Original Petition Cause 54864

8/14/2019 Original Petition Cause 54864

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Flled09 November 6Jerry DeereD M c tClerkBlruorla D M c t

BRIARWOOD HOLDINGS, LLC 0 IN THE DISTRICT COURT

Plaintiff09

VS.000

CITY OF FREEPO RT ECONOM IC 0 OF BRAZORIA COU NTY, TEXASDEVELOPMENT COR PORATION 0

Defendants0

PLAINTIFF'S O RIGINAL PETITION

TO 'THE HONORABLE JUDG E OF SAID COUR T:

COMES NOW Plaintiff, BRIARWOOD HOLDINGS, LLC (Plaintiff' or "Briarwood"),

and complains of Defendant, CITY OF FREEPORT ECONOMIC DEVELOPMENT

CORPORATION ("Defendant"), and for causes of action would show the Court the following:

I.DISCOVERY CONTROL PLAN

1.1 Plaintiff intends to conduct discovery under a Level 2 discovery plan as defined

by the Texas Rules of Civ il Procedure.

11.THE PARTIES

2.1 Plaintiff, BRIARWO OD HOLD INGS, LLC, is a Texas limited liability company,

with its principal place of business located at 291 1 Turtle C reek Boulevard, Dallas, Texas 75219.

2.2 Defendant, CITY OF FREEPORT ECONOM IC DEVELOPMENT

CORPORATION, is a Texas corporation and may be served with process by serving its

registered agent, Lee C ameron at 200 W est2nd Street, Freeport, Texas 77541, or wherever else

he may be found in this State.


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111.

JUFUSDICTION AND VE NUE

3.1 Jurisdiction is proper in this Court because the damages sought by Plaintiff

exceed this Court's minimu m jurisdictional limits, and the parties to this lawsuit are all subject to

jurisdiction in the State of Texas.

3.2 Venue is proper in Brazoria County because all or a substantial part of the events

giving rise to this dispute occurred in whole or in part in Brazoria County, Texas. Further, this

case'involves the sale of real property and the real property is located in B razoria Cou nty.

IV .STATEMENT OF FACTS

4.1 Plaintiff would respectfully show that it entered into agreements with Defendant

to purchase the real property a s more specifically described on Exhibit"A " attached hereto and

incorporated herein for all purposes ("Henderson Tract") and lease the Henderson Tract along

with other real property owned by Plaintiff to D efendant to be used for the design, construction,

maintenance and operation of a marina facility with docks and related facilities.A copy of the

Lease by and between Plaintiff and D efendant is attached hereto as Exhibit"B" and incorporated

herein fo r all purposes (the "Lease").

4.2 Plaintiff is, as has been ready and willing to purchase the Henderson Tract from

Defendant. On May24, 2007, Defendant held a meetingin which it voted to approve the sale of

the Henderson Tract to Plaintiff. Se e copy of minutes from meeting, affidavit executed by Lee

Cameron former Director of Defendant, and email correspondence from Lee Cameron dated

May 15, 2007,all are attached hereto as Exhibit"C", "D" and "E" respectively and incorporated

herein for all purposes. How ever, to date, Defendant has failed to fulfill its obligations and

convey the Henderson Tract to Plaintiff, notwithstanding continued efforts by Plaintiff to

conduct the sale.


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4.3 Plaintiff has complied with all conditions precedent to recovery in this lawsuit.

V. SPECIFIC PERFORMANCE

Plaintiff would show the Court that it is entitled to specific performance requiring

Defendant to sell the Henderson Tract to Plaintiff for Two-Hundred Thousand Dollars and

No/100 ($200,000.00) as previously agreed to by the parties.

VI. COMM ON LAW AND STATUTORY FRAUD

Plaintiffs' claims arise out of a "transaction involving real estate" under Tex. Bus.&

Com. Code Section 27.01. Defendant has continually strung Plaintiff along stating the

conveyance of the Henderson Tract from Defendant to Plaintiff was in the works and would be

completed in due course. The misrepresentations of the Defendant constitute representations of

past or existing material facts. Such misrepresentations were made by the Defendant to the

Plaintiff for the purpose of inducing Plaintiff to enter into the Lease with Defendant. Plaintiff

justifiably relied on Defendant's rep resentations executing the Lease. As a result of this reliance,

Plaintiff suffers actual damages. Plaintiff would show that Defendan t's conduct was done

knowingly, intentionally, and w as the product of fraud, giving rise to the recovery of exemplary

damages.

VII. ATTO RNEYS' FEES

Plaintiff has made demand upon Defendant for specific performance of its agreement to

convey the Henderson Tract to Plaintiff and Plaintiff would show the Court that the recovery of

attorneys' fees is authorized under and according to the provisions of Section 38.001 et. seq. of

the Civil Practice and Rem edies Code. Plaintiff further asks recovery of and from Defendants

for reasonable attorneys' fees (and conditional awards in the event of an appeal), inasmuchas

Plaintiff has been required to em ploy the undersigned attorneys to file this su it and has agreed to

pay them a reasonable fees for their services, for which it now sues.


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VIII.REOLTEST FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Plaintiff TEXAS PIPE& SUPPLY

COM PANY, LTD. prays that:

1. Defendant be cited to appear and answer herein.

2. That upon final hearing of this cause, Defendant be required to convey theHenderson Tract to Plaintiff for Two-Hundred Thousand and No1100 Dollars($200,000.00).

3. Plaintiff prays, in addition, for recovery o f court costs and attorney's fees incurredin this action and pleaded hereinabove.

4. Plaintiff prays for pre-judgment and post-judgment interest to the extent providedby law.

5. Plaintiff prays for such other and further relief to which it may be justly entitled.

Respectfully submitted,

TSB #037767& 'Tanya N. G arrisonTSB #24027180Eleven Greenway Plaza, Su ite 1400Houston, Texas 77046Telephone: (7 13) 96 1-9045Facsimile: (713) 961-5341

ATTORNEYS FOR PLAINTIFF


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EXHIBIT "A "

Henderson Tract- former home to Trico, with 200 feet frontage on the Old Brazos River, alsoknown as Tract 111, Block 1C, Freeport Townsite, .3 8 acres.


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EXHIBIT "B"

LEASE AGREEMENT

ARTICLE I. BASIC LEASE PROVISIONS A ND LIST OF XI-IIBITS.

I . Basic Lcase Provisions,

(a ) EFFECTIVE D ATE O F THIS LEASE: Shall nxa n thc date of execulion o f tliis Lease by the lostot'tlic parties hereto ns indicated on the signature p y e hercof.

(b) LANDLORD: BRIARWOOD I-IOLDMGS, LLC

(c) ADDRESSOF LANDLOKD FOR NOTICES:

Briarwood Capitnl Corp.Attn: Mr.H. Walker Royal179 1 I Turlle Creck ~lv d:, Suite 1240Dallas. TX 75219

(d) TENANT: CITY OF FREEPORT ECONOM IC DEVELOPMEN T CORPORATION. aTexas Corporntio~i

(e ) ADDRESS OF TENANT FOR NOTICES:

200 West Second Shee tFr~x port exas 77541and 31 the Leased Premises

(I),,LEASED PREMISES: T l~n tnc t o f land (the "Land") in Bmzoria County, Texas ( as describedin

Exhibit "A atlached liercto), togcllier with a11 improvements hereo n. or to bc cmcted thereon. Th e definition o"Lnnd" slr;ill include tliot portion of the Premises (or the Land) above ond below the water. which w ill be piers anboar slips wilh supports, extending into tlie Old Brazos River. and which is show n on Exhibit"C' ereto.

(g) ADDRESS OF TH E PREMISES:

(11) LEASE TERM: This Lense slinll beconle effective upon executiou of this Lease by both Landlordand Tcnont. The Term o l liis Lease sliall commence ou~K Commencment Date (hereinaner defined) and shallterniirlate on the last day of tlie lotir hutidred eightieth 460hill calendar month thercnfler unless sooner terminatedill accordance with the provisions o lt hi s Leasc.

(i ) MINIMUMRENT: Minimum Rent hereunder shall bc hie following amounts payable in advonceon dic l in t dny of each montli throughout tlie Term of tliis Lense:

/"

LEASE YEAR ANNUAL RENT MON THLYRENTAMOUNT

Year 1 SO SOYcslr 2-5 S36.500.00 53,04 1.67Yenls 6-10 $41,975.00 $3.495.42Years 11-15 $48.27 1.25 $4,022.60Years 16-20 555.5 11.93 $4.625.99Ye r n 21-25 $83,838 .72 $5.319.89Years 26-30 573,414 .53 $6,117.88Ycarr 3 1-35 $84,426 .7 1 $7,035.56Ycars 36-40 $97.070.72 $8,089.23

u) PERM IITED USE: The Leased Premises shallbe used by Tenant only for the design.col~stnlction,mairltenance, and ope ration o r a marina lhcilitywith docks and related Lcilities, and for no otherpurpose.

