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HomeMy WebLinkAboutC2008-541 - 12/16/2008 - ApprovedLEASE AGREEMENT BETWEEN LANDRY'S SEAFOOD AND STEAK HOUSE -CORPUS CHRISTI, INC. AND THE CITY OF CORPUS CHRISTI THE STATE OF TEXAS § COUNTY OF NUECES § KNOW ALL MEN BY THESE PRESENTS: This lease ("Lease") is entered into between the City of Corpus Christi ("City"), a Texas municipal home-rule corporation, acting through its duly authorized City Manager ("City Manager"), and Landry's Seafood and Steak House -Corpus Christi, Inc. ("Landry's"), a Texas corporation, whose principal office and place of business is in Houston, Harris County, Texas, acting through its duly authorized representative. The City, in consideration of Landry's faithful performance of the conditions and covenants contained in this Lease, leases to Landry's a dockside area in the Corpus Christi Marina ("Marina"), as follows: Section 1. Preamble Language. The preamble language included above this initial numerated section in incorporated into this Lease by reference and made a part of this Lease for all intents and purposes. Section 2. Premises. Landry's is granted use of sufficient berthing space on the north side of the Peoples Street T-Head, to accommodate a barge restaurant, and related site improvements, including the additional adjacent space designated "Boardwalk" on the attached Exhibit A (all areas collectively referred to as the "Premises"), which is incorporated in this Lease by reference. Section 3. Permitted Uses. (A) Landry's must use the Premises primarily as a restaurant, to include outside dining, and secondarily as a bar. (B) Landry's may use the bar, as a secondary use only, to sell and serve alcoholic beverages if Landry's has complied, and remains in compliance, with all State and local laws, rules, regulations, and ordinances. Additionally, the bar may be used by Landry's for the sale of souvenirs and other merchandise secondary to and as appropriate to complement food and drink service. (C) The business operation must be confined to the barge restaurant, Boardwalk, 7nrl r7cr4 ,.e.,.. ~••~thin the Premises. 2008-541 M2008-329 12/16/08 Landry's Seafood & Steakhouse (D) This Lease is not an exclusive right to operate a restaurant in the Marina area. Section 4. Term. The term of this Lease is on month-to-month basis effective on the date of execution by the City Manager and beginning February 1, 2009 and ending on March 30, 2009. Section 5. Lease Rate and Payments. (A) For the term of this Lease, Landry's must pay the City a base lease rate of $6,000 per month, or 2.75% of monthly "Gross Sales," whichever is greater. (B) "Gross Sales" means all sales of food, drink, souvenir items, and all merchandise of any kind, prepared, produced or sold on the Premises or sold on the Peoples Street T-Head, excluding credit card transaction fees and sales, consumption, and alcoholic beverage taxes. (C) Payments must be made to the order of the City of Corpus Christi and mailed to the City Collections Department, P. O. Box 9277, Corpus Christi, TX, 78469, or delivered to City Hall at 1201 Leopard Street, Corpus Christi, TX, 78401. Section 6. Lease Payment Abatement. (A) The monthly lease payment may be abated during the time Landry's ceases restaurant business operations: (1) in preparation for movement to a safe moorage in accordance with Landry's Hurricane Preparedness Plan ("Hurricane Plan"), a copy of which is attached as Exhibit C and incorporated in this Lease by reference; (2) whenever the barge is rendered substantially unusable because of damage resulting from fire, water, wind, or force majeure; or (3) in the event major repair, renovation, or construction prohibits access to and through the Peoples Street T-Head. (B) In the event that a condition in subsection (A) of this section occurs and Landry's desires to claim a lease payment abatement, Landry's must notify the the City's Marina Superintendent or the Marina Superintendent's designee ("Marina Superintendent") in writing within three (3) business days following the occurrence of a condition stated in subsection (A) of this section, providing the date, time, and reason for cessation of restaurant business operations and the expected date of resumption of restaurant business operations. (C) Landry's must resume its restaurant business operations as soon as practical after a condition that caused the cessation of restaurant business operations no longer exists. Landry's must provide the Marina Superintendent with written notice within 24 hours after resuming restaurant business operations. (D) The lease payment abatement amount will be a pro rata share of the minimum monthly lease payment due. Section 7. Monthly Financial Statements; Audit of Records. (A) Landry's must keep strict and accurate books of account and records of Gross Sales and of all receipts collected. (B) Landry's must furnish monthly statements of Gross Sales, certified by an authorized officer of Landry's, in accordance with generally accepted accounting principles and procedures and in a form approved by the City's Director of Finance. (C) Landry's books and records must be open for inspection by the City Manager at all reasonable times. (D) All underlying documentation for Landry's certified monthly statements, including, but not limited to, cash register and computer terminal tapes, must be preserved by Landry's for at least three (3) years. The City Manager may terminate this Lease for failure to preserve such records or provide them to the City upon the