HomeMy WebLinkAbout026324 ORD - 06/28/2005
ORDINANCE
AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A
FIVE-YEAR LEASE WITH BRIAN CARSON D.B.A. CARSON'S DELI AND
CATERING FOR THE USE OF MERRIMAN-BOBYS HOUSE IN HERITAGE
PARK, TO OPERATE AS A FOOD SERVICE OPERATION, IN
CONSIDERATION OF MONTHLY PAYMENT OF THE GREATER OF 10% OF
MONTHLY GROSS SALES LESS SALES TAX OR MINIMUM MONTHLY
RENTAL FEE OF $500; PROVIDING FOR SEVERANCE; AND DECLARING
AN EMERGENCY
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS:
SECTION 1. The City Manager, or his designee, is authorized to execute a five-year lease
with Brian Carson doing business as Carson's Deli and Catering, for the use of the
Merriman-Bobys House in Heritage Park, for food service operations, in consideration of
monthly payment of the greater of 10% of monthly gross sales less sales tax or minimum
monthly rental fee of $500. A copy of the lease is attached as Exhibit A and a copy of the
lease shall be filed with the City Secretary.
SECTION 2. If, for any reason, any section, paragraph, subdivision, clause, phrase, word, or
provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court
of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause,
phrase, word or provision of this ordinance, for it is the definite intent of the City Council that
every section, paragraph, subdivision, phrase, word and provision hereof shall be given full
force and effect for its purpose.
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026324
LEASE AGREEMENT BETWEEN THE
CITY OF CORPUS CHRISTI AND
Carson's Deli and Catering
STATE OF TEXAS ~
~
COUNTY OF NUECES ~
KNOW ALL BY THESE PRESENTS:
This lease agreement ("Lease") is entered into by and between the City of Corpus Christi, a
Texas home-rule municipal corporation ("City"), acting through its duly authorized City Manager, or
his designee ("City Manager"), and Brian Carson dba Carson's Deli and Catering.
WHEREAS, the City owns the Merriman-Bobys House located in Heritage Park at 1521 North
Chaparral Street, Lots 5 and 6, Block 61, Beach Portion, Corpus Christi, Nueces County, Texas
("Premises");
WHEREAS, Lessee has requested the use of the Premises for the purpose of operating a food
service operation subject to the terms, conditions and covenants contained in this Lease; and,
WHEREAS, City desires to allow Lessee to use the Premises for this purpose.
NOW, THEREFORE, City and Lessee, in consideration of the mutual promises and covenants
contained herein, agree as follows:
Section 1 Definitions.
(A) City means the City of Corpus Christi, Nueces County, Texas, a home rule municipal
corporation.
(B) City Manager means the City's City Manager or the City Manager's designee.
(C) Council means the City's City Council.
(D) Director means the City's Director of Park and Recreation or the Director of Park and
Recreation's designee.
(E) Finance Director means the City's Director of Finance or the Director of Finance's designee.
(F) Gross Receipts is defined in Section 5(B) of this Lease.
(G) Holdover Period means any period of time, measured in pro rata monthly increments for
rental payment purposes, that Lessee remains in the Premises after the expiration of the
original term of this Lease, the term being five years.
(H) Lease means this lease document, including all attached and incorporated exhibits.
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(I) Lessee means Carson's Deli and Catering.
(J) Parks means the City's Park and Recreation Department.
(K) Premises means Lots 5 and 6, Block 61, Beach Portion, Corpus Christi, NueC8s County,
commonly known as the Merriman-Bobys House, located at 1521 North Chaparral Street, in
the City.
(L) Risk Manager means the City's Director of Risk Management or the Director of Risk
Management's designee.
Section 2 Purpose. The purpose of this Lease, between City and Lessee, is to enable Lessee to
operate a food service business in the Premises that will make direct sales to the public of food and
non-alcoholic beverages. Lessee shall establish and maintain during the term of this Lease a food
service business, operated as a restaurant, and shall not operate the Premises for any other purpose
without Director's prior written approval. Lessee may permit its customer to bring customer-
purchased wine onto Premises for customer's use and consumption with meal at Premises, so long
as Lessee remains at all times in compliance with all applicable rules of the Texas Alcoholic
Beverage commission and not allow its staff to store, serve, chill, open, possess or maintain the wine.