(k) DROKER(S): (Sce Sectio1122.16): Brirr ww dCa itnl Corporation is Landlord's Broker and is toreceive n real esiate colmlission pursuantto n sepnmte agreement wit[ hnd lor d.

( I ) TEN ANT 'S PERMITS: Thc Tenant, shnll, within 120 days followingthe Effective Date, applylor all necessary permits and povcrnmental approvals for Tena nts Work at thePremises.

(m) SURVEY: When Ilie word "Survey"is used herein. the same shall meonthe on the gmund surveyninde by DamianlGallio~i& Associnlcs, dated May and June. 2003, obtained by Landlord, a true nnd correct copy ofwhich is a1tac11edhereto (a s Exhibit "C-I") and a pnrt llereof for all purposes.

(0) RENTADJUSTMENT: Landlord and Tenant recognize that the "Henderson Tract" is not yet

owncd by Lsndlord.I t is anlicipated that Landlord sliall acquire this tmct within 180 days. In the ev ent that Landlorddocs not acquire this Iract. La~idlonl nd Tenant agree that the Minimuni Rent shall be reduced by $20.000 per yearIf Landlord does acquire tlic Hc~wlcnon nc t, then Minimum Rent shall bew stated abovein (i) with no redilction.

(p ) OTHER DEFINITIONS OF CERTAIN WORDS, TERMS OR PROVlSlONSM THIS E A S EARE SET our N ARTICLE XXII BELOW.1.2 ~ic nil ica ncc f Basic Lense Ptovisions.

. In t L event of ally conflict between the Basic Lease Provisions and the balance of this Lease. the lattershall control. Each of the Temis contoined in the Basic Lease Provisions shall be construed in conju nction with thremainder orthis Lease, in particulnr, the referrnccd portions tliercof,

, u . st of Exhibik. Tlie Exhibits andlor Addenda listed below as bring pnrt of this Lease are anachedto.incorpom\ed in, andiuc to br construedm p m o f this Lease for allpurpose.^. Landlord nnd T e n n shall performtheir resp cc~ ivc bligntions stated ill such Exhibits and A ddenda.


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*NDCAUSEs A(JTION RESULTKG FROM OR. ARISTNG .B-m "-l.o-LLArI.6N- iNON-PERFORMANCE OF ANY COVENANT OR CONDITION IN THIS LEASE OR FROM THE USE OROCCUPANCY OFTH E PREMISES. OR FROM AC TS OR OMISSlONS OF TENANT OR ITS PERMITEESI NOR ABOUT TH E PREMISES. OR ANY VIOLATION OF LAWS. OR DINANCES. RULE S OR REGULATIONS(INCLUDING, WITHOUT LIMITATION. VIOLATIONS OF ENVIRONMENTAL LAW), WHICH INCLUDESINJURIES OR DEATH OF ANY PERSONS. OR DAMAGE TO ANY PROPERTY, OCCURRINODURINGTHE TER M O F TI.IIS LEASE.

(a) TCIIOII~IIOII throughout the Lease Term ca rry and m aintain, at Tenant's cost and expense,the following types of i~lsuronce. n tllc amounts specified and in the forms h e n in a k rprovided:

(i ) commercial general liability insurance on an "occurrence" basis against allclaims on account of liability ofTe nan t, wit11 limits of not less than $2,000.000 per occu rnnce and$1.000,000 as n gen enl aggregate. Tenant's commercial genc ml liability insurance shall includeBroad Form Property Damage, with a limit of 51.000,000 per occurrence, it being the intent ofLandlord ond Te~ lon t llat Tenant's con tnc hla l liability coverage will provide cov eng e to themo rim un ~ xtent possible ofTenant's indemnification obligations tinder this Lease; and

(ii) During the Leasc Term. the Tenant slwll maintain fire and casualty insunnce onthe Building and other inlprovemcnts al the Premises, on a replacement cost basis which insmnceshall nunled tllc h ~ d l o r d s an odditio~lnl insured.Tenant shall furnish Landlord evidence,sotisfoctory to Londlord (u true and correct copy of such insunnce policy andlor a certificateindicating that the same is in full force and e b c t ) at all times throughout the Lease Term. Suchpolicy shall. at a m in im un ~ natre against the perils included in the I S0 Special Clnusss of Lossform CP1030 and any amendments or "oll risW coverage including, but not limitedto, loss ordamuge due to fire ond ri s k normally included in exten ded cove nge (flood nnd windstorm). All

policies maintained by Tenant shall be primary. and not excess over or contributory with anyinsurance nlaintail~ed y Landlord. All policies shall bein a form and with a compnny reasonablyacceptable to Landlord and shall be endorsed80 as to be non-cancekble and not subject tornod~ficationscxcept upon not less than thirty (30) days prior written notice to Londlord by theinsurer. If Tenant mils lo have duplicate originals o r cert~ fica tes n deposit with Landlord at anytime during tllc Lease Term. t11c11 he Landlord shall have the right (but not the obligation) aRerseven (7) days noticc to Tenant. lo lake out and nlaintnin such olicy or policies, and if Landlorddocs so and gives notice to Tenont thereof, then the Tenant s h a i be obligatedto pay the Landlordthe nnlount ofthe premium applicable to such policy or policies within seven (7) doys following ademand from Landlord. Foilure of Tenant to moke a ny suc h payment to Londlord shall be trentedas ;1 default by tllc Tennnt in the payment of Rent un der this Leas e; ond

(iii) plalc glass insurance covering all plate glass, if nny, in the Premises; and

(iv) workcr's compensation insurance as required by law; and

(v ) Tenant shall, at nU times d uring this Lease when. an d if, Tenantis dispensing o rselling alcoholic bcvcrnges, purchase and mintnin liquor liability (or "dram shop"') insurance,insuring both Landlord alld Tenant with limits of linbility reasonably acccploble t o Landlord. A nyinsurance policy shall be rcllewed at least 30 days prior to expiration or modification thereof, andTe ~w nt hall filrnish Landlord with copy of each renew al policy o r a certificate evidencing thotprcmni~~mshereon have beell paid and thot such insura~lccs in full force md eUect. In the even tsuch insunnce should ever lapse, Temnt shall1101 dispense or sell alcol~olic everogcs thereaftu.or allowved nlcoholic beveruPS to be consumed on the Premises: alld if Tenant shulldo so, thesame shall co nstit~~ tedef ath under the Lease;

(vi) Tellant will obtain (and furnish Landlord with evidence of) coverage. to themaximum c xtent available, flood insurunce;

(vii) Te n a ~ ~ ti l l obtain and h~n~ishandlord with a separate policy for windstormcoverage wit11 Texa s Windstorm I ns~lr anceAssociation; and

(viii) sucb other ins ~~r nnc egainst olher insurable hazards as Landlord may from timeto time reasonably require.

(b ) Each sucll policy shall name Landlord as a n additional insured. Each such policy shall beTor the mutual and joint benefit and protection o f Tenant, Landlord and any mortgagee o f Landlord.ifreqncstcd by Landlord. and sllnll bc prlrnory insura nce for all cl a i m under such policy and provide that anyi ~ ~ s u n n c earried by Landlord or any other party in interest is strictly cx c w , secondary andnoncontribding with any insura~lce arried by Tenant. Executed copies of each such policy of ins~u nnce ro certiiicate Illereof shall be deliw red to each of Landlord ond su cb othe r parties in interest prior to Tenanttaking possosion of thc Premises and thereafter within 30 doys prior to the expiration of each such policyIf any policy shall cxpire or tcrnlinate, a renewal or additional policy shallbe procured and maintained bTenant in like nn nn nan d to like extent, it bcinp intended P a t tl r i n s u n m required hercundcr shall, ata itimes during the Tern1 of this Leasc, rernain In full force and effect. All such policies 6hJIl contnin aprovision thnt the company writing said POIICYwill give to Londlord and such other pnrties in interest atleast 30hys notice in writing in advance of any ca ~~cc llation .h m e, modificntion. lapse, or the effectivedate of any reduction ill the amount of insurance cova nge . In adiition. Ten ant shall furnish Landlord atrue. correct and con~ ple te opy of tl ~e olicy (policies), so that Landlord shall have evidence of effectiveinsurance coverage lhro~~ghoutile term of thls Lease. All suc h public liability and property damagepolicics sllall conlilin a provision that Landlord and any s uch othe r parties in interest, although named as a ni ~ ~ s u r e d ,hoI1 nevertheless be entitled to recover unde r anid policies for any loss occasioned to Landlord ornny st ~c h ther parties in interest. or to any of their respe ct~ ve ervants, ogents or employees by renson otile negligence of Tenant.