City Manager's request. (E) The City Manager may audit Landry's books and records at any time to verify Landry's Gross Sales for any period within three (3) years prior to an audit. (1) "Books and records" includes, but is not limited to, all documents related to the conduct of the business such as: general ledgers, accounts receivables and payables, sales journals, inventory records, daily and periodic summary re-ports, cash register and computer terminal tapes, bank deposit slips, bank statements, tax reports to State and Federal agencies, and discount and rebate records. (2) Any additional payments due the City, as may be determined by an audit, must be paid by Landry's to the City, with annual interest of 10% from the date the payment became due, within 30 days of such determination and notice to Landry's. (3) Audits will be conducted at the administrative offices of the City's Park & Recreation Department, 1201 Leopard Street, Corpus Christi, Nueces County, Texas, 78401, and Landry's must make its books and records available at such time as required by the City's Auditor. If first agreed to in writing by the City's Director of Park & Recreation or the Director of Park & Recreation's designee ("Director"), the audit can be conducted at another site, provided Landry's reimburses the City for the travel, food, and lodging expenses of City staff necessary to conduct the audit. (4) If the audit shows that Landry's has understated Gross Receipts by 3% or more, the entire expense of the audit must be paid by Landry's. Section 8. Delinquency and Default Regarding Lease Payments. (A) Landry's is "delinquent" if the City has not received Landry's 's monthly lease payment and certified financial statement on or before 5:00 p.m. on the 10th day of the month in which the payment and certified financial statement are due. If the 10th day on the month falls on a weekend or holiday, the payment and certified financial statement must be tendered on the first business day thereafter. (B) Landry's is "in default" if Landry's fails to pay the amount due or provide the certified financial statement within ten (10) business days after the City Manager has sent a written notice of delinquency requesting the payment, certified financial statement, or both. A default for failure to pay the amount due or provide the certified financial statement constitutes grounds to terminate this Lease. Section 9. Landry's Responsibilities. Landry's, as lessee, shall: (A) Pay for the installation, maintenance, and use of all of its utilities including, but not limited to, water, sewer, sanitation, electricity, natural gas, and telephone; (B) Comply with all Federal, State, and local laws, rules, regulations, and ordinances, as each may be amended, including, but not limited to, Chapter 12 of the City's Code of Ordinances and the Marina Rules and Regulations, and ensure that its employees, agents, and representatives comply as well; (C) Maintain the Premises and all improvements in a good and safe condition during the Lease term; (D) Maintain the barge restaurant, mooring lines, spuds, pilings, and anchors at all times in a satisfactory state of repair, as specified by the Marina Superintendent; (E) Perform grounds maintenance for the area north of the center of the head portion of the Peoples Street T-Head, as shown on the attached Exhibit B, which is incorporated in this Lease by reference, to include, without limitation, litter control of all grass and landscaped areas and the parking lots utilized by its restaurant customers, except for such times as the City leases such property to other third parties; (F) Raise the barge restaurant if it sinks, regardless of the cause of its sinking; (G) Remove the barge restaurant from the Marina in the event of extensive damage, destruction, sinking, or partial sinking, regardless of cause, or threat of hurricane, as set out in Exhibit C; (H) Ensure that no pollutant, effluent, liquid or solid waste material, bilgewater, litter, trash, or garbage issued from the Premises is allowed to collect in the waters of the Marina or in the vicinity of the barge restaurant or parking areas utilized by restaurant customers. Landry's must regularly inspect and police the vicinity of the Premises for such materials and promptly clean up and remove such materials in order to maintain the cleanliness and attractiveness of the Marina; (I) Ensure that the noise level issuing from the Premises is reasonable and not discernibly audible to a person of normal hearing sensitivity standing along the east curb lines of Shoreline Boulevard (northbound); (J) Regularly inspect and maintain fire fighting systems and equipment in the highest degree of readiness and regularly conduct training for employees in fire prevention and emergency procedures; (K) Pay all operating expenses incurred by Landry 's in connection with its restaurant business operations; (L) Pay all ad valorem taxes which may be assessed against the Premises, that are associated with Landry's use of the Premises, prior to their past due date; (M) Properly maintain and clean the grease traps, trash dumpsters, trash dumpster area and vessel bilges, in accordance with applicable local ordinances and State health regulations, at least once every month or more frequently as needed; and (N) Remove the barge restaurant from the Marina at termination or expiration of the lease. Section 10. Repairs and Maintenance to Barge. (A) Landry's may not make any major repairs to the barge restaurant while it is located within the