Section 3 Term. The City leases the Premises, subject to all terms and conditions of this Lease, to
the Lessee for a period of five (5) years, beginning August 1, 2005, upon final Council approval, and
this Lease will continue in force, unless sooner terminated as set out herein, and extending thereafter
as a month to month tenancy ("Holdover Period"), notwithstanding the duration of time for which
rent may be paid, upon the same terms and conditions as set out herein; provided, however, that the
Holdover Period shall not exceed twelve months in length; further provided, that the City Manager
has the absolute right to terminate the tenancy with or without cause upon sixty (60) days written
notice to Lessee.
Section 4 Contact PersonlLease Administrator. For this Lease, the City's contact person and
lease administrator is the Director.
Section 5 Lease Payments.
(A) For and in consideration of the rights and privileges herein granted, Lessee agrees to pay the
City, on a monthly basis, the greater of 10% of monthly gross sales, less sales tax or a
minimum monthly rental fee of $500.
(B) "Gross Receipts " means all monies paid or payable to Lessee for sales made and for
services rendered at or from the Premises, regardless of when or where the order therefor is
received, and outside the Premises, if the order therefor is received at the Premises, and any
other revenues of any type arising out of or in connection with Lessee's operation at the
Premises including, but not limited to, those operations of Lessee's agents or permitted
sub lessees arising from any sales made or services rendered at or from the Premises. Gross
Receipts do not include (i) any taxes that are separately paid by a customer and directly
payable to the taxing authority by the Lessee, (ii) alcoholic beverage taxes collected for
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remittance to the taxing authority from the retail sale of alcoholic beverages and (iii) tips
earned by wait staff.
(C) All rental fees are due and payable on or before the 10th day of each month for the term of this
Lease. Payment must be made to the order of the City of Corpus Christi and mailed to the City
Collections Department, P O. Box 9257, Corpus Christi, TX, 78469, or delivered to City Hall at
1201 Leopard Street, Corpus Christi, TX, 78401.
Section 6 Statements; Record Retention.
(A) Lessee must furnish to the Finance Director a certified monthly statement of Gross Receipts
and sales taxes on or before the 10th day of each month during this Lease, itemizing sales
amounts and dates and times of operation for the preceding calendar month. The statement
form will be approved, prior to commencement of this Lease, by the Finance Director. The
statement form may be altered, during the term of this Lease, at the Finance Director's
discretion.
(B) Lessee must keep accurate books of account of all Gross Receipts collected. The books of
account will be open for inspection, copying or audit by the City Manager at all reasonable
times. Failure to provide the books of account, upon request of the Director, is cause to
terminate this Lease.
(C) All underlying documentation for Lessee's certified monthly statements of Gross Receipts
including, but not limited to, cash register tapes, purchase orders, invoices, and sales receipts
must be preserved by Lessee during the term of this Lease and for at least two years
thereafter. Failure to preserve, or to provide to the Director on request, the documentation, is
cause to terminate this Lease.
(D) No later than the last day of the month in which such return is due, the Lessee must provide
the Director with copies of its Texas sales and use tax returns for all sales at the Premises.
Failure to provide said copies is cause to terminate this Lease.
Section 7 Delinquency and Default Regarding Rental Payments.
(A) Lessee is "delinquent" if the City has not received Lessee's monthly rental payment and
statement of Gross Receipts on or before 5:00 p.m. on the 10th day of the month in which
payment is due. If the 10th day on the month falls on a weekend or holiday, the payment and
statement of Gross Receipts must be tendered on the first business day thereafter.
(B) Lessee is in "default" for purposes of Section 24 of this Lease if Lessee fails or refuses to pay
the amount due or provide the required statement of Gross Receipts within five (5) days after
the City has sent a written notice of delinquency to Lessee.
Section 8 Hours of Operation. Lessee will be open to the public and operate the Premises, during
normal operating hours on a year-round basis. The restaurateur has the option of starting with lunch
hours and then adding dinner hours once the restaurant is successful. The restaurateur will also
have the option of determining business hours during the weekend. Hours of operation may be
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adjusted, for scheduled seasonal activities and other special events scheduled by Parks, with the
prior written approval of the Director.
Section 9 Public Tours. Lessee grants to Parks the right to continue free public tours through the
Premises.
Section 10 Parking.