9.3 Lnlldlord nnd Tunant llcrcby waive und rclcasc each other o r and from any and all rights ofI L\lll~IO2lUlIlIXI5YUBJ80.UOCC;IU~O~ lnltial&

Tonon I

Pugc 4 Indl0 :


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rccovely, claims, actions or causes ofa ct io~ leainst encll other, and thcir Permitees for any loss or damage that mayoccur to the Premises or anv improvemenls thereon, o r any personal property (includina building contents within thePremises) by reason of rfe or 'casi~al ty r other eve~~ts~nbrmall~oG re d by exten&d nll rHk property dam ageinsurance coverage regardless of the cause or origin. M CL UD MG NEGLIGENCE OF LANDLORD O R TENAN TAND THEIR AGENTS. OFFICERS, DIRECTORS, MEMBERS, PARTNERS AND EMPLOYEES. Landlord andTc n a ~ ~ thoI1 irnmediatcly give written notice of the ternis o f mutual wnivers of subrogation contained in this Article9.3 lo coch of their respective insurnnce compnnie s which has Issued policies of insurance covering all risk propertydamuge. and shall linvc the insurance policies properly endorsed to reflect the instibce cornpiny'sucknowlrdge~nent f such waiver and the absence of s~~brogationights. Ench party shall provide to the other,annually, within ten (10) days nner a request therefor, evidence that its all risk properly damoge insurance policieshave brcn so endoned.

ARTICLE X. YON-LIABILITY FOR CEIUA'AM DAMA GES,

Landlord shnll not be liable to Tena nt for any injury to persons or damage to property. Allproperty o f Tenant's Icn, stored or ~nainmin edwithin the Premises shall be at Tenant's s ole risk.

ARTICLE XI. ACCESS T0 PREMISES.

hndlord shall, nt all times during the Term of this Lease, havethc right, alter reasonable notice to Tenant.to enter upon the P ~ m i s e st all rrosonnble hours for tlie purpose of inspectingthem conducting environmentaliiispections or sampling, or curing any defa~~ltf Tcnnnt hereunder chnt Landlord has the obligation or righthereunder to cure and elccts to cure. Laildlord sllall not be liable to Tenant for any expense. loss or damngc fromany such entry upon the Premises unless caused by Land lord's negligence o r willfill misconduct.

ARTICLE XII. DAMAGE B Y CASUALTY,

12.1 Tunant shall give prompt writtcn notice to Lnndlord o f any dnmnge caused to the Premises by fireor other c Ga lt y following Teennt'sdiscovery ofsame.

12.2 In the event the Premiscs are damaged or destroyed by tire or other casualty, insured or insurable

undcr standard fire and exlcnded c ov er ag insurnnce. Tenant shall be obligated to rebuild and restore tlie Premises toits conditio~ i mniudiately prior to the casualty.

12.3 During any period o l reconrtruction o r repair ot tlic Premises, tlus Lcase shall continue in fullforce and effect.

12.4, If this Lease is terminated. it is agrecd and understood that all insurnnce proceeds received shall bepromptly del ~vere do tlie Landlord.

ARTICLE X111. EMIN ENT DOMA IN.

If the whole, or any pnrt ofthe Floor Area of the Prcnises. shall be taken for any public or quasi-public use under any governmental law, ordinance or regulatlon, or by right of eminent domainor by privatepurchase in lie11 IliereoL and in the Tcnnnt's reasonable and goo d faith determimtion, Tenont would be u nable(give11 he remaining are a of the Premiscs) to rcstore tlie Premises to a usable con dition for Tenant's marina. then theTennnt sliall bc entitled to Terniinate this Leose by giv ing Landlord written notice thereof not later than thirty(30)days aner thc takinp, and thereupon the parties to this Lease shall be relieved from all further obli ationr hereunder,each to the other. kliould this Leose be so cancelled. thcn proceeds of the taking shall be pa il ov er to Landlordexcept ony separate award which 'Tcna~~ts nble to receive provided same does not reduce the award to whichLandlord is otherwise able to receive. I f Tenant clecls to restore the Premises oller a taking, then all proceeds ofcondemnation shall be made avoilnblc to thc Tenant Ibr restontion o f the Premises. Tenont shall commencerestoration as soon a s rensonnbly practical, and shnll complete the sa me with du e diligence, subject to force majeuredelays.

ARTLCLE XIV. ASSIGNM ENT AND SUBLE'ITLN(3,

J4J Tennnt shnll not ussig~~.lortpnge, pledge or in any manner transfer this Leose or any estate orinterest thereiti. or sublet tl ~e rcniises or any pnrt thereof, without the prior writtcn consent of hn dl ord . Consentby Londlord to one or niorc msigonients, sublettings or otl~erransfers shall not operateac a waiver of Landlord'srights as to mny subsequcnt assignments, s~~bleltingsr other transfers. Notwithstnnding nny permitted assignment.subletti~ig r other tmnsfer. Tenant shull ut all times remain fully respo~~siblend liable for the poymcnt of all Rentand for compliance with all its other obligations underthis Leose.

14.2 In the event of tlic tnnsfer or assignment by Landlord of its interest in thfs Lease andin thep re m is e st on y person or entity expressly assuming Landlord's obli ations under this Lease. Landlord shall therebybc relensed rrom furtlier ob li pt bn s hereunder (following the date ohc hnnsfer) and Tennnt shnll look solely to theresponsibility of such successor-in-interest of the Landlord.

ARTICLE XV. PROPERTY TAXES,

IS. I T o the extent tl~ at enant is not exempt there from Te nant shall be obligated to pay all Real EstnteTnses ( m if il l e d in .Article 32.15 below) on a timely basis during the Term of this Lease, and, before such RealEstnte Taxe s nre delinquent dnring 1116 Tcrm ol' this Leose. Upon payment of tlie same. Te mnt shall fbrnishLandlord with o copy of n pnid receipt to indicate pnynlent of sucl~nxes. T l ~ c andlord sliull deliver to the Te ~~ an t,p p t l y nRer the snrne is received. all tax bills and invoiccs for payment of Real Estate Taxes affecting the

remises, and thc Tenant slinll pay tl~came not later than ten (10) day s after receipt thereof and shall then (withinI0 days aRer payn~eat) i~ r~ ~i shandlord with evidence o f payment thet.eof.

1S.Z Tena nt shall pny timncly, as and w hen due, all toxes whi chnre charged. ussessed or imposed upond l trade fixtures. cquipmcnt ond othcr personal property of every type in the Premises, and all license fees whichniny be lawfully imposed upon the business ofTe nm t co nd ~~ cte dpon the Premises.

AR'PICLE XVI. EVENTS OF DPFAUL'T AND REMEDIES.

16.1 Each or lie following evcnts shsll be deemedto be an eve nt of default of Tennnt hereunder (eachoFw11icl1 is somet imes rel'erred to he rein as nli "Even t o f Derault"):


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(a ) failuw of Tenunt to pay any installment of Minimun~Rent, additional rent or any sums.amounts. or charges providcd to be pait1 by Tenant to Landlord, hereu nder when due, and sltch failure shallcontinue for nlore than tcn (10) days following notice thereof fro m Londlorl; providcd however. that in theevelit Landlord has liven Tennut two (2 ) such 10 day notices within any one twelve (12) consecutivemon111 period, no f i~ rt l~ er~ o t i c e srom Lnndlord to Tcnant shall bc required during such twelve (12) monthperiod, and h e third default (within h e same I2 consecutive month period) shall be deemed on automatic.uncurablc default, and no furtl~ er otices from Landlord shall be req u~re d. enant hereby expressly waivingall further notices from Landlord or those actingon Landlord's behalf;

(b ) failure of Tcnant to complelc its coast~uction n a timely basis, and open for business

within the period prescribed in Exhibit" B . paragraph C;

(c ) lie abo~~donmentf tbc Yrenlises by Tenant;

(d ) failure ofTenaut to observe or perform any othcr covenont. term or condition set forth intliis Lease (otl~ er han a nionelary default). and such failure continues for a period o f lhirty (30) days ormore af ter Landlord not il ies T e ~ n tl'such failure, provided that, if the cure of such default requires morethan thirty (30) days to completu, Tenant will not be in default if Tennnt has begun sr ~ c l ~ure within theoforesaid th i y (30) day period, and is diligently pursuing s ~ ~ c hure. in good kith, Tenant shall havereasonoble nd t t~ ol ~a ltme lo complete sucli cure;

(e ) Tenant or any Guarantor shall generally not pry its (or their) debts as they become due orsliall admit in writing i ~ sor their) inability to pay its (or their) debts, or sl~allm k c a general assignmentfor tl~ e enefit of creditors; or Tenant or a ny Guarantor shull commellce any care, proceeding or otheraction seeking to have an ordcr for relief entered on its behalf as debtor or to adjudicate it a bnnkrupt orinsolvent, or seeking ~.eoreanization. rr an pn ~e nf djustment, liquidation, dissolution or composition o r tor its debts under any law relating to bankruptcy. insolvency. reorganizntion or relief ofdebtors, or seekingnppointnient of a receiver, trustee, custodian or other similar official for it or for 011 or any s~~ bst ant ialartof i k propcrtv: or Tenant or uny Guarantor sl~ nllake any mrporatc action to authorize, or in contemplationof. any orthe-actions set forth above in this subscction (g); or

( I ) ally case, proccediny or othcr action against the Tenont or any Guarantor sl~allbeconu ncl~ ced eck il~ g o havc an ordcr for relief entered against itns debtor or to havc it adjudicated aba nk n~ pt r insolvent, or seeking reor pni mt ion , nrmngement, adjustment. liquidation. dissolution orcomposition of it or its debts under any law relating to bankruptcy, insolvency. reorganization or relief ofdebtors, or seekingoppointme~~tf a receiver, trustee, custodian or other similar official for it or for all orany substantial part of its property. and such case. proceeding or othe r action (i) results in the entry of anorder for relief agnim t it which is not Fully stayed w ithin thirty (30) busine ss days after the entry thercol, or(ii) shall rcmnin undismisscd for a period of sixty (60) days.