Premises, the determination of what constitutes "major repairs" being within the sole and reasonable discretion of the Marina Superintendent. However, the Marina Superintendent may authorize reasonable minor repairs and maintenance within the Premises. (B) For all repairs, Landry's must provide the Marina Superintendent with a written description of the type of maintenance requested and the estimated time frame to start and complete the maintenance requested, at least one week prior to the requested start date. (C) Landry's agrees to provide Marina Superintendent with copy of records regarding maintenance (including regular maintenance) for the barge within one week of maintenance. Section 11. Improvements/Additions/Alterations. (A) Landry's may not make any improvements, additions, or alterations to the Premises, the Marina facilities, the exterior of the barge restaurant, or the Boardwalk without the prior written approval of the Director and the City Manager. Landry' s must also obtain clearance, in writing, from the City's Risk Manager as required by Section 26(D) of this Lease. (B) If approved, any improvements, additions, or alterations made by Landry's to the Premises must comply with all applicable City Codes. (C) Landry's acknowledges and agrees that all improvements, additions, and alterations that may be made to the Premises, including the Boardwalk area, during the term of this Lease become the property of the City upon the earlier termination or expiration of this Lease. Section 12. Restaurant Operations. Landry's shall carry out the restaurant operations in a businesslike manner at all times. The hours and days of operation during the term of this Lease must be comparable to those of other restaurants in the City that place emphasis upon lunch and evening meals. Section 13. Hurricane Preparedness. If the City or the surrounding area is threatened by a hurricane or other emergency weather situation, Landry's shall comply with all orders of the Marina Superintendent pursuant to the Hurricane Preparedness Plan, as set out in Exhibit C. As part of hurricane preparedness, Landry's agrees to have contract in effect with Port of Corpus Christi, and with tugboat, to move and store the barge when directed by Marina Superintendent for hurricane preparedness. As part of hurricane preparedness, Landry's agrees to obtain marine condition survey before Hurricane Season 2009, and every two years thereafter. The survey will be provided to City Marina Superintendent. It will contain written plan regarding how to move and secure the barge in times of severe weather. Additionally, Landry's agrees to replace the mooring lines every two years of this agreement. Section 14. Sanitation. Landry's shall store garbage and trash aboard the barge restaurant or upon the Peoples Street T-Head at a location designated by the Marina Superintendent. All garbage and trash stored in designated areas upon the T-Head must be stored in dumpster-type containers. Such containers must be housed inside small building, screened or appropriately landscaped, and all at Landry's expense and as approved by the Marina Superintendent. The garbage container area must be maintained by Landry's. Landry's shall obtain garbage pickup no less than five (5) days per week. Landry's may not store anything outside either the dumpster itself or the dumpster housing. Landry's will construct concrete pad beneath dumpster upon request of Marina Superintendent to reduce damaged to asphalt caused by dumpster service vehicles. Section 15. Parking. Landry's restaurant customers may park on the stem and head portion of the Peoples Street T-Head, provided, however, that such parking areas may not be utilized by Landry's for the exclusive use of Landry's and its employees and customers. Parking on the Peoples Street T-head is subject to the City street closure process. For example, during City approved street closure of Peoples Street T-Head, Landry's (and its employees and customers) will not have access to use of parking areas on the Peoples Street T-Head. Section 15.1 Special Events. Landry's acknowledges that City may authorize special events on the Peoples Street T-Head, such as the Texas International Yacht Show, which may impact vehicular access to the Premises. During days of City approved special events at Peoples Street T-Head which include street closures which impacts vehicular access to the Premises, Landry's vehicular access will be restricted to deliveries made at least one hour prior to opening of special event for the day, deliveries made after the special event has closed for the day, and also shuttle service. During days of special events or street closures at Peoples Street T-head, Landry's may utilize a shuttle service to transport patrons and employees to and from the Premises. Section 16. Sanitary Sewer. (A) Landry's shall operate its sanitary sewer facilities in accordance with the City Code of Ordinances, Section 13-201, as amended, and City Code of Ordinances, Chapter 55, Article XI, Commercial and Industrial Waste Disposal and Pretreatment, as amended. (B) The City warrants sewer service from the lift station only so long as electrical service to the station is not disrupted by storm, accident or other hazards, or catastrophe. Standby power to operate the lift station is not available at the beginning of this Lease nor is it planned by the City. Section 17. Inspection. Any officer or authorized employee of the City may enter upon the Premises, including the barge restaurant, at all reasonable