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HomeMy WebLinkAbout020881 ORD - 02/27/1990AN ORDINANCE AUTHORIZING THE EXECUTION OF A ONE-YEAR LEASE OF THE L -HEAD BAITSTAND WITH PATRICIA JANE STUBBS OR RALPH SEAFOOD, INC. FOR A CONSIDERATION OF $850 PER MONTH OR 6 PERCENT OF GROSS RECEIPTS, WHICHEVER IS GREATER; AND DECLARING AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Manager is hereby authorized to execute a one-year lease of the L -Head Baitstand with Patricia Jane Stubbs or Ralph Seafood, Inc. for a consideration of $850 per month or 6 percent of gross receipts, whichever is greater, all as more fully set forth in the lease agreement, a substantial copy of which is attached hereto and made a part hereof, marked Exhibit A. SECTION 2. That upon written request of the Mayor or five Council members, copy attached, to find and declare an emergency due to the need of executing the abovementioned lease agreement at the earliest practicable date, such finding of an emergency is made and declared requiring suspension of the Charter rule as to consideration and voting upon ordinances at three regular meetings so that this ordinance is passed and shall take effect upon first realing as an emergency measure this the day of (Aft 1tV 19 !L ATTEST: City Secret MAYOR THE CITY OF CORPUS CHRISTI APPROVED: 4j DAY OF Fe hrwary 19 9 0 HAL GEORGE, CITY ATTORNEY l ByAAtant City torney ORD-RES\90011 MICROFILM LEASE AGREEMENT THE STATE OF TEXAS § KNOW ALL BY THESE PRESENTS: COUNTY OF NUECES § This Agreement is made and entered into by and between the City of Corpus Christi, a municipal corporation operating under the home rule laws of the State of Texas, located in Nueces County, Texas, hereinafter called "City", and Patricia Jane Stubbs hereinafter called "Lessee"; W I T N E S S E T H: 1. LEASED PREMISES. City, in consideration of Lessee's faithful performance of the covenants described herein, hereby leases to Lessee the following described premises (hereinafter the "Leased Premises") for a period of one (1) year, commencing the day after Council approval of the ordinance authorizing execution of this Lease. that certain approximately 3600 square foot area located over the water on the northwest corner of the L -Head within the City of Corpus Christi, Nueces County, Texas including improvements thereon (a 25' x 31.5' shed with sink, sales counter, shelves, bait boxes, circulation lines, pumps, and bait well, all of which are hereby acknowledged by Lessee to be City property) as more specifically described on the attached Exhibit A. 2. USE. The Leased Premises shall be used for the sole purpose of operating a seafood business and baitstand, and Lessee's activities shall be limited to the following: A. direct sales to the public of food and drink items such as wrapped sandwiches, taquitos, hot dogs, popcorn, packaged chips, peanuts, soft drinks, ice, packaged beer and wine for off -premises consumption, beer and wine for on -premises consumption, candy, ice cream, snow cones, and seafood (fresh, frozen and cooked). Seafood sold hereunder may be purchased by Lessee, as well as caught through Lessee's fishing operations. B. direct sales to the public of fish bait (live and dead), fishing tackle, sunglasses, beach towels, and suntan lotion. C. rental of fishing equipment and boats to the public. No more than six fishing boats for rental \AGR-LSE\90JB001.009.aar 1 Y(l-ti U 'T /1l Lease Agreement February 7, 1990 may be kept on or about the leased premises without the written consent of the Marina Superintendent. Lessee shall provide identification numbers in writing to the Marina Superintendent of all boats to be leased. Lessee is solely and exclusively responsible for the safe operation and condition of leased boats. No boat shall be rented hereunder without a motor, in good operating condition, provided by either Lessee or the renter. No boat shall be rented for operation by rowing or paddling. D. cleaning fish and shrimp; however, no waste from same shall be allowed to enter Marina waters. The Marina Superintendent may authorize sales or rentals of other items of like kind. No sale shall be made of any item in a glass container. All sales and rental must be in compliance with all federal, state, and local laws. 3. RENT. For and in consideration of the rights and privileges herein granted, Lessee hereby agrees to pay City each month six percent (6%) of the preceding calendar month's gross receipts from all sales, rentals, and activities on the leased premises less sales tax, or eight hundred and fifty dollars ($850.00), whichever is greater, said payment being due and payable at the office of the Collections Section of the Finance Department, 319 N. Mesquite, P.O. Box 9277, Corpus Christi, Texas 78469, on or before the tenth day of each month during the term of this Agreement, accompanied by the certified monthly financial statement required by this Agreement. 4. REFUND. The minimum monthly rental for said leased premises will be refunded on a pro rata basis based on the ratio of the number of unusable days to a thirty -day month when the buildings are rendered unusable because of damage resulting from fire, water, or wind not caused by negligence of Lessee. 