(A) Lessee is given, during the term of this Lease, the right to designate up to eight (8) parking
spaces within the general parking area of Heritage Park. If Lessee chooses to designate the
parking spaces, the Director shall determine and approve Lessee's method and manner of
designation of the spaces. Lessee shall bear any and all expense associated with designation
of the parking spaces.
(B) Lessee's designated parking spaces are for use by customers of the Premises during Lessee's
hours of operation only. At all other times when Lessee is not open under normal operating
hours, any member of the public can utilize the designated parking spaces.
(C) Lessee's designated parking spaces are for use by passenger vehicles only and must not be
utilized for commercial purposes, such as loading and unloading of equipment or supplies, by
Lessee or Lessee's vendors or suppliers.
Section 11 Utilities.
(A) It is understood by and between the parties that scheduled, regular garbage collection service
is available to the Premises and that the provision of this service shall be the responsibility of
Parks under the City's present Heritage Park maintenance program.
(B) The cost to Lessee, for the provision of garbage collection service by the City, is included and
made a part of Lessee's monthly lease payment.
(C) Lessee shall deposit, or cause to be deposited, all garbage and debris generated at the
Premises into the garbage dumpster provided by City at the Premises. Any garbage needs
Lessee may determine are required at Premises, beyond regular service, or in addition to
existing park dumpster capacity, shall be the responsibility of, and at the sole expense of,
Lessee. Lessee may request that City Director obtain a larger container (6 cubic yard
approximately) from City contractor for Lessee's use, with Lessee to pay City the monthly rate
of the difference between a four (4) cubic yard container and a six (6) cubic yard container.
(D) The Premises is wired for telephone service; however, Lessee shall contract separately with a
telephone service provider of Lessee's choice for the provision of active telephone service,
which service is to be incurred at Lessee's sole expense.
(E) The Premises is wired for electrical service. Lessee shall bear the cost of all electricity used at
the Premises for the term of this Lease. Additionally, Lessee shall bear the cost for the use
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and maintenance of the existing security alarm system in the Premises for the term of this
Lease.
(F) Water and sewage service is available at the Premises, and the cost to Lessee, for the
provision of water and sewage service by the City, is included and made a part of Lessee's
monthly lease payment.
(G) Should Lessee require any modification to the provision of the enumerated utilities in this
section or require any additional utility service not herein covered during the term of this Lease,
Lessee shall submit a request, in writing, to the Director for consideration and possible
amendment of this Lease.
(H) Lessee shall pay for all utilities related to usage of Premises, excluding water, and sewage
service as herein provided for, prior to the due date. Failure to pay any utility bill(s) prior to the
due date constitutes grounds for termination of this Lease.
Section 12 Maintenance.
(A) The City will maintain the exterior of the Premises and adjacent park grounds, including
buildings and public parking lots in the vicinity of the Premises, subject to sufficient annual
budget appropriations. The City shall be responsible for major repairs to the exterior of the
Premises, subject to sufficient annual budget appropriations, unless damage occasioned to the
exterior is or was caused by Lessee's negligence. It is further understood and agreed that the
City shall maintain the utility lines serving the Premises, subject to sufficient annual budget
appropriations.
(B) Lessee covenants and agrees to maintain the interior of the Premises during the term of this
Lease, such maintenance to include, but not be limited to, painting and keeping in good repair
the plumbing and light fixtures. Any additional maintenance required to maintain Lessee's food
service in the Premises, during the term of this Lease, is the sole responsibility of Lessee.
(C) Lessee shall be responsible for cleaning the entire Premises and will supply paper goods and
chemicals necessary for cleaning. Clean-up duties will consist of keeping the entire interior
area clean within the standards of the Texas Department of Health, the Nueces County-City of
Corpus Christi Health District, and all applicable laws and ordinances, as amended, of the
State of Texas and the City, respectively, pertaining to food and beverage service operations.
Clean-up tasks will include, but are not limited to, keeping tables clean, cleaning up spilled
food and drinks, and includes the removal of trash from the Premises and the placement of
same trash in the on-site garbage dumpster provided by the City, as set out in Section 11 (C)
above.
Section 13 Furniture, Fixtures, and Equipment.
(A) It is understood that Lessee will be responsible for furnishing and equipping the Premises and
that the City has no obligation to furnish any equipment or furnishings for Lessee.
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(B) All personal property and trade fixtures furnished by or on behalf of Lessee will remain the
property of the Lessee, with the exception of the ventless hood system presently installed in
the Premises, unless such personal property and trade fixtures are specifically donated to the
City during the term of this Lease.