times and without notice, to determine whether Landry's is providing maintenance required by this Lease, to inspect the restaurant operations, to enforce this Lease, for purposes of any fire or police action, or for any other purpose incidental to the City's retained rights of and in the Premises. Section 18. Signs and Lighting. (A) Landry's may 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 prior written approval of the City Manager. (B) The City may require Landry's to replace, repaint, or repair any Signs allowed. If Landry's does not remove, repaint, or repair the Signs within 15 business days of the Director's written demand, the City may do or cause the work to be done, and Landry's shall pay the City's costs within 30 days of receipt of Director's invoice. Failure to pay the amount due within 30 days from receipt of an invoice constitutes grounds to terminate this Lease. (C) Landry's may not erect or affix any new or modified lighting fixtures ("Lighting") at, on, or about the Premises, or any part thereof, without the prior written approval of the City Manager. (D) If approved, the new or altered Signs and Lighting must comply with the City's Code of Ordinances and the City's zoning ordinance, as each may be amended. Section 19. Assignment or Sublease. (A) Landry's may not, without the prior written consent of the City's City Council ("City Council"), such consent not to be unreasonably withheld, assign this Lease or sub- lease any portion of the Premises. Any attempted assignment or sublease, without the prior written consent of the City Council may, in the City Manager's sole discretion, render this Lease null and void. (B) In the event of the City Council's consent to an assignment or sublease of this Lease, each provision, term, covenant, obligation, and condition required to be per- formed by Landry's must be binding upon any assignee or sublessee and is partial consideration for the City Council's consent to the assignment or sublease. Any failure of the assignee or sublessee to strictly comply with each provision, term, covenant, obligation, and condition stated in this Lease may, in the City's Manager's sole discretion, render this Lease null and void. 9 Section 20. Non-discrimination. Landry's 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, gender, 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. Violation by Landry's of this covenant constitutes grounds for the City to immediately terminate this Lease. Section 21. Relationship of Parties. This Lease establishes alandlord/tenant relationship, and none other, and this Lease must be construed conclusively in favor of that relationship. In performing this Lease, both the City and Landry's 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 may not be, nor be construed to be, the employees or agents of the other party for any purpose whatsoever. Landry's shall employ sufficient employees to operate the restaurant business and such employees must be solely in the employ of Landry's. Section 22. Termination and Damages Prior To Expiration. If Landry's terminates this Lease prior to expiration, Landry's must pay the City, within 30 days of termination, liquidated damages in the amount of $34,500 to offset income the City will lose due to Landry's early termination of this Lease. The liquidated damages paid by Landry's will provide revenue to the City while the City attempts to find a new restaurant operator or other revenue source. Section 23. Termination upon Default. The City may terminate this Lease if Landry's fails to comply with any provision, term, covenant, obligation, or condition of this Lease and fails or refuses to cure the default within a reasonable time after receiving written notice of the default. Notwithstanding the immediately preceding language, default of Section 20 of this Lease will subject this Lease to immediate termination. Section 24. Removal of Barge. Landry's must remove the barge restaurant from the Marina no later than March 30, 2009 at Landry's cost and without damage to City property. No extensions will be permitted. Section 25. Indemnification. (A) To the extent allowed by Texas law and in consideration of allowing Landry's to lease the Premises, Landry's ("Indemnitor") covenants to fully indemnify, save, and hold harmless the City, its officers, agents, representatives, and employees (collectively, 10 "Indemnitees") from and against any and all claims, demands, actions, damages, losses, costs, liabilities, expenses, and judgments asserted against or recovered from the City on account of injury or damage to persons or property (including, without limi tation on the foregoing, premises defects, workers' compensation, and death claims), to the extent any injury, damage, or loss maybe incident to, arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly or in part: (1) Landrys' performance pursuant to this Lease; (2) Landrys' use of the Premises and any and all activities associated with the Premises pursuant to this Lease; (3) the violation by Landrys, its officers, employees, agents, or representatives or by Indemnitees 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, omission, or criminal violation on the part of Landry 's, its officers, employees, agents, representatives, contractors, patrons, guests, licensees, or invitees entering upon the Premises or Boardwalk area with or without the express or implied invitation of Landrys, or of Indemnitees, pertaining to this Lease, regardless of whether the injury, damage, loss, violation, exercise