16.2 Upon the occllrrcnce of uny of such Events of Default, L andlord shall liave the option to pursueany one o r o r e of the following remedies wirliout any notice or demnnd whatsoever, exceptns expressly providedin this Lease:

(a ) Turminnte this Lease. or terminate Tenants rights (including, but not limited to, Tena~~t'srig111 ofpo sscs sion, but not the Lease) under this Lease (but not Tenan t's obligations). and in either eventLandlord shall have tl~cight to immediate possession of the Premises and may reenter the Premises, andremove all pen ons and property therefrom by ony lawfill ma n s , without being ulltyin any manner oftresposs or otherwise; and any a~r d ll damages to Tenant. or persons holding u n k r Tenont, by reason ofsuch re-entry are hereby expressly waived; and any suclr termination or re-entry on the pnrt of Landlordsboll be without prejudice to any remedy available to Landlord for arrears of Rent, breach of contract.dan~agcs r otl~envise,nor shall the termination of this Leose or of Tenant's rights under this Lcase byLandlord acting under this subsectio~~e dcerned in any mnnner to relieve Tenont from the obligation topay the Rent and all oll ~e r niounts due or to become due as provided in th h L ease for and during the entireunexpired portion t1u11 ren~nining f the Lease T c n n In the event of termination of this Lease or ofTenant's ri ~l it s nder tliis Leasc by Landlord 0s provided in this subsc ction. Tenont sholl pay to Landlordnll eosls of renovoting and altering the Premises for a new tenant or tenants in addition to all brokeragea ~ ~ d l o regal fees incurred by Landlord in connection therewitl~,and Londlord shall credit Tcnant only forsuch arnollnts as are l lc ~ al ly cccived from sucli reletting during the remainder of the Leare Term.Altcrnotively, at the election o r Landlord. Tenant covenants a nd agrees to pay as liquidated damages toLandlord, up011any such tcrminatio~~y Landlord of this Leaseor ofTe nont1 s right8 undet t lis Lease, suchsun1 as at thc time o t ' s ~ ~ c l ~ermination e q~ur lshe amount of the excess. if any. of th e then present value ofall tbc Rent which would have becn due and payable hereunder during the remainder of tl ~eull Lcase Term(had Tenant kept and perf orn~ cd ll aveem cnts and covenants of Tenant se t fonhin this Lease) over andabove the thcn ptesent rental value of th e Premises for said remainder of the Lease Term. For purposes ofpresent value calc~~lations.andlord and Tenant stipulate and agree to a discount rate of eight percent(8%)per nnnum.

(b) Without terminating this Lcase, enter upon the Premises, by any lawful means, andwithout being yi l t y in nny manner o r respass or olherwise and without liability for any &m geto Temntor per sons 1101 ing und er Te nnnt by reason o fSIICII re-enby. all of which are hereby expressly waived, and

do or pcrfoim whatevcr Tennnt is obligated hereunder to do or pe rf om under the t er m of h is Lease;andTcnant shall rcin~bu rsc andlord on demand for ony ex enses or other sums which Landlord m y ncur orexpend purs~~o nto this Subsection (b), and hndlortshall not be liable for any damages resulting to

.Ten ant from such action, w hetl~c r uused by llle negligence of Landlord or otherwise; provided, however,nothing in this sr~bsec tion hall be deemed an obligation o r undertaking by Londlord to remedy any suchdefaults of T ellant.

(c ) Pursuit o f any of tl ~e oregoing remedies by Landlord shall not preclude pursuit of anotl ~er emedies l~er cin rovided Lnndlord or any other rcmedies provided by low or at e uity. norSLEpursuit of any of the otl~ er rmedies herein provided constihtte aforfeiture or waiver o?any Rent dueLandlord hereu~~derr of any donuyes accruing to Landlord by reason of the violation of any of the Terms,provisions and covcnnnts herein contained. Forbeara nce by Landlord to enforce one or more of therenlcdies hcrein provided upon an Event of Default sl~ nll ot be deeme d or construed to constituter waiverofsu ch default.


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ARTICLE XVII. LANDLORD'S LIEN. SECURITY AGREEMENT A ND A'TTORNEY'SFEES.

17.1 T o secure the paymellt o f all Rent and tlie performnnce of a ll other obligations o f Tenonth e r c u n d r ~ c n n n tiercby ga~ il so Landlord a security interest, as thnt Te rm is defined in h e U n~ fo nn ommercialCode as adopted in the Statc of Texas, i n nl l cqui menl. trade fixtures. furniture, furnishings, and other personalpropeny w li ic l~ rc now or liercafler located on or p ic e d with in thc Premises, including all proceeds thereof. To theexlent pcrmitted by law, all lnw frll exemptions ofsu ch propcrty or nny pi vt thercof are hereby waived by Tennnt andsucl~ ecurity intercst shall be in n dd ili o~ ~o ony statutory lien prov ided to landlords under the lows of the State ofTcxas. This Leusc sholl constitute a security mgrcement. as that term is defined i n tlie Un ifor m Com msrcial Code asadopted in the Stute ofTexas. .

ARTICLE XVII I . HOLDINGOVER.

18.1 In the event Tenant remuins i s possession o f the Premises aRer the exp irotion o f this Lease andwitbout thccx cuti on of a new leosc. i t shnll bc deemed to be occ upyin g the Premises as a tenant at sufferance at nnionthly Minirnuni Rent equal to I 5 Wo f he monthly Minim um Rent applicable hcreunder during the last month o fthc Lense Tem i and otherwise subject to a ll tlie conditions, provision s and obligations o f this Lease insofar os thesame nrc applica ble to u tenancy ul suffennce. Tenont shall.tndemnify and hold Lnrniless Londlord from al l claims,causes o f action, costs, losses, d arnu ps and attorneys fees incurred by Lm dl or d as a result o f such holdover.

ARTICLE Xl X. FMANC ING: SUBORDINATION; ESTOPPEL.

19.1 Tenant accepts U~is ease subjecl and stibordinate to any mortgage, deed of trust or other lien nowor he re n~ cr ex ist in g pon the Premises a id any and all renewals, modifica tions and extensions tllereof. Tenantagrees, upon dem n~l d o execute such reasonable instruments subordinating this Lense as Landlord m y easonablyrequest. Tena nt agrees to e..tccule, and lo deliv cr to Lnnd lord a Subord inntio n. Non -Dis turba nce and Atto-ntAgreement (a "SNDA ") rcquired by Landlord's mortgagee. and any subsequent SND A which is the form rrq uired byLnndlord's mortp ge. Any SNDA will providc thatif here is a foreclosure against the Lnndlord. and Ten mt is notin dclbul t und er this Lanse. Tenant's use and occupancy sha ll not be disturb ed by the foreclosi ng party. i & successo nor assig~ls. A t ony tin ~e nd from tim e to timc. upon not less than I 5 days' prior notice by Landlord. Tenant shollexccute. acknowledg e and deliv cr to Landlord u statement of he Tenant in w r~ tin gthe "Estoppel") to the extent that

such statement is true, certifyin g thnt this Lea sr is i n f i~l iorce and effect and hos not been mod ified (or ifthe re havebeen modifications hereto. tllnt the same is i n ful l force and effect as modified and stating the modifications), and thedr~tes o which the Rent hns been p i d n advance, i f any, stnting whether or not, to the nctual knowledge of Tennnt,Landlord is in d cfault i n tho keeping. observance or perform ance o f any covenanl, agreement, term, provision orcm diti on co ntnincd in this Lense and, if so, spec ifying each such defoult o f which Tenant may have knowlcdgc, m dstating such otlier rnatte n ns L andlo rd shnll reasonably rcquest, it being intended that such statement may be reliedup011 by Londlord and nny pl.ospective purchoser, lessee, mortgagee or w ig n e e o f any mortgage of the R emises o rof tlie L andlord's interest thercin. I f Tet~nnt oils to deliver such written statement to h nd lo rd w ithin such 15 days(and without l imi htio n o f uny otller rights or remedies o f Lnndlord). it shall be deemed. lor a ll pu osa, thelanguage co~ltained n the U b p p c l s m e. correct mnd co ni ~le tc n al l respects , the mme as i fTen anl ha ~ ru c u te dthe sanie i n the form delivered, nn d Lnndlurd. any lende r ot, lessee, or purchaser from Landlord, shall be entitled torely dlereon, nnd Tenant acknowledges that i t sholl b c estopped from denying or con testing any statement therein setout.