(C) All capital construction, such as installation of plumbing fixtures, the ventless hood system, and
architectural changes to the interior, will remain the property of the City.
(D) In the interest of maintaining the current Victorian theme of Heritage Park, the Director shall
retain the right to approve all furnishings and fixtures that may be installed in the Premises,
during the term of this Lease, prior to installation.
Section 14 City Use.
(A) If Lessee is not using the Premises, City has the right to use any or all of the Premises for City
purposes. Lessee shall not be entitled to any compensation, in whatever form, either tangible
or intangible, for the City's use of the Premises.
(B) City retains the right to use or cross the Premises with utility lines and easements. City may
exercise these rights without compensation to Lessee for damages to the Premises from
installing, maintaining, repairing, or removing the utility lines and easements. City must use
reasonable judgment in locating the utility lines and easements to minimize damage to the
Premises.
Section 15 Laws Affecting Operation of Premises and Performance.
(A) Lessee shall ensure that the operation of the restaurant is, at all times during the term of this
Lease, operated in accordance with all applicable Federal, State, and local laws, ordinances,
rules and regulations.
(B) In addition, Lessee shall ensure that all sales of alcoholic beverages by Lessee are in
compliance with all applicable provisions of State law pertaining to the sale of alcohol and
alcoholic beverages at the Premises.
(C) Lessee shall bear the expense and responsibility of meeting all requirements for acquiring all
applicable licenses and permits. Lessee shall also bear the expense of meeting and
complying with all health regulations and Certificate of Occupancy requirements applicable to
food and beverage operations.
(0) Furthermore, Lessee shall comply with any other Federal, State and local laws, ordinances,
rules and regulations applicable to Lessee's performance under this Lease. This Lease is also
subject to applicable provisions of the City Charter.
Section 16 Inspection. Any officer or authorized employee of the City may enter upon the Premises,
at all reasonable times and without notice, to determine whether Lessee is providing maintenance in
accordance with and as required by Sections 12(B) and (C), or for any other purpose incidental to
City's retained rights of and in the Premises.
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Section 17 Capital Improvements. City may, from time to time, and in City's sole discretion,
undertake capital improvements to the Premises. Prior to commencing any capital improvements,
City shall notify Lessee, in writing, of the dates in which Lessee shall be required to vacate the
Premises, should the Director deem this necessary. Lessee agrees that the term of this Lease shall
not be prorated for the period in which Lessee is restricted from entering the Premises for the
purposes of constructing capital improvements. Lessee acknowledges and understands that City
shall have no obligation to provide an alternate location for Lessee during any period that Lessee
must vacate the Premises.
Section 18 Relationship of Parties. This Lease establishes a landlord/tenant relationship, and none
other, and this Lease must be construed conclusively in favor of that relationship. In performing this
Lease, both City and Lessee will act in an individual capacity and not as agents, representatives,
employees, employers, partners, joint venturers, or associates of one another. The employees or
agents of either party shall not be, nor be construed to be, the employees or agents of the other party
for any purpose whatsoever.
Section 19 Insurance.
(A) Lessee shall secure and maintain at Lessee's expense, during the term of this Lease,
insurance of the type and with the amount of coverage shown on the Attachment, which is
incorporated in this Lease by reference. Lessee shall use an insurance company or
companies acceptable to the Risk Manager. Failure to maintain the insurance during the term
of this Lease, at the limits and requirements shown on Attachment constitutes grounds for
termination of this Lease.
(8) The Certificate of Insurance must be sent to the Risk Manager prior to occupancy of and
operations at the Premises. The Certificate of Insurance must provide that the City will have
thirty (30) days advance written notice of cancellation, intent to not renew, material change, or
termination of any coverage required in this Lease.
(C) Lessee shall provide, during the terrn of this Lease, copies of all insurance policies to the Risk
Manager upon written request by the City Manager.
(D) The Risk Manager shall retain the right to annually review the amount and types of insurance
maintained by Lessee, to require increased coverage limits, if necessary in the interest of
public health, safety, or welfare, and to decrease coverage, if so warranted. In the event of
any necessary increase, Lessee shall receive thirty (30) days written notice prior to the
effective date of the requirement to obtain increased coverage.