of rights, act, omission, or criminal violation is caused or is claimed to be caused by the sole, contributing, or concurrent negligence of Indemnitees, but not if such damage or injury results from the gross negligence or willful misconduct of the Indemnitees. (B) Landry's covenants and agrees that, if the City is made a party to any litigation against Landry's or in any litigation commenced by any party, other than Landry's relating to this Lease, Landry's shall, upon receipt of reasonable notice regarding commencement of litigation and at its own expense, investigate all claims and demands, attend to their settlement or other disposition, defend the City in all actions based thereon with legal counsel satisfactory to the City Attorney, and pay all charges of attorneys and all other costs and expenses of any kind whatsoever arising from any said claims, demands, actions, damages, losses, costs, liabilities, expenses, or judgments. 11 (C) The provisions of this section survive the earlier termination or expiration of this Lease. Section 26. Insurance. (A) Landry's must provide insurance in the amounts and types of coverages required by the City's Risk Manager or the Risk Manager's designee ("Risk Manager") as delineated in Exhibit D, which is attached to this Lease and incorporated in this Lease by reference. Landry's must provide the City's Director of Park and Recreation and the Risk Manager with a Certificate of Insurance, stating the levels and types of coverages, at least 30 days prior to the annual anniversary date of the effective date of this Lease. (B) The language on the Certificate of Insurance must provide that the City's Director of Park and Recreation and the Risk Manager receive at least 30 days advance written notice, by certified mail, of any cancellation, non-renewal, or material change in the insurance policy required in Exhibit D. (C) The Risk Manager retains the right to annually review the limits and types of insurance required by this Lease, to require increased coverage limits and types, if necessary in the interest of public health, safety, or welfare, or to adequately insure the Premises, and to decrease coverage, if so warranted. In the event of any necessary increase, Landry's will receive at least 30 days written notice of the revised re-insurance requirements. Landry's shall procure the revised insurance limits and types within 30 days of receipt of written notice of the revised insurance requirements and provide written proof of insurance to the City's Director of Park and Recreation and the Risk Manager. (D) Landry's shall, prior to the construction of any improvement, addition, or alteration to, in, on, or about the Premises, obtain prior clearance, in writing, from the Risk Manager that the proposed improvement, addition, or alteration will not necessitate a change or modification in the existing insurance coverage maintained by Landry's. This clearance is in addition to the prior consent required by Section 11(A) of this Lease. In the event that the Risk Manager determines that the improvement, addition, or alteration necessitates increased insurance coverage, Landry's shall procure such increased insurance coverage within the time specified by the Risk Manager. Section 27. Taxes. (A) Landry's shall pay all taxes, license and permit fees, and other fees required to operate the Premises. Landry's shall also pay all taxes that Landry's use of the Premises causes to be assessed against the Premises, and any Fixed Asset and 12 Personal Property taxes appurtenant to the Premises. Landry's shall pay all taxes prior to the due date. (B) Further, Landry's covenants to pay payroll taxes, Medicare taxes, FICA taxes, unemployment taxes, and all other related taxes according to the United States Internal Revenue Service's Circular E, entitled "Employer Tax Guide", Publication 15, as it may be amended, prior to their respective due dates. Landry's shall provide proof of payment of these taxes within 30 days after payment is due or the Marina Superintendent requests proof of payment. Failure to pay or provide proof of payment is grounds to terminate this Lease. Section 28. Notice. (A) All notices, demands, requests, or replies provided for or permitted by this Lease must be in writing and may be delivered by any one of the following methods: (1) by personal delivery; (2) by deposit with the United States Postal Service as certified mail, return receipt requested, postage prepaid, to the addresses stated below; (3) by prepaid telegram; (4) by deposit with an overnight express delivery service; or (5) 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 such communications must be made only to the following: IF TO THE CITY City of Corpus Christi Attn: Director of Park & Recreation P.O. Box 9277 Corpus Christi, TX 78469-9277 (361) 880-3460 Office (361)880-3864 Fax IF TO LANDRY'S: Landry's Restaurants, Inc. Attn: Steven L. Scheinthal 1510 West Loop South Houston, TX 77027 (713) 386-7365 Office (713)386-7654 Fax (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 or fax number change within ten (10) days after the address or number is changed. Section 29. No debts. Lessee shall not incur any debts or obligations on the credit of the City during the term of this Lease and including during any Holdover Period that may occur. 