19.2 Notwithstanding anything contained herein to tlle contrary, i n the event of any claim o f a defaultby L nn dl or di ~l erforming its covenn~its r obligations hereunder. Tcnant shall not exercise m y ights it may hnveon uucount of such default unt il (a) Tenant gi w s writt en notice of such default (which no tice shall spc ci b the exactnnture of sa id default and how tlie sonre may be cured) to Lnn dlord, and to each holder o f any such mortgage or deedoftr ust who has tliercrofore notifie d Tcnnnt in w ritin g o f ts interest and the address to which notices ore to be sent,and (b) Lundlord or each such l~olderails to cure or cause to be cured said dehult within 30 days from the receiptb Latldlo rd and such l~ old er f such notice by Tennnt. Notwithstanding the fore oing. in the event the nalr~ re f thenieged defal ~ll n tlu p r t oft he Landlord is such that the Landlord (or LandIorBs mortgnge) w ill bc unoble to curetile sanie wilhin the oforesaid 30 da pcriod, [he Landlord shall not be considered in de hu lt hereunder if Lundlordcomnlcnce s to cure sue11 default, w it ti n such 30 days, and is dil ip nt ly pursuing the cure hereof.

ARTICLEXX. NOTICES,

A ll notices or q u e s ts provided for herein must be in writin g and must be given by 1) de ositingthe satnc in the Un ited Stales n~ ai l. ddressed to the party to be notilied. postpaid. and registered or c e rt ig d withreturn receipt requested; (ii) and delivery or (iii) overnight express courier service. Notices sliall be deemedproperly given and received upon tlie second day fol low ing deposit of the same in the Un ited Stntes mail, or thesecond dny nner delivery to an ov ern igl~ t xpress courier service in accordance wi th the foregoing. Notic e handdelivered shall be deemed dclivcred on Ihc dnte o f delivery. A ll notices to be sent to either 01 the parties shall besent to the addresses for notice set out in the Basic Lease Provisions. as applicable. or at any other addresssubscquentl~ pecified in writing by tlie pir tics ltereto in accordance with the foregoing notlce procedure. Notic ewhich is refused shall be deemed given on the first day o fattem pted delivery.

If nnd when included w ithin the term "Landlord." as usedin chis instrument, tllere are more thanone person. firm or corpomtion, all shall jointly arranye among themselves for their joint execution of such noticespecifyinp an in dividu al at a specific address Sor the receipt o f notices and payments to Landlo rd which shall be theaddress and nnme set out i n the Basic Leosc Provisions un til such time as notice o f any change is provided. I f m dwhen included within the term "Tenant," ns used in this instrument, there are more than one person, firm orcorporotion. all shall jo i~i tlyorronge among themselves for their jo int cxeculion o f such a notice specifying anindividual at n specitic address for the receipt of no tices and pa ments to Tenant whicli shall be the name andaddress set out Ib r Tmant in tlie Bnsic Lcase Provisions until su ci time as notice o f any change is provided. A l lparties included witl~inlre terms "Landlord" and "Tcnant," respectively. shall be bound by noticcs given inaccordance w ith the provisions of this Artic le to h csame effect as if each had received such notice.

ARTlCLE XXI. MISCELLANEOUS,

Wlienevcr he reill the siagular number is used, the same sholl include h e plural, and the neutergender sltnll include the feminine nnd ~nasculine enders. Unlcss otl ~e mi se pecifically prov ided. the phrnse "ondemand', or Pdonip~ ly" liall nican within sevcn (7) days of written demand. Unless ot k w i s c specitically provided.any consent or ;lpproval by L nndlo nl required hereunder moy be witliheld b y Landlord in its sole discretion.


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21.2 Tenant shall not record this Lease. Any such recordation shall constitute an Event of Defaultlte re ltn de nf , however. Landlord or Tenant shall so request. tl ~e ther shall execute and deliver a recordable shortform lense (lease memurnnduni) reciting the exact C ommencem ent Date and terniination date of this Lease, andsuch other provisions o f this Lease ns Landlord and Tenant niny agree to include.

Tliis Lease and tl ~e i~ ht s nd obliy;ltio~is f the panics hercto shall be interpreted, construed andenforced in accordance with the lnws of thc State of Texas without effect of its conflict of laws provisions. Venuefor uny actioti llereunder shall solely be tlic state and fede ral courts located in Drazorin County. Texa s. If any clauseor provision o f this Lease is illegal, invalid or uneoforcenble under present or future laws effective during the Leosel'emi, it is the intention of the parties hereto that the rem in de r of tliis Leasc sbnll not be affected thereby, and theparties hereby declare tl~o t his Lease would liave been entered into witltout suc h ~lne nforc eable ortion.

21.4 Except as ulhcrwisc expressly set out elsewhere in this Lease, this Lease m y not be altered.ch an gd or am en de d, except by instrument in writing signed by both parties hereto. The te rm , provisions.covenants and conditions contained in Illis Lease slinll npply to. inure to hte benefit of a nd be bindlng upon thepnrties Bereto and upon their respective (permitted) successors, legal representatives and assigns subject to theprovisions o f Article XIV.

The captions used in lhir Lease are for convenience only and do not in any way Iunit or amplifytltc Ten ns ond provisions hereof.

21.6 One or more waivers o f or Ihe Failure to enforce a ny covenant, term or condition of lhis Lease byeither p a F h n l l not be construed as a wniver of a subsequent breach of the sntilc covenant, term or condition or nwaiver of the right to enforce snch covennnt, term or condttio~~.he consent or approval by either party to or of anyact by thc other party requiring such consent o r approvol shall no! be deemed to w i v e or render unnecessarycollselit to or approval of any subse qsent or simila r a c t

21.7 Tillie is of the csscnce with respect to Tenant's and Landlord's obligations under tliis Lease.

21.8 11 is expressly understood that Tenant's obligation to pay Rent and other s u mdue under this Leaseis an independentcovennnt of this Lease. 'Tenant m ay, subject to the other provisions of this Lease, pursue

independent wmcdles for nny breach by La~idlotd.All Rent hereunder sl~all eor interest Frotn the date due until paid at Ihe lesser of12 percent per

rnllunl or the highcst nonusurious rnte allowed by npplicable law. Interest due hereunder shall not exceed themnxitnum amount of nonusurious interest that may be contracted for. taken, reserved, charged or received underopplicable Stotc or Federal law. Any ititerest in excess of thnt maximum amo unt sl~o ll e credited to Rent due or tobecome due. or if Rent for the entire Ten11 lias been paid in full, refunded.

The volutltary o r otlicr surr ct~ der f this Lease by Tenanl or a mutual canc ellation hereof sball notwork a merger ond shnll, at L~n dlo rd's plion. terminate all or any existing sublcnses or subtenancies, or m y , atLandlord's option, opera te as anassignment to it of Tena~it's interest in any or a11 such subleases or subtenancies.

21.1 1 Notwithstautliny a ny thi ~~ gierein to the contrary. Landlord shail i n no event be liableto Tenunt forany in d i r e c t consequential damages. No person~liability of any kind or character whatsoever now athchcs or atony time herenRer under any con ditio~ rs holl atloch to Landlord or m y partners. officers, dircctors, or shareholdersof Lnndlord, as applicable. for payment of any amounts due under this Lease or for the performance of anyobligation und sr tliis Leaso. Tlie exclusive remedies of Tcnant for the failure of Landlord to perform any of itsobligations under this Leasc s l~ al l e to proceed agoinst the interest of Landlord in and to the Premises and allproceeds Ilierefrom, it being understood that in no event shnll a judgment for any deficiency or monetary claim besoug?t, obtained or enforced against the Landlord, or ally p i h e r , o fic er , director or shareholder of Landlord, osnppl~cable.