5. RECORDKEEPING. Lessee shall furnish to the City's Director of Finance a certified monthly statement of gross receipts on or before the tenth day of each month during the term of this Agreement itemizing dates and times of operation, which statement form shall be approved prior to commencement of this lease by said director. Said statement form may be altered from time to time at the discretion of said director. Lessee shall keep strict and accurate books of account of all receipts collected. Said books of account shall be open for inspection, copying, or audit by City at all times. All underlying documentation for Lessee's certified monthly statements, including cash register tapes, purchase orders, invoices, sales receipts and the like, shall be preserved by Lessee during the lease term and for at least two years thereafter. City may terminate this lease for failure to preserve such records or to provide them to City upon request. \AGR-LSE\90JB001.009.aar 2 Lease Agreement February 7, 1990 6. DELINQUENCY. Lessee shall be deemed "delinquent" if the City has not received Lessee's monthly rental payment and financial statement on or before 5:00 p.m. on the tenth (10th) day of the month. If the tenth day of the month falls on a weekend or a holiday, payment and financial statement shall be tendered on the first business day thereafter. Lessee shall be in default for purposes of paragraph 26 if Lessee fails or refuses to pay the amount due and/or provide the required financial statement within five (5) days after City has sent written notice of delinquency to Lessee. Should said rental not be received by the twentieth day of the month, it is agreed that the full rental amount due or any portion remaining owing shall bear interest at the rate of ten percent (10%) per annum or the maximum allowable legal rate of interest, whichever is less, from said twentieth day until paid. Such interest shall be payable immediately upon demand. 7. ASSIGNMENT. Lessee shall not assign nor convey any of the rights herein granted without the written approval of the City Manager first being obtained. 8. COMPLIANCE WITH LAW. Lessee shall comply with all City health regulations and ordinances, including obtaining required permits and installation of required equipment of the City as they affect the concession operation. 9. PRICE SCHEDULE. Lessee shall post in a conspicuous place on the Leased Premises a schedule of prices for all items to be sold which are not in excess of those charged under similar conditions elsewhere in the City. 10. REFUSE. Lessee shall maintain a clean and neat operation within the leased area and properly dispose of any debris or refuse resulting from operation of said premises. 11. UTILITIES/ELECTRICITY. Electricity and water used by Lessee will be provided by City at no cost to Lessee, except that air conditioning equipment and service is to be at Lessee's expense. 12. HOURS OF OPERATION. Lessee shall open to the public and operate the Leased Premises, at a minimum, during the following days and times: Winter Hours (December, January, February) Sunday - Friday 6:00 a.m. to 6:00 p.m. Saturday 6:00 a.m. to 8:00 p.m. Normal Hours (March, April, May, June, July, August, September, October, and November) Monday - Saturday 6:00 a.m. to 10:00 p.m. Sunday - 6:00 a.m. to 8:00 p.m. \AGR-LSE\90JB001.009.aar 3 Lease Agreement February 7, 1990 Provided, however, the Marina Superintendent may require that Lessee open at 5:00 a.m. for some or all days from the Memorial Day weekend through the Labor Day weekend. The hours of operation on the bait stand shall be strictly complied with, unless the temperature is below 40°F., small craft and hurricane warnings are posted, or a severe weather alert prevents operations. Other closings require the written consent of the City's Marina Superintendent. 13. SIGNS. Lessee shall not place, paint, or otherwise affix any signs at, on or about the property, or any part thereof, except as first approved in writing by the City's Marina Superintendent. The City shall have the right at any time to require Lessee to remove, paint or repair any of the signs allowed. Should Lessee not remove, paint or repair said signs within ten days of demand thereof in writing, the City may fulfill its demands and charge the expense of same to Lessees. 14. OUTSIDE STORAGE. Lessee shall not place ice -making machines, iceboxes, or storage boxes in or around the leased premises without prior written approval of the Marina Superintendent. 15. MAINTENANCE. City will maintain the exterior of buildings on the Leased Premises and utility lines serving same and Lessee will maintain the interior of the buildings, including painting and light fixtures. 16. SUBLETTING. Lessee shall not sublet, or attempt to sublet, the leased premises without the prior written consent of the City. 17. INDEMNITY. Lessee shall fully indemnify, save and hold harmless the City of Corpus Christi, its officers, employees, and agents (hereinafter "the Indemnitees") against any and all liability, damage, loss, claims, demands and actions of any nature whatsoever on account of personal injuries (including, without limitation on the foregoing, workers' compensation and death claims), or property loss or damage of any kind whatsoever, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any way connected with, the performance of this Agreement, unless such injury, loss or damage shall be caused by the sole negligence of Indemnitees. Lessee shall at its own expense investigate all such claims and demands, attend to their settlement or other disposition, defend all actions based thereon and pay all charges of attorneys and all \AGR-LSE\90JB001.009.aar 4 Lease Agreement February 7, 1990 other costs and expenses of any kind arising from any such liability, damage, loss, claims, demands, and actions. 