13 Section 30. Modifications. This Lease may be modified by the parties if the parties enter into a separate development agreement for the City's Marina area during the term of this Lease. No other changes or modifications to this Lease may be made nor any provision waived unless made in writing and signed by persons duly authorized to sign agreements on behalf of each party. Section 31. Interpretation; Venue. This Lease is to be interpreted according to the Texas laws which govern the interpretation of contracts. Venue lies in Nueces County, Texas, where this Lease was entered into and will be performed. Section 32. Captions. The headings contained in this Lease are for convenience and reference only and are not intended to define or limit the scope of any provision. Section 33. Publication. Landry's agrees to pay the cost of newspaper publication of this Lease and related ordinance, as required by the City Charter, in the legal section of the local newspaper. Section 34. 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, will not be deemed a waiver by said party of any of its rights under this Lease. The 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, may not be taken to constitute a waiver of any subsequent breach of the covenant or condition nor justify or authorize the nonobservance on any other occasion of the same or any other covenant or condition of this Lease. If any action by Landry's 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 Landry'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 Landry 's is in default in any of its conditions or covenants of this Lease, the failure on the part of the City to promptly 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 the City may 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. 19 Section 35. Force Majeure. No party to this Lease is liable for delays or failures in pertormance 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, or riots or interference by civil or military authorities. Such delays or failures to perform extend the period of performance until these exigencies have been removed. Landry's 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. Section 36. Surrender. Landry's acknowledges and understands that the City's agreement to lease the Premises to Landry's is expressly conditioned on the understanding that the Premises, including, but not limited to, the Boardwalk area, 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 Landry's is without fault, excepted. Section 37. Enforcement Costs. In the event any legal action or proceeding is undertaken by the City to repossess the Premises, collect the rent payment(s) due pursuant to this Lease, collect for any damages to the Premises, or to, in any other way, enforce the provisions of this Lease, Landry's agrees to pay all court costs and expenses and such 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 38. Survival of Terms. Termination or expiration of this Lease for any reason does not release either party from any liabilities or obligations set forth in this Lease that (1) the parties have expressly agreed survive any such termination or expiration, including, but not limited to, Section 25; (b) remain to be pertormed; or (c) by their nature would be intended to be applicable following any such termination or expiration. Section 39. Acknowledgment and Construction of Ambiguities. The parties expressly acknowledge that they have each independently read and understood this Lease. By Landry's execution of this Lease, Landry's agrees to be bound by the terms, covenants, and conditions contained in this Lease. Furthermore, Landry's acknowledges and understands that this Lease is not binding on the City until properly authorized by the City's City Council and executed by the City Manager. By agreement of the parties, any ambiguities in this Lease are not to be construed against the drafter. Section 40. Severability. (A) If, for any reason, any word, phrase, paragraph, provision, or section of this Lease or the application of such language to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law effective during the term of this Lease or by a final judgment of a court of competent jurisdiction, then the remainder of this Lease, or the application of said 15 language to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected hereby, for it is the definite intent of the parties to this Lease that every word, phrase, paragraph, provision, or section of this Lease be given full force and effect for its purpose. (B) To the extent that any word, phrase, paragraph, provision, or section of this Lease is held illegal, invalid, or unenforceable under present or future law effective during the term of this Lease or by a final judgment of a court of competent jurisdiction and in lieu of each such illegal, invalid, or unenforceable language, a word, phrase, paragraph, provision, or section, as similar in terms to such illegal, invalid, or unenforceable language as may be possible and be legal, valid, and enforceable, will be added to this Lease automatically. Section 41. Entire Agreement. This Lease document and the incorporated and attached exhibits constitute the entire agreement between the City and Landry's 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 it is the intention of the parties to provide for a complete understanding within the provisions of this Lease and its exhibits of the terms, conditions, promises, and covenants relating to Landry's operations and the Premises to be used in the operations. EXECUTED IN D P KATE, each of which shall be considered an original, on this the ~~`~L day of , 2009. ATTEST: Armando Chapa City Secretary CITY OF CORPUS CHRISTI ~Cn~el R. Escobar City Manager APPROVED AS TO LEGAL FORM Assistant Attorney for the City Attorney ~'~ ~ ~ ~ , 2009. ~.r~ ~ r ~„+-- AUTHUHI2ED er ccunca __~..