21.12 On the lasl day of the Lease Ter m (as same ma be extended), or u on the earlier termination oftl ~i s ens-na~~t sllnll penc eably and quietly leave.surrender anJyield to Lnndlord tRe Premises, h e Fall claimsunder Tenant, broom-clean and in good condition and repair (subject to Articles XI1 and XIII), except for nonnalwcar and ta r . Prior to surrender ol th e Premises to Landlord, Tenant, at its sol e cost and expense. shnll remove allliens and other etlcumbrunccs thnt hnve resulted from the acts or omissions o f Tennnt. If Tenant foils to do any ofthe foregoiny. Lnndlord. in addition to otlier mmed iesavailable to it at law or in equlty, may, without notice, enterupon. reenter, poss~rjnd repossess itself thereof by nny lawful means, sunimary proceedings. o r otherwise andmay dispossess and rcmove Tcnant and all persons and property from the Prcmises: and Tenant waives any ond alldamages or cla i~ iil or damages as a rcsi~ lt hereof. Such dispossession and removnl of Tenant shall not constitute awaiver by Landlord of any claim s by Landlord against Tenant. If the Tena nt is not in default hereunder, Tenantshall retain h e ownership of ull ~nov abl c quipment, furnlture and supplies prior to termination of this Lease,provided. Tennnt sliall repair nny injury to thc Premises resulting from such removal, If Tc nm t does ~t removesuch movable equi rnent. hrnitt11-e and supplics prior to ten ina tio n. tlien in addition to its other remediac at lnw orill equity. ~a nd lo rfs lla ll ave tlie riglit (but l~ o the obligation) to elect either (a) to have such items removed andstored. nnd all damage to the Premises resulting therefrom repnired, at Tenant' s cost and expense ; or (b) to have such~novableequipment. ti~rni turc and supplies n uto~nntically become the prope rty o f the Lnndlord, without an yconside~alion ayable to Tenanl, upon termination of this Leose. in which event Tenant shnll not have any furtherri p 1 with rcspecl tl~ ere to r reimbursement tliereror. This provislon shall survive tlte expiration or termination oftlru Leose

This Leosr. conlains the entire a reement of tlie prties hereto and supersedes all prior oral orwritten and contemporaneous or al agreements of tfic pnrties hercto. their agents. affiliates or employees. Tenantwarrants and represents to Landlord, and Landlord wnrrnnts and represents to Tenant. b a t there are no such prior orconte mpon neou s oral or written ;igreelncnts or re resentations up011 which h ep n le s have relied on in entering thisLense. Tennnt and Landlord acknowledge that tRey are relying upon the foregoing representations and warrantiesof the otlier pa* in entering [his Lease. Tenant and Landlord specifically waive any applicable law which purportsto supcrsede the foregoing.

Tlie Lundlonl ogrers to pay to Briarwood Capital Corporation (the "Broker") a real estatecomnlission equal to four and one-half percent (4.5%) of the gross Rents received; in the manner provided in asepnrnteagreclnent belween the B roker and Lnndlord.

Initialed:

LunJlor


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Tenant, provided it oys all Rent and perform s all of its obligations under this Lease, andis not indefault liereundcr bcyond any applica!le cur e period, shal l and m ypeaceably and quietly have. hold and enjoy tliePrenliscs for the Term hcrcof. from ull claims made by any party claiming by. through or undcr Landlord.

21.16 Notwitl~stand ing he Bct that this Leose in its original form)was prepared by Landlord. thisL c r e 110s becn reviewed by Tenant and in l c p l counsclmb he terms ond provisions iwceof have been negotiatedby both parties and this Lcase sholl not be construed m ore strongly agains t the dn fiin g party.

21.17 If either party hc nt o shall file any action or bring any legal proceeding against the other partyarising out of tliis Leose or for rhc declaration of any rights hereunder, the p m n il ~ n grty therein shall be entitled torecover from the other party, all costs and expens es, including reasonable attorneys' fees, incurred by the prevailin

party as determined by tlie court. including, without limitation, any post-judgment fees, cost s or expenses incu rreon ally uppeol or in collection of a ny judgment.

ARTICLE XXtl . DEFINITIONS

As used in this Lease, the following te rms liave tllc meanings set forth below:

21.1 Buildinq: The Buildiag or Buildings now situated on. or hereaner erected on the Land.

Commen cement Date: Septem ber1. 2007, or the date the Tenant opens for business, whicheverdate tirstoccurs.

22.3 Effective Date: Thc datc of exec uti ol~ f this Lcose by both Tenant and Lnndlord, as indicated onthe s i g n n ~ p a g eereof.

224 Environmental Law. Any federal. sta te or loci1 law, statute, ordinunce, rule, regulation or order ordctc~ min& n of any Govenlmenta l Authority pertaining lo health, safety or the environment. whether now iesistencc or hereoRcr enacted in efict in lhe urisdiction in which the Premises is located.

22.5 Force Ma'eare: Acts of God, ndversc weather, sbikcs , riots, shortages of labo r or materials, war.

g o v c r n m e ~ laws, rcg1llotlons or restrictions, or otlier causes beyond the control of the a pllcable party hereto.Under no circumstances will acts of Force Majeure ex c~ ls e r delay payment of Rent or ot/er s um s of money bTenant to Laadlord.

22.6 Gi~ ann tor: ny party ganrantying Tenant's obligation hereunder.

22.7 Lantllod: The party nomed as "Landlord" in Section I.l[b). its successors , legal representntives-nd assigns.

22.8 Lease Ten11 or or Term of t h i s he per iod se t forth in Sec tion I .l (i )

22.9 Leose Year: Thc term "Lease Year" na itmy be used licrein. shall.in the case of the fin1 L e a cYear, m c z h e pcriod which commences with the Commencement Date of the Lease Term and terminates on thelast day of the twelfth (12") full calendar nio ntl ~ fler such comnl encc nant, and s11ch first Lease Year shalltherefore. include twelve (12) full calendar months plus the partial month, if any, if the Commencemnt Dnte of thilease Term does not occur on the first day of a calendar nionth. Each subsequent "Lease Year" shall mean a perioof twelve,(l7,) full calendnr months commencing with the date following the last day of the first Lease Year, ancommencing wit11 encli subserluent nnnuol tu~lniversary f suc h day.

22.10 m. Tlie "Marina" is the marina facility erected on the Land (together with any otherimprovementsthereon) now or l~erentter xlstlrig.

Minimum Rent: As se t fort11 in Section I.l(i). payable in accordance with Article 111.

Permitees: Partners. otTiccrs, directors, employees. agents, conkactors, custom ers, visilors.invitees, licensees, permitted subtcnnnts and cnncessionnires of Landlord or Tenant, as the case m y e.

Permitted Use; As set forth ill Scc ~i on .l(j).

Prenliscs or Leased P~.eniises r Dcmised m i s e s : As described in Sec ti o~ ~.1(1).

12.II Real Esrntr T a x e ~ll real estate taxes, assessments, improvements or benefits, water. sewer orother rents. occupallcv tnses and othcr govc rnn ~e~ ita lmpositions and charges of emry kind and nature whatsoever.whethcr general or sbcial. foreseen or ~~nforcseenincluding all interest and penalties thereon), w hlch a1 any timcduring the Lease Term may be levied, assessed. lm osed, become due and payable or create liens upon, or arise inconnection with tlie use, occupancy or possession ofthe Premises.

22.16 or m: ll monetary obligations o f any kind or character orTeilp nt to Lnndlord under theTer ni s o f t h h ~ e a s e .

m: The pnrty nomed as 'Teluint" in Section I.l(d), its permitted successors, legnl

npresentrtive and assigns (subject to ArticleXV) . Where "Tenont" llas nssumed obl~gations r duties hereunder.such tern1 shall also include Tenan t'semployees,ogcnts andlor co ntmto rs.

22.18 Tenanl's Work: The work to be pe rfor~n cd y Tenant pursuant to Exhibit"B" ttached hereto.

ARTICLE XXIII. CROSS DEFAULT

22;1 f h e Premises is one of two tracts ol' land (the other trnct odjoins the Premises) which are ownedby diffe ren tg~ rtie s. Th e n is a lcasr of corrcs onding terms and provisions on the propert whicli adjoins thePremises an which other leasr is to tlie snme in a n t , but with a different Londlord, namely $reeport WaterfronProperties. L.P. Tlie Tenant aerecs, understan ds and acknowled4es h ut a default by the Tenant under the lew e withFreeporl Waterfront Propeniw. L.P. shall be a default under thls Lease. and a default under this Leose shallbe adcfault under the Ie m by the Tenant with Rccp ort Waterfront Properties. L.P.


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EXECUTED by Landlard

/

By: - .Narrrr: f/aJtf& 4

EXECUTED by T m n l tk & uy of u , 0J(which dote is sometimes referred toherein as the "Effcclivc Dote").

CITY 01: FREEPO RT ECONOMIC DEVELOPMENTCORPORATION, a

I :\UR IU22'40W5W41848U.WC:IUEOI


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EXHLBIT "A "

LEGAL DESCRIPTION OF THE L A N D

Henderson Tract- former home to Trico, with 200 feet frontage on the Old Brazos River, also

known as Tract111,

BlockIC ,

Freeport Towns ite,.3 8

acres.