(E) In the event alcoholic beverages are to be served or consumed on any Premises covered by
this Lease, the Lessee shall additionally obtain or cause to be obtained alcoholic beverage
liability insurance in the amount of one million dollars ($1,000,000.00) covering the event or
time period when alcoholic beverages are to be served or consumed.
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(F) Lessee shall, prior to any addition or alteration to, in, on, or about the Premises, obtain prior
clearance, in writing, from the Risk Manager that the proposed addition or alteration will not
necessitate a change or modification in the existing insurance coverage maintained by Lessee.
This clearance is in addition to the prior consent required by Section 21(A), as contained
herein.
Section 20 Indemnity. In consideration of allowing Lessee to use the Premises, Lessee
("Indemnitor") covenants to fully indemnify, save and hold harmless the City, its officers,
agents, representatives, and employees (collectively, "Indemnitees") from and against any
and all liability, loss, damages, claims, demands, suits, and causes of action of any nature
whatsoever asserted against or recovered from City on account of injury or damage to person
including, without limitation on the foregoing, premises defects, workers' compensation and
death claims, or property loss or damage of any other kind whatsoever, to the extent any
injury, damage, or loss may be incident to, arise out of, be caused by, or be in any way
connected with, either proximately or remotely, wholly or in part: (1) Lessee's performance
pursuant to this Lease; (2) Lessee's use of the Premises and any and all activities associated
therewith pursuant to this Lease; (3) the violation by Lessee, its officers, employees, agents,
or representatives or by Indemnitees or any of them, of any law, rule, regulation, ordinance, or
government order of any kind pertaining, directly or indirectly, to this Lease; (4) the exercise
of rights under this Lease; or (5) an act or omission on the part of Lessee, its officers,
employees, agents, or representatives or of Indemnitees, or any of them, pertaining to this
Lease, regardless of whether the injury, damage, loss, violation, exercise of rights, act or
omission is caused or is claimed to be caused by the contributing or concurrent negligence of
Indemnitees, or any of them, but not if caused by the sole negligence of Indemnitees, or any of
them, unmixed with the fault of any other person or entity and including all expenses of
litigation, court costs, and attorneys' fees, which arise, or are claimed to arise, out of or in
connection with the asserted or recovered incident.
Lessee covenants and agrees that, if City is made a party to any litigation against Lessee or in
any litigation commenced by any party, other than Lessee relating to this Lease, Lessee shall,
upon receipt of reasonable notice regarding commencement of litigation, at its own expense,
investigate all claims and demands, attend to their settlement or other disposition, defend City
in all actions based thereon with legal counsel satisfactory to City, and pay all charges of
attorneys and all other costs and expenses of any kind whatsoever arising from any said
liability, injury, damage, loss, demand, claim or action.
Section 21 Alterations.
(A) Lessee shall not make any alterations, additions, or improvements to, in, on, or about said
Premises, without the prior written consent of the City. Lessee must also obtain clearance
from the Risk Manager as required by Section 19(F) above.
(B) All approved alterations, improvements, and additions made by the Lessee upon said
Premises, although at his own expense, shall, if not removed by Lessee at any termination or
cancellation hereof, become the property of the City in fee simple without any other action or
process of law. Lessee agrees to be contractually and financially responsible for repairing any
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and all damage caused by such removal. If items are installed in such a manner as to become
fixtures, such fixtures shall not be removed by Lessee upon termination and shall become the
property of the City.
Section 22 Signs.
(A) Lessee shall not exhibit, inscribe, paint, erect, or affix any signs, advertisements, notices, or
other lettering ("Signs") at, on, or about the Premises, or any part thereof, without the
Director's prior written approval.
(B) City may require Lessee to remove, repaint, or repair any Signs allowed. If Lessee does not
remove, repaint, or repair the Signs within ten (10) days of Director's written demand, City may
do or cause the work to be done, and Lessee will pay City's costs within thirty (30) days of
receipt of Director's invoice. If payment is not timely made, the City may terminate this Lease
upon ten (10) days written notice to Lessee. Alternatively, City may elect to terminate this
Lease after ten (10) days written notice to Lessee.
Section 23 Sublease and Assignment. Lessee understands and agrees that Lessee shall not
sublease the Premises or any part thereof without obtaining the prior written consent of the City.
Lessee shall not, in whole or in part, assign or transfer directly or indirectly this Lease unless prior
written approval has been obtained from the City.
Section 24 Default.