18. INSURANCE. Lessee shall, during the lease term, obtain and carry a policy of general liability insurance on the leased land and improvements thereon, including coverage for every activity to be engaged in on the premises including but not limited to coverage for poisoning or illness from food or drink, boat rentals and alcoholic beverages, by terms of which the City shall be named as additional insured. Such policy shall include coverage in the amount of Five Hundred Thousand Dollars ($500,000.00) combined single limit for bodily injury or death, and Fifty Thousand Dollars ($50,000.00) for a claim of property damage. The City shall be furnished with a certified copy of such effective policy of insurance prior to the commencement of the lease term. Said policy shall include a provision that the policy may not be canceled or terminated until the City has been given thirty (30) days written notice of such cancellation. City may require reasonable increases in said coverage so that the present real value of said coverage is not diminished over the course of this lease. Lessee shall also, at its expense, cover all its employees with workers' compensation insurance to the State law limit. 19. SPECIAL EVENTS. Lessee acknowledges that City may authorize special events on the L -Head, including but not limited to the Ultimate Yacht Race, and that City may authorize other concessions on the L -Head during such events. 20. NON-DISCRIMINATION. Lessee warrants that it is and will continue to be an Equal Opportunity Employer and hereby covenants that no employee or customer shall be discriminated against because of race, creed, sex, handicap, color, or national origin. 21. INSPECTION. City personnel shall have the right to enter upon the leased premises at all times for purposes of inspection to protect its interest as lessor. Nothing in this lease agreement shall be construed to restrict City in the exercise of its police powers. 22. LEASE RELATIONSHIP. It is specifically agreed and understood that the parties intend and do hereby create a landlord/tenant relationship, and this agreement shall be construed conclusively in favor of that relationship. Nothing herein contained shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent, or any other provision contained herein, or any of the acts of the parties hereto, shall be deemed to create any relationship between the parties herein other than that of landlord and tenant. \AGR-LSE\90JB001.009.aar 5 Lease Agreement February 7, 1990 23. TAXES AND CHARGES. Tenant shall timely pay all ad valorem and other taxes, if any, which have been or shall be levied, assessed or otherwise imposed on the demised premises and improvements thereon during the lease term. It is the intent of this lease that City shall receive the rental specified in this lease net and clear of all costs or charges relating to the demised premises, and that Tenant shall pay all charges and expenses of every nature that may be imposed upon the demised premises and its appurtenances during the term of this lease except as expressly provided herein. 24. CHANGES IN LEASE. This lease contains the entire agreement between the parties. None of the covenants, terms or conditions of this lease shall in any manner be altered, waived, changed or abandoned except by a written instrument, duly signed by the parties hereto, and not otherwise, and no act or acts, omission or omissions or series of acts or omissions, or waiver, acquiescence or forgiveness by the City as to any default in or failure of performance either in whole or in part by Lessees as to any of the covenants, terms or conditions of this lease, shall be deemed or construed to be a waiver by the City of the right at all times in the future to insist upon the full and complete performance by Lessee of each and all the foregoing covenants, terms and conditions thereafter to be performed according to the provisions of this lease in the same manner and to the same extent as the same are herein covenanted to be performed by the Lessee. 25. LIABILITY OF LESSEE. Lessee shall be liable to City for any damage to City property caused by Lessee, or its officers, agents, or employees. City does not and will not in any way be responsible or liable for any of the financial obligations which may be incurred or created by Lessee, or its officers, agents, or employees. Lessee shall have no authority to act for City in any respect. 26. TERMINATION. 1. Upon occurrence of any Event of Default, City may, at its option, in addition to any other remedy or right given hereunder or by law, (a) Give notice to Lessee that this lease shall terminate upon the date specified in the notice, which date shall not be earlier than five (5) days after the giving of such notice, or (b) immediately or at any time after the occurrence of such Event of Default, and without notice or demand, enter upon the demised premises or any part thereof in the name of the whole, \AGR-LSE\9OJB001.009.aar 6 Lease Agreement February 7, 1990 and upon the date specified in such notice, or in any other notice pursuant to law, or upon such entry, this lease and the term thereof shall terminate. 