amendment shall be on the date this Third
Amendment is signed by the City Manager.
Third Amendment,Page 5
IN WITNESS I IF..REOF. the parties have executed this Third Amendment in duplicate originals at
Baytme ii. Barris County, Texas.
CITY OF BAY"OWN
RICHARD L. DAVIS. City Manager
ATTEST:
ANGELA JACKSON, City Clerk
APPROVED AS TO FORM:
TRIVOR FANNING, Interim City Attorney
SOLID WASTE. LTD. INC.
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SI lI1dlLIi'C
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Printed Namc
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Title
STATEOFTEXAS §
COUNTYO1 1JARRIS §
Before me, hec5 the undersigned notary public, on this day personally
appeared ` rYt R&It tow the RZ6 dtn7— of SOLID WASTE, LTD. INC., on
behalf of such limited partnership
known to ntc:
proved to me on the oath of ; or
�L proved to me through his/her current MVb-r, '0y64L-
;description of identification card or other document issued by the federal government or
anv state government that contains the photograph and signature of the acknowledging
person'
(check one)
Third Amendment.Pa=e 6
to be the person whose name is subscribed to the foregoing instrument,and acknowledged to me that he/she
executed that instrument I-or the purposes and consideration therein expressed.
Given under my hand and seal of office this 1g day of 2022.
...�. V,3%ylnu
§,�Jl
DENISE SWAIMNotary ublic in and for the
,n,Notary Public, State 0f Texes State of TexasComm. Expires 03-07.2022, My cannission expires:n" Notary ID 12591810-4
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