(A) The following constitute Events of Default under this Lease:
(i) default in the payment of rent or other payments hereunder;
(ii) intentional, knowing, or fraudulent failure to maintain strict and
accurate books of account;
(iii) failure to furnish an accurate statement of Gross Receipts to the City,
failure to furnish quarterly sales tax reports for all sales made on and
at the Premises, or failure to furnish the books of account for inspection;
(iv) failure to pay utilities before the due date;
(v) failure to perform scheduled maintenance;
(vi) abandonment of the Premises;
(vii) failure to maintain any insurance coverage's required herein;
(viii) failure to timely pay City's invoice for the removal, repainting,
or repair of any Signs at the Premises; and
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(ix) failure to keep, perform, and observe any other promises,
covenants and conditions contained in this Lease.
(B) Upon the occurrence of any Event of Default, the City may, at its option, in addition to any
other remedy or right given hereunder or by law:
(i) give notice to Lessee that this Lease terminates upon the date
specified in the notice, which date will be no earlier than five (5)
days after the giving of such notice; or
(ii) immediately or at any time after the occurrence of such Event of
Default and without notice or demand, enter upon the Premises,
or any part thereof in the name of the whole, and, upon the date
specified in a notice, if given, or in any notice pursuant to law, or
upon such entry, this Lease terminates.
Section 25 No debts. Lessee shall not incur any debts or obligations on the credit of the City during
the term of this Lease.
Section 26 Notice.
(A) All notices, demands, requests or replies provided for or permitted under this Lease by either
party must be in writing and must be delivered by one of the following methods: (I) by personal
delivery; (ii) by deposit with the United States Postal Service as certified or registered mail,
return receipt requested, postage prepaid; (iii) by prepaid telegram; (iv) by deposit with an
overnight express delivery service, for which service has been prepaid; or (v) by fax
transmission.
(B) Notice deposited with the United States Postal Service in the manner described above will be
deemed effective two (2) business days after deposit with the United States Postal Service.
Notice by telegram or overnight express delivery service will be deemed effective one (1)
business day after transmission to the telegraph company or overnight express carrier. Notice
by fax transmission will be deemed effective upon transmission with proof of delivery.
(C) All these communications must only be made to the following:
IF TO CITY:
IF TO LESSEE:
City of Corpus Christi
Park and Recreation Department
P. O. Box 9277
Corpus Christi, Texas 78469-9277
Attn: Director of Park and Recreation
Brian Carson dba Carson's Deli and Catering
5009 Saratoga Boulevard
Corpus Christi, Texas 78413
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(D) Either party may change the address to which notice is sent by using a method set out above.
Lessee shall notify the City of an address change within ten (10) days after the address is
changed.
Section 27 Nondiscrimination. Lessee covenants and agrees that it shall not discriminate nor
permit discrimination against any person or group of persons, with regard to employment and the
provision of services at, on, or in the Premises, on the grounds of race, religion, national origin,
marital status, sex, age, disability, or in any manner prohibited by the laws of the United States or the
State of Texas. The City hereby reserves the right to take such action as the United States may
direct to enforce this covenant.
Section 28 Modifications. No changes or modifications to this Lease may be made, nor any
provisions waived, unless the change or modification is made in writing and signed by persons
authorized to sign agreements on behalf of each party.
Section 29 Waiver.
(A) The failure of either party to complain of any act or omission on the part of the other party, no
matter how long the same may continue, shall not be deemed a waiver by said party of any of
its rights hereunder. No waiver of any covenant or condition or of the breach of any covenant
or condition of this Lease by either party at any time, express or implied, shall be taken to
constitute a waiver of any subsequent breach of the covenant or condition nor shall justify or
authorize the nonobservance on any other occasion of the same or any other covenant or
condition hereof. If any action by the Lessee requires the consent or approval of the City on
one occasion, any consent or approval given on said occasion shall not be deemed a consent
or approval of the same or any other action at any other occasion.
(B) Any waiver or indulgence of Lessee's default of any provision of this Lease shall not be
considered an estoppel against the City. It is expressly understood that, if at any time Lessee
is in default in any of its conditions or covenants hereunder, the failure on the part of the City to
prornptly avail itself of said rights and remedies which the City may have shall not be
considered a waiver on the part of the City, but City rnay at any time avail itself of said rights or
remedies or elect to terminate this Lease on account of said default. Any waiver by the parties
of a breach of any covenants, terms, obligations, or events of default shall not be construed to
be a waiver of any subsequent breach, nor shall the failure to require full compliance with this
Lease be construed as changing the terms of this Lease or estopping the parties from
enforcing the terms of this Lease.