~~.~.~D~ ...~-.-............~...tw. SECRETARVf'J}~• 16 LANDRY'S SEAFOOD AND STEAKHOUSE -CORPUS CHRISTI, INC. sy: Steven L. Scheinthal, Vice President Date: ~i~ru~ /3, aoo9 STATE OF TEXAS § COUNTY OF HARRIS § This instrument was acknowledged before me on the day of ~~6~K~-~y , 2009, by Steven L. Scheinthal, Vice President of Landry's Seafood and Steakhouse-Corpus Christi, Inc., a Texas corporation, on behalf of the corporation. ~Ld.C.J~• ~~y Notary Public, State of Texas Printed Name Commission expires: ~~u- ~~~ IISA J BURGESS Notary Publlc, State of Texas } My Commission Expires ~~fi September Ol, 2011 17 EXHIBIT A (PREMISES- TO BE INSERTEDI J'-19-2002 16:09 FROM: Exhibit A zz°a F- m ~? i;•, « I a 70:917139615027 \ I.. V 0 o Fe ° 0 ro 0 oe -0 e ~ 1 ~ `~. ~ y -_ •4~~ , l ti` ~~y ~~ VV~. „~ e u r z a 4 F- y W a P.012~024 LEASE AREP. BOARDWALK _ .. ~ 18 EXHIBIT B -GROUNDS MAINTENANCE 3EP-19-2002 16:09 FROM: Exhibit E 42 .. ~~ m y ~ ~. r, ~~ P.013'024 's • o 0 o ° 0 i s ~ ~ s O ti_ ,~,~ ~~~~~~4y ~t ~' ~+~.4. ~_ 1 i -AREA OF GROUNDS MAINTENANCE RESPONSIBILITY 70:91713%15027 ..,y... \ :'•Z \J 19 EXHIBIT C HURRICANE PREPAREDNESS LANDRY'S SEAFOOD AND STEAK HOUSE -CORPUS CHRISTI 2009 HURRICANE/EMERGENCY ACTION PLAN This Hurricane/Emergency Action Plan (hereafter Plan) for Landry's Seafood and Steakhouse - Corpus Christi (Landry's) property and facilities has been developed with the coordination and approval of the Emergency Management Office, Parks & Recreation and Police Departments of the City of Corpus Christi. It is current for the 2008 hurricane season and thereafter until replaced, rescinded or amended. This Plan will be reviewed by the Marina Superintendent and Landry's General Manager on an annual basis prior to June 1st and any updates, con•ections and/or revisions will be forwarded to the Emergency Management Office by that date. LANDRY'S CONTACT LIST General Manager: Contact Name and Contact Information: CORPUS CHRISTI MARINA KEY PERSONNEL -Office: 826-3980 Peter M. Davidson, Marina Superintendent -Mobile: 537-1266; Radio #898 Rene Garza, Marina Maintenance Technician -Mobile: 215-7690; Radio #897 GOVERNMENT OFFICES Police Department .................. 886-2600 National Weather Service Fire Department ..................... 880-3900 Recorded Forecast ......... 289-1861 Emergency Operating Center ...... 826-1100 Office ........................ 289-0959 Emergency Management Office ... 826-1100 Parks & Recreation Office .. 880-3461 GENERAL PROVISIONS The order to implement the Plan may be issued by the Mayor, City Manager, Emergency Management Coordinator, Director of the Parks and Recreation or Marina Superintendent. 2. It shall be the sole responsibility of Landry's owners/operators to remove the barge, decks, trailer and all equipment, inventory, furniture, materials and supplies from the premises and to secure the facility. 3. It shall be the sole responsibility of Landry's to insure no pollutants enter the waters of the Marina from any operation owned/operated by Landry's i.e., grease traps, garbage, materials, etc. 4. All owners/operators, managers, employees will be required to evacuate the Marina Complex when conditions threaten human safety as determined by the Police Chief or Marina Superintendent. The Marina Staff will secure the Marina Complex and insure all persons are notified of the danger. The Marina Office has issued Emergency Passes to key employees of Landry's. Access to the Marina Complex will be restricted to persons presenting evidence of tenancy issued by the Corpus Christi Municipal Marina (i.e. a copy of the lease document or a Marina Emergency Pass). INCREASED READINESS ACTIONS FOR VARIOUS CONDITIONS This Plan is framed around four "conditions" which represent varying degrees of threatened emergencies and is based on the action to be taken as these conditions are known to develop through information received from the National Weather Service or any other sources. These conditions are as follows: CONDITION NUMBER 4 (GREENI -Beginning of Disaster Vulnerability Season -This condition will be used by emergency services personnel to refer to a situation which causes a higher degree of disaster possibility than is normally present. This condition will automatically go into effect upon such occurrences as the beginning of the Hurricane Season (June 1st each year, remaining in effect through November 30th each year); or other general conditions; such as fire threat, due to severe drought. CITY ACTION: The City will initiate general increased readiness activities, submit all updated Plans and utilize the media and other sources to recommend various protective actions to the public. LANDRY'S ACTION: Landry's General Manager will review the Plan and provide updated information for the Plan to the Marina Superintendent no later than June 1st. Landry's will prepare a contingency plan for (1) removing barge, decks and trailer from the premises; (2) disconnecting power and utility services from barge; (3) having grease traps vacuumed; (4) removing objects from outside the restaurant; and (4) otherwise securing the premises. CONDITION NUMBER 3 (YELLOW) -Situations Exist that Could Develop Into Hazardous Condition -This condition will be declared by the City Manager or Emergency Management Coordinator to identify a situation which presents a greater potential threat than "CONDITION 4" but no immediate threat to life or property. This condition might be