Initialed:l'tnont:

L~ndlunl :


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EXHIBIT "B"

CONSTRUCfION RIDER

A. The Landlord sl~ all ot be re u i~ edo perform any construction work at the Premises, it beingagreed and understood lhnt tlie Tenont is to per?oi all construction work to build the Marina(in accordance witlithe Plans approved by Landlord). nnd lo maintain thc Premises in its entirety, solely at Tenant's cost and expenses.Further. the Tenant arknowlrdgcs tliut Tenn~ils relying on its own stu dies and inspections oC thePremises,and noton ally rcpresen~ations r stolemenis m y y or on behnlf.of Landlord. Tenant acknowlcdgcs hat it has inspected thePremises to Tennnt's sntisfaction and ngrces that bodlord lias made no warranties orrepresentations to the Tenantas to the condition of the Pre~iiises. xpress or implied, and that Tenanl has agreed (and hereby ngrees) to accept thePremises for thc Permitted Use in ils "AS IS, WHEREIS" condition and with all faults. Th e Landlord expresslydisclain~swarranlies and representations including, without limihtion, represent;llions oC fitness, markehbility.Inbitnbility or use for any particular purpose includin~, ithout limitation, the Permined Use as provided obove.

B. Tenanl. at Tenant's sole cost and expense, shall construct the im prov en~e nts "Tenants Work") otthc Premises substantially in accorduncc with the plans and s ecifications to be prepared by Tenant and approved byLnndlord as liereinaner provided (the "Plans"). Tenoiit {erby agr ees to l~ ir e &I1 service architectural andengineering R i m . which such firm shall conil)lcte within thirty (30) days from the Effective Date hercof, plans forTenant's Work. and deliver to Landlord within soid thirty (30) days, o full sct of construction drawings, suc hdnwings shall include archilech~ral.mcclionical, electrical and plumbing drawings, all of which are to be stampedandlor sealcd by tlie oppropriatc licelised architects and engineers (licensed to prepare such drawings in and for usein the State of Texas). Such d~aw ing s holl also show tlie approval by nll required building authori tla, and othergovern~ne~italgencies having jurisdiction o ver the Premises. All piers. and above nnd below water improvem entssliall be part of the premises, nnd renini~i andlnrds Prop e~iy t the ex pi ia ti o~ ~f this lease.

Landlord shall liave lineen (IS) days from reccipl of Tenant's pluns, within which to submit to Tenantarcqucst for any chon Its Ln~~dlordmsonably desires in such plans. If Landlord fails to respond within such timeperiod Landlord shah be deemed to have approved the plans. Any req uest for a change in the Plons shall bespecified in reasonable dclail so as to provide Tenant with information needed to m k e such Plans ncceptoble to

Landlord. Tenant shall hive tw e~ ~t y20) days from tlie date of Landlord's request witl~inwhich to amend the plansand spc ific atio ns in accordanc e with the modifications so requested by Landlord. If Landlord fails to rerpondwithin such ti n~ e eriod Landlord shall be deemed to have approved the plans. 111 approving Tenant's Plans, orcl~nn gcs liereto. Landlord and Tenant sliall act in good faidr. When Land lord and Tenant have rnuhlally agreedupon plans n~ id pecifications for ro~istructionof Tenant's Work, said Plans and specifications shall be signed orinitiuled by both Lnndlord m d Tennnt and doted. and incorporated here in by reference, but need not be attached tothis Lease. All pluns and specifications to be provided hereunder shall be at the solc cost and expense ofTe oant.

C. Tennnt sholl cause Tenant's Work to commence not later tlnn tldrty (30)da 9 after the Lnndlordapproves Tenont's Plans; and sliall coitse Tenant's Work to be comp leted in accordan ce wit{ tl ~ e lans not laterthan 150 days Collowing comniencement of Tenant's Work. If tl ~eTenont, for ony reason. fails to conipleteconslri~ction nd open for business on or beCorc September 1.2007, subject only to delays caused by Force Majeure,tltcn Landlord. in addition to nll other righ ts nnd reme dies herein provid ed,.sliall have the right to lenninate theLmse by hiving written notice to Tenant of stich termination. Upon termination o f the Lease pursuant to the termsof tliis Exhibit "C." i) Tenant shall imniediately vacate and relinquisli possession of the Premisesto Londlord. (ii)all obligations of Ihe parties to this Leasc shall cease except as may be specifically provided to tlie controry intheLcose. and Tenunt's rights under tliis Lease shall terminole and Tenant sholl havc no right or clolm against Landlordon account of improvenienls, if any, co~islruclcd y Tenant ot tlie Premises.

D. Wit11 respect to any labor performed or m aterials furnished b Tenont at the Premises. the

following shall apply: All such labor sliall be perform ed and nialerials furn ishedat

~e oa nt' s wn cost, expense,nnd

risk. Labor and malerials used in theinstallationof Tenont's cqui ment. fixtures, and furnishings. and in any othe rwork at tbc Prcmises performed by Tenant, will be subject to ~a n J o r d ' srior written approval. With respect to onycontract for labor or materials. Tenant shall ac t as principnl and not a s an agent of Lpndlord. Tenant a)jrc'es toindemnil'y and hold Landlord harmless from all liabilities, suits, causes of action, costs, fees (including, withoutlimitotion. rensonable anoniey's fees), dan~ oge s nd claims (including car & and expenses of defending against suc hclaims) of any kind arising or alleged to arise from the negliyence or willful misconduct of Tenant or of Tenant'sagents. employees, contmcturs, s ubco ~itnc tors. aboren. materialmen or invitees or arising liom ony bodily injury orproperty damage occl~ rring r alleged to l~a ve ccurred incident to Tenant's Work. All of Tenant's constn~ction tthe Premises shall be perfomled in u good and workmanlike m n n e r unreasonably satisfactory to Landlord'sarchitect and/or consrructio~inloaager and in accordance with the Plans, nnd with all applicable building codes.regulations and all other legal requiren~enls.

E. Tenant shall not allow the Premises to suffer ooy lien to be Gled against it. With respect to anycontract for labor or materials. Tenant shall, at tlie request of Landlord, cor~sets general conhactor to furnish apayment and perforn~ancebond in a form and with a company reasonably acceptable to Lnndlord securing thefaitlift~lpe do rm nc e of the work to be performed by Tenant. Landlord expressly disclaims liability for the cost oflabor pcrformed or materials h~r nis hed t the request, or for the benefit, of Tenont. Ten ant actsas principalas the wen t of Lnndlord. Tenant shall include in its contr;acts or agreem ents with contractors. materialmen, laborers,suppliers and otl~ er s erforming work for or on behnlf of Tenant, a pmv ision wher eby such parties acknow ledge thatlhey are workiny for. and will be paid solcly by Tenanl, and that they do not hove the right to look to Landlord forany payments for work done or labor or mntcrlnls supplied in connection with Tenant's Worlc. If, because of anynctual or alleged nct or on~irsion f Tenant. nny licn, aflidavit, charge or order for the payment of money shall befiled ogoinst Lnndlord, the Premises, or any purtlon tliercof or intere st thercin. whether or not soma is valid orenforceable. T enont sliall, at its own expense, c al~ se ame to b e discharged of record by payment. bonding orotherwise, nt the option olLnndlord, no later than IS days afler notice to Tennnt of the filing thereof; and in theevent Tenont fails to discharge snrie within such time. Landlord moy, but shall not be obligated to, discharge sameand Tenant shall pay to Landlord all amounts re uircd to discharge s ame within ten days of receipt of Lnndlord'sstntelnent of such nlnountu. The pmvisions o f %is pnrngnplm shall surv iveLhu termiaation or expiratlon of theLease.

F. Tenant shall i~idemnify nd hold Iinrn~lessLondlord from any claim by any party (which shallinclude r~asom~ablettorney's fees and court costs) orisink! out of any conshuction and decorating work provided atthe request. or for the benefit. of Tcnant. n i e pr ovi sio ~aof this pnrnyrapli shall survive the Termination orexpiration of the Leise.