Section 30 Force Majeure. No party to this Lease shall be liable for delays or failures in
performance due to any cause beyond their control including, without limitation, any delays or failures
in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier,
severe inclement weather, riots or interference by civil or military authorities. These delays or failures
to perform shall extend the period of performance until these exigencies have been removed. The
Lessee shall inform the City in writing of proof of such force majeure within three (3) business days or
otherwise waive this right as a defense.
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Section 31 Surrender. Lessee acknowledges and understands that the lease of the Premises to
Lessee is expressly conditioned on the understanding that the Premises must be surrendered, upon
the expiration, termination, or cancellation of this Lease, in as good a condition as received,
reasonable use and wear, acts of God, fire and flood damage or destruction where Lessee is without
fault, excepted.
Section 32 Enforcement Costs. In the event any legal action or proceeding is undertaken by the
City to repossess the Premises, collect the lease payment(s) due hereunder, collect for any damages
with regard to this Lease, to the Premises, or to in any way enforce the provisions of this Lease,
Lessee agrees to pay all court costs and expenses and the sum as a court of competent jurisdiction
may adjudge reasonable as attorneys' fees in said action or proceeding, or in the event of an appeal
as allowed by an appellate court, if a judgment is rendered in favor of the City.
Section 33 Publication Costs. Lessee shall pay for the cost of publishing the Lease description and
related ordinance, as required by the City Charter, in the legal section of the local newspaper.
Section 34 Interpretation. This Lease will be interpreted according to the Texas laws that govern
the interpretation of contracts. Venue lies in Nueces County, Texas, where this Lease was entered
into and will be performed.
Section 35 Survival of Terms. Termination or expiration of this Lease for any reason shall not
release either party from any liabilities or obligations set forth in this Lease that (a) the parties have
expressly agreed shall survive any such termination or expiration, or (b) remain to be performed or by
their nature would be intended to be applicable following any such termination or expiration.
Section 36 Construction of Ambiguities. The parties expressly agree that they have each
independently read and understood this Lease. Any ambiguities in this Lease shall not be construed
against the drafter.
Section 37 Captions. The captions utilized in this Lease are for convenience only and do not in any
way limit or amplify the terms or provisions hereof.
Section 38 Entirety Clause. This Lease and the incorporated and attached exhibits constitute the
entire agreement between the City and Lessee for the purpose granted. All other agreements,
promises, representations, and understandings, oral or otherwise, with reference to the subject matter
hereof, unless contained in this Lease are expressly revoked, as the parties intend to provide for a
complete understanding within the provisions of this Lease and its exhibits of the terms, conditions,
promises, and covenants relating to Lessee's operations and the Premises to be used in the
operations.
Section 39 Severability.
(A) If, for any reason, any section, paragraph, subdivision, clause, provision, phrase, or word of
this Lease or the application hereof to any person or circumstance is, to any extent, held
illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of
competent jurisdiction, then the remainder of this Lease, or the application of said term or
12
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provision to persons or circumstances other than those as to which it is held illegal, invalid, or
unenforceable, will not be affected thereby, for it is the definite intent of the parties to this
Lease that every section, paragraph, subdivision, clause, provision, phrase or word hereof be
given full force and effect for its purpose.
(B) To the extent that any clause or provision is held illegal, invalid, or unenforceable under
present or future law effective during the term of this Lease, then the remainder of this Lease is
not affected thereby, and in lieu of each such illegal, invalid, or unenforceable clause or
provision, a clause or provision, as similar in terms to such illegal, invalid, or unenforceable
clause or provision as may be possible and be legal, valid and enforceable, will be added to
this Lease automatically.
EXECUTED IN DUPLICATE, each of which shall be considered an original, on the
,2005.
day of
ATTEST:
CITY OF CORPUS CHRISTI
Armando Chapa
City Secretary
George Noe
City Manager
APPROVED AS TO LEGAL FORM this .?\ day of
~
,2005.
By: ~~
Lisa Aguilar
Assistant City Arney
for City Attorney
STATE OF TEXAS ~
S
COUNTY OF NUECES ~
This instrument was acknowledged before me on ,2005, by George Noe, or
his designee , City Manager of the City of Corpus Christi, a Texas
home rule municipal corporation, on behalf of said corporation.