generated by such events as a hurricane watch, tornado watch, severe thunderstorm watch, or presence of hazardous material in transit through the city by rail, truck, or other means. One such situation when Condition 3 will be declared is when the course of a hurricane has been established and the National Weather Service predicts a likely landfall within thirty-six hours and/or within one hundred miles of the City of Corpus Christi. Landry's -20- 03/07/08 CITY ACTION: The Marina Superintendent or his designee will: advise Landry's of any changes in Condition as advisories or declarations are received. advise Landry's IF and WHEN information is received on utility shut offs. CP&L secures their service when they determine it is in jeopardy without notice to the Marina. The Marina may shut off power if high waters make conditions dangerous. initiate/continue removal of watercraft from the Marina Complex until it is determined the operation is unsafe due to weather/road/equipment conditions. Marina rescue boats will be hauled out prior to cessation of haul out operations. relocate essential City records, tools, equipment and supplies to a safe location. ensure all loose items in Marina are secured. LANDRY'S ACTION: - cease all normal operations of the restaurant and begin preparations for removing the barge to a predesignated location and otherwise securing the premises. - begin removing all refrigerated foods from the premises. - have all grease traps vacuumed. - begin moving inside or removing all equipment, decks, trailers, dumpsters, building materials, vending machines, potted plants, street furniture or other objects owned or placed on the property by Landry's which are stored on the premises. CONDITION NUMBER 2 (ORANGE) -Situations Exist That Have Definite Characteristic of Developing Into A Hazardous Condition -This condition will be declared by the City Manager or Emergency Management Coordinator to identify a hazardous situation which has a significant potential and probability of causing loss of life and/or damage to property. CONDITION 2 will usually require some degree of warning the public of a potential disaster. This condition might be generated by such events as a hurricane warning, tornado warning, severe thunderstorm warning, or any other notification of the existence of a direct threat such as a toxic material spill, major fire, growing civil disturbance, etc. One such situation when this condition will be declared is when the National Weather Service indicates the possibility of a hurricane landfall within twenty-four hours or close enough to cause damaging winds or rising tides in the City of Corpus Christi. CITY ACTION: complete any remaining hurricane preparations and begin evacuating all persons from the Marina Complex. Landry's -21- 03/07/08 LANDRY'S ACTION: - complete any remaining hurricane preparations and evacuate all employees from the Marina Complex. CONDITION NUMBER 1 (RED) -Hazardous Conditions Are Imminent -This condition will be used to signify occurrence of a major emergency IS imminent. Events such as a hurricane strike, landfall predicted in 12 hours or less, tornado strike, large explosion, widespread civil disturbance, damaging tides, or other similar events will constitute a "Condition One" declaration. CITY ACTION: - ensure that all hurricane preparations throughout the Marina Complex have been completed and all persons have evacuated the Marina Complex. LANDRY'S ACTION: Landry's -22- 03/07/08 Landry's will have completed all preparations prior to this Condition and are required to evacuate all Landry's employees from the Marina Complex. HURRICANE PASSED: Marina staff will report to duty, as directed by the City's Bad Weather Policy, for damage assessment and appraisal, facility clean up and repair, launching operations, security, etc. Access to the Marina Complex will be restricted to persons presenting evidence of tenancy issued by the Corpus Christi Municipal Marina (i.e. a copy of the lease document or a Marina Emergency Pass). APPROVED on the dates written. Landry's Seafood and Steakhouse -Corpus Christi By: Date: City of Corpus Christi, Parks & Recreation Department By: Date: City of Corpus Christi, Police Department By: Date: City of Corpus Christi, Emergency Management Office By: Date: Landry's -23- 03/07/08 EXHIBIT D 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 or designee, 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-written day notice of cancellation, material Bodily Injury and Property Damage Chan e, non-renewal is re aired on all certificates Per occurrence a re ate Commercial General Liability including: $1,000,000 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. PersonalIn'u Liquor Liability Coverage $1,000,000 Combined Single Limit Vehicle Liability -owned, non-owned or rented $1,000,000 Combined single Limit Which Complies with the Texas Workers' Worker's Compensation Compensation Act and Section II of this Exhibit $500,000/ $500,000 / $500,000 Em to ers' Liabili 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. II. ADDITIONAL REQUIREMENTS A. Lessee must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written on a policy and endorsements approved by the Landry's -24- 03/07/08 Texas Department of Insurance. The coverage provided must be in amounts sufficient to assure that all workers' compensation obligations incurred will be promptly met. B. Lessee's financial integrity is of interest to the City; therefore, subject to Lessee's right to maintain reasonable deductibles in such