2. Each of the following shall be deemed an Event of Default: (a) default in the payment of rent or other payments hereunder; (b) intentional, knowing, or fraudulent failure under paragraph 5 to maintain strict and accurate books of account, to furnish an accurate statement of gross receipts to the City, or to furnish said books of account to City for inspection; (c) failure to have in effect at all times a policy of liability insurance as provided in paragraph 20; (d) abandonment of the premises; (e) possession of or permitting controlled substances on the Leased Premises, or dealing in such sub- stances; (f) if Lessee shall default in the performance or observance of any other covenant or condition of this lease by Lessee to be performed or observed, or if Lessee shall fail to make reasonable efforts in the light of the surrounding circumstances to keep substantially all the premises occupied and open for business, the expiration of the period of fifteen (15) days after giving notice of such default or failure to Lessee by City. 3. Upon termination of this lease as hereinabove provided, or pursuant to statute, or by summary proceedings or otherwise, City may enter forthwith without further demand or notice upon any part of the premises, in the name of the whole, if it has not theretofore done so, and resume possession either by summary proceedings, or by action at law or in equity or by force or otherwise, as City may determine, without being liable in trespass or for any damages. In no event shall such reentry or resumption of possession or reletting as hereafter provided be deemed to be an acceptance or surrender of this lease or a waiver of the rights or remedies of City hereunder. 4. Upon termination of this lease in any manner as herein provided, or by summary proceedings or otherwise, Lessee shall pay to City forthwith without demand or notice the sum of the following: (a) all rent accrued to the date of such termination and a proportionate part of the rent otherwise payable for the month in which such termination occurs; (b) the cost of performing all covenants of the Tenant relating to the condition of the premises during \AGR-LSE\90JB001.009.aar 7 Lease Agreement February 7, 1990 (c) the term and upon expiration or earlier termina- tion of this lease; the cost of the following: (1) obtaining possession of the premises; (2) removal and storage of Lessee's or other occupant's property; (3) reasonable expenses and attorneys fees necessary to enforce this agreement. The foregoing rights and remedies given to City are, and shall be deemed to be, cumulative of any other rights of City under law, and the exercise of one shall not be deemed to be an election, and the failure of City at any time to exercise any right or remedy shall not be deemed to operate as a waiver of its right to exercise such right or remedy at any other or future time. 27. HOLDING OVER. If Lessee shall, with the knowledge or consent of City, continue to remain on the Leased Premises after the period for which it is hereby leased, then in such case Lessee shall become a tenant from day to day, notwithstanding the duration of time for which rent may be paid, and the City Manager shall have the absolute right to terminate such tenancy upon 24 hours notice. 28. PUBLICATION COSTS. Lessee shall reimburse City for the cost of publishing in the legal section of the local newspaper the lease description required by the City Charter. 29. L -HEAD IMPROVEMENTS. Lessee and City acknowledge that City may, during the term of this Lease, undertake improvements on the L -Head which may adversely affect Lessee's volume of business. In such event Lessee and City Manager will agree to a reduction in rent during any such period reasonably proportionate to Lessee's loss of business as indicated by Lessee's history of operations under this Lease; provided, that such reduction shall be contingent upon Lessee's continued best efforts to maximize its volume of business. Lessee and City Manager may agree to reduction in Lessee's minimum business hours during any such period. 30. NOTICES. Any notices provided for under this lease may be given, in writing, to City, by delivering or mailing the notice to the Director of the Park and Recreation Department at City Hall, P.O. Box 9277, Corpus Christi, Texas 78469, and to Lessee by delivering the notice or placing it in first-class mail to Patricia Jane Stubbs 3030 Santa Fe, 78414, Corpus Christi, Texas or such other address as may be furnished by either party to the other in writing. 31. FUTURE LEASE. It is understood that lessee's performance under this lease will be monitored by City Staff to assist Staff in deciding whether it should recommend that Lessee be granted a five-year or other longer term lease by the City Council. \AGR-LSE\9OJB001.009.aar 8 Lease Agreement February 7, 1990 32. CAPTIONS. The captions employed in this Lease are for convenience only and are not intended to and shall not in any way limit or amplify the terms or provisions hereof. WITNESS OUR HANDS at Corpus Christi, Texas, this the day of , 1990, in duplicate originals, both of equal force and effect. ATTEST: CITY OF CORPUS CHRISTI By: Armando Chapa, City Secretary Juan Garza, City Manager APPROVED: HAL GEORGE, CITY ATTORNEY LESSEE By.As Stant City torney Patricia Jane Stubbs Date: a" p 9 {� \AGR-LSE\90JB001.009.aar 9 CV3H Nlna 11\111 6964X3 Corpus Christi, Texas day of �� i� � l � (� ``i 1 , 19 II TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at three regular meetings; I/we, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Respectfully, Council Members 'j `2 i 4 ` MAYOR THE CITY OF CORPUS CHRISTI The above ordinance was passed by the following vote: Betty N. Turner Cezar Galindo Leo Guerrero Tom Hunt Edward A. Martin Joe McComb Clif Moss Mary Rhodes Frank Schwing, Jr. 045 lc ) CO