Notary Public, State of Texas
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LESSEE: Bri~~n c.arson db Carson's Deli and Catering
- ' n
By: v~
Date: -:r 00 iZ-. ;z, r. J e D;r
,
STATE OF TEXAS S
S
COUNTY OF NUECES S
This instrument was acknowledged before me on 1 ^'" " 2 I .,J'
-
db, C,rnoo', Deli oed C,te'o, ~ ~ L
~ia Q ~,
e DOIlNA I DELEON Notary Public, State of Texas
~ NoIIry ..-
. .JlIII{. . STATE OF TEXAS
. MyComm.E>ip.08-11-200ll Mnq ~
Printed Name l
Commission expires: ~ II ( :zlX@
, 2005, by Brian Carson
14
15
INSURANCE REQUIREMENTS
I. LESSEE'S LIABILITY INSURANCE
A. Lessee must not commence work under this agreement until all insurance required has been obtained
and such insurance has been approved by the City. Lessee must not allow any subcontractor to
commence work until all similar insurance required of any subcontractor has been obtained.
B. Lessee must furnish to the City's Risk Manager, 2 copies of Certificates of Insurance, showing the
following minimum coverage by an insurance company(s) acceptable to the City's Risk Manager. The
City must be named as an additional insured on the General liability policy, and a blanket waiver of
subrogation is required on all applicable policies.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-Day Notice of cancellation, material change, non- Bodily Injury and Property Damage
renewal, or termination and 10 day written notice of Per occurrence aggregate
cancellation for non-payment of premium is required
on all certificates
Commercial General Liability including: $500,000 COMBINED SINGLE LIMIT
1. Commercial Form
2. Premises - Operations
3. Products/ Completed Operations Hazard
4. Contractual Liability
5. Broad Form Property Damage
6. Independent Contractors
7. Personal Injury
LIQUOR LIABILITY COVERAGE $1,000,000 COMBINED SINGLE LIMIT
If liquor being served or consumed on premises
Applicable when employs paid employees,
WORKERS' COMPENSATION WHICH COMPLIES WITH THE TEXAS
WORKERS' COMPENSATION ACT AND
PARAGRAPH II OF THIS EXHIBIT
EMPLOYERS' LIABILITY $500,000
C. In the event of accidents of any kind, Lessee must furnish the Risk Manager with copies of all reports of
any accidents within 10 days of the accident.
Merrriman Bobys House lease ins. req.
5-9-05 ep Risk Mgmt.
I. ADDITIONAL REOUIREMENTS
16
A.
Applicable when employing paid employees, Lessee must obtain workers' compensation coverage
through a licensed insurance company. The coverage must be written on a policy and endorsements
approved by the Texas Department of Insurance. The workers' compensation coverage provided must
be in an amount sufficient to assure that all workers' compensation obligations incurred by the Lessee
will be promptly met.
B.
Certificate of Insurance:
.
The City of Corpus Christi must be named as an additional insured on the General Liability
coverage and a blanket waiver of subrogation is required on all applicable policies.
.
If your insurance company uses the standard ACORD form, the cancellation clause (bottom right)
must be amended by adding the wording "changed or" between "be" and "canceled", and deleting
the words, "endeavor to", and deleting the wording after "left". In the alternative, a copy of a policy
endorsement with the required cancellation language is required.
· The name of the project must be listed under "Description of Operations"
· At a minimum, a 30-day written notice to the Risk Manager of cancellation, material change, non-
renewal or termination and a IO-day written notice of cancellation for non-payment of premium is
required.
C. If the Certificate of Insurance on its face does not show on its face the existence of the coverage
required by items l.B (I )-(7), an authorized representative of the insurance company must include a
letter specifically stating whether items I.B. (I )-(7) are included or excluded.
Corpus Christi, Tex'\S.s
I) xV- \
2':::2- day of \ttU.1,~ , 2005
TO THE MEMBERS F 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 two regular meetings: IlWe, 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
The above ordinance was passed by the following vote:
Mark Scott
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C~tef-
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Henry Garrett
Brent Chesney
Melody Cooper
Jerry Garcia
Bill Kelly
Rex A. Kinnison
John E. Marez
Jesse Noyola
02h3:2tt