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EXHLBlT "C "

SITE PLAN


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EXHIBIT "C-I*

SURVEY


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EXHIBIT "C"

I

I

CERTIFICATE FOR RESO LUTION

THB STATE OF TEXASCOUNTYOF BRAZOIUA

CITY OF FRBBPORT

I, the undersigned C ~t y ecretary ofthe Clty of Freeport, Texas (the "C~ty"), ereby certify as folIows

1 The C@ Council (the "C@ Comc11") of the City convenedm SPECIAL MBETING ON THB&DAYhO 2000, at lts regulnrmeed ngplace III tb e h e p o r t City Hall (tho "Meet~ng'~),nd the roll was called ofthe duly constttuted officers and members of the Clty Coun c~ lo w ~ t

James A Bameft MayorHank Lippold Counctl MemberJlm Phrlhps Council MemberJohn Sm~th,II Councrl MemberJerry Masters Councll Member

All members of theCity co on u1 were present, except the followrog !d )fi ,thusconsbtutmga quorum, whereupon among o ther busmess, the followrng was transacted at the Meetmg,a written

A RESOLUTION AUTHORIZING, APPROVING AND DIRECTING AMENDMENTTO THEARTICLES OF NCORPORATION OF ClTY OFFREEPORT INDUSTRIAL DEVELOPMENTCORPORATION (THE "CORPORAlZON") AN D AUTHORIZING, APPROVING ANDDIRECTING ADOPTION OF ARTICLES OE AMENDMENT

\

(the "Resolufron")was duly tntroduced for the conslderat~on f the Clty ConncilIt was then duly moved and seconded hattheResolub on be adopted, and, after due discussion, such motion,carrying with it the adoptron of the Resoluhon pre va~le dand corr~ed y the following votes,

AYES A1 members of the Board o f Alderman shown present above voted "Aye", exceptas noted below,

NOES

ABSTENTIONS

2 A true, full, and correct copy ofthe Resolutton adopted atthe meetlng descr~bedn the above andforegomg paragraphn ttached to and follows thlsCertificate,the Resolubon has been duly recordedm he City Councdlsmtnutes ofth e Meetmgpertalning o the adophon oftheResolution,thopersonsnamed tn theaboveandforegomgparagraphare duly chosen, quahfied, and actlng officers andmem bers of the City Council and duly and sufficiently no t~f ied f ic ~a llyand personally,m dvance, of thc une, place, and purpose of the Meetmg, and that the Resoluhon would beintroducedandconsrdered for adoptton at the M eehng andeach such ofl ce rs and members consented,in advance, to the hold lngof the

Meetlng for such purpose; and the Meetlng was open to the public, and pubhc noticewas

glven, all as requrred byChapter 551, Texas Government Code


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SIGNED AN D SEALED THIS 9 / 1 7 / 2000


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A RESOLUTION AUTHOIRIZING, APPROVING A M ) DIRECTING AMF!NDMElNT TOTHZS ARTICLES OF INCORPORA'23ON OF ClW 08 FRBBPORT INDUSTRIAL

DBVELOPNENT CORPORATXON (THE CORPORATIOW') AND AUTHORIZLNG,APPROVING) AN D DIRFXTXNCf ADOPTION OF ARTS.CLaS OF A M B N D ~

WElHUAS, on December 20, 1995, the City Council ("City Council'? af the City ofFreeport, Texas the "Ctty")adopted an ordinance authorizing and approving the creation of theCity of Freeport LndustriaI Development Corporation (the corporation'^ pursuant to therequirements of the Development Corporation Aot of 1979, as amended (the "A~'3;

WHEWAS, the City Council hereby finds and determined that the amendment to theArticles of Incorpotation of the Corporation as provided in the Atticles of Amendment of theCorporation attached hemto as Exhibit A (the "Articles of Amendment") i$ dvisable to codomto the requirements of th e Act, and that it is M e r dvisable hat suoh Artioles of Amendment

be authorizedand

approved;WHBREAS, it is hereby officially found and determined that the meeting at which this

Resolution was passed was open to the publiq and public notice of the time, place and purposeof said mming was givea, all as required by Chapter 551, Taaa Government Code

;iTHEREFORE, E IT ESOLVED Y rn ITY COUNCE OF THE CITY OF FREEPORT,TEXAS-

Sedion 1 The amendments to the Artides of Incorporation of the Corporation asprovided in the Articles of Amendment, are hereby authorized and approved and the Articles of 5

Gmendmerlt are hereby authorized and approved,6

Section 2. The City Council hereby directs that mch amendments be made to the LQrticlesof Incorporation and that such Artiules of Amendment be authorized and approved by the bowdof director^ of the Corporation 1

PASSED A M ) PPROVED, on this ,2000.

City Secretary


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ARTICLES OF AMENDMENTt I t L. O F

TEE CITY OF F'REEPORT INDUSTRIAL DEVELOPMENT CORPORATION

COUNTY OF BRAZORIA 8

Pursuant to the provisions of the Development Corporation Aot of1979, as amended (the"Act"), the following Articlesof Amendment to the Articles of Incorpmation of City of FreeportIndustrial Development Corporation (the '%orporation") were authorizedby appropriatereso lut~on f the governing body of the Clty of Freeport,Texas (the "City")

ARTICLE I

Name of Corporation

The name of the Corporation is "City of FreeportIndustrial Development Corporation"

ARTICLE II

Amendment to Articles of Incorporation

Section 1, h c l e -N m e is hereby amendeda n d shall read in its entiretyas amended asfollows

ARTICLE I

Name

The name of ths corporation 1s "fieeporf Economtc Development corporatron ".

ARTICLE II

Name and Current Address of the City of Freeport

The name of the City is the Cityof Freeport, Texas Thecurrent street addressof the City is200West Second Street,Freeport, Texas 77541

Statement and Date of Authorization of AmendmentThe amendments stated herein and these Articlesof Amendmentware authorized and approvedby appropriate resolution of thegoverning body of the City at its meetingof September 18,2000


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\ r EXECUTED THIS ' 9 / 7 9 ,2000

THE CITY O F FREEPORT INDUSTRIGLDEVELOPMENT CORPORATION

of Freeport ~ndustrralDevelopment CorparaUon-

Industrlat Development Corporatton


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i.h

* STATE OFTEXAS

COUNTY OF BXAZORIA 9

I, the uadersigned, a Not the State of Texas, do hereby oertifythat on his (gP day of ,2000, personally appeared LeeCameron and Deborah L first duly sworn, declared that theyare the persons who signed the foregoing Articles of Amendment of The City of FreeportIndustrial Development Corporation, as President and Secretw of said corporation andthat the statements therein contained are true.

IN WlTlWSS WHEREOF, I have bereunto set my hand and see1 of ofice theday and year above written.

STATE OF TEXASMyComm Erp 03-11-2001

Notary Public inState of Texas


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EXHIBIT "D "

Date: ' ! ' 2009Proparty: Hendenon Tract, fiuthcr defined on Exhiit !"An

I, Lee Cmaar,n, upon my oath, make tbis Affidavit in. omeciion with the redestate describai on Exhibit "A" attached herelo. The statements herein mado by M a n tam true and c o m t

Affiant aides as follows:

I was the Dinctor of fio City of Fmport Economic Dwalopment Corporation(the"EIDCn)fbm A P f l X L 2 0 0 1 to O C T O ~ ~ E P008 . TheEDCagmedto eell to Briarwood H o l ~ho pmperty desuibed on Bxhrit "A' (the "HendersonTract") for Two Hundred Thousaad and NollOO Doltare ($200,000.00) cash. As dimcturof the Freeport EDC, I sent Walker Royal!, r q m s a b g Marwood H o l d i a ~n e m d lan May 15,2007, confirming that tho EDC agreed to sell tha Henderson Tmcf fDrmerhama to Trim, with 200 Trcl of hntagc on the Old B m m River, slsa knawn as TractIit, Block lC , Fncport Townsite, 3 8 sores, to Brimwood Holdings fbr Two H m d dT h o 4 nd No/100 D o l h ($200,000.00). This sale was approved and authorized bythe City of Freepod W C nd its Resident, John Smith.

Ail conditions to &a mnvayance have beedl s e t i s 6 4 and tbt Henderson Trad

should have been conveyed to Briarwood Hotdinga within one handred eighty (180) dayaafter February 8,2007.

Further, Affiant sayath not.

Extouted on his the &d dayof u O \ ~ C ? ! & ~ , ~ * W .


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STATE OF TEXAS 0

C O t r r J T Y O F ~ , & gb w f a

M s nstnmtd was ~cknowlodged n , e on he day of,2009, by Lee Cameron.

Iy cornmiasion Expires

UPON RECORDING, RETURNTO:Joseph R PuIaskiweyca, Ibpltm, Pulaski Bt Zubn, P.C.11 Cinwmy Plsza, Suite 1400Houston, Tmras 77046

6 6 T P L B Z B L O XVd P T: O T 6 0 0 Z / Z O / T


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EXHIBIT "E "

Joseph R. Pulaski

From:Sent:To:Subject:

Walker Royall [[email protected]]Thursday, October 08,2009 10:56 AMJoseph R. PulaskiFW: HENDERSON TRACT

- - - - - Original Message-----From: Lee Cameron [mailto:[email protected]]Sent: Tuesday, May 15, 2007 2:53 PMTo: WALKER ROYALLSubject: HENDERSON TRACT

Walker,

It is not possible to get a legal document prepared today due to government requirements.

However, the EDC's .deal with Gala and Henderson was predicated on you buying the Hendersontract for $200,000. Both the EDC Board and the City Council have been informed of thisagreement and concur.

The deed to the Henderson property is in the name of the EDC and is being held by StewartTitle until Tr icots ew home is completed.The EDC is unanimous in their support of the sale to Briarwood and that is not about tochange.

I think this E-Mail will establish the intent of the EDC and I think it is legallybinding.

You have nothing to worry about.

LeeNo virus found in this outgoing message.\r\nhttp://www.avg-antivirus.net/Checked by AVG.Version: 7.5.467 / Virus Database: 269.7.1/805 - Release Date: 5/15/200710:47 AM

Original Petition Cause 54864

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Transcript of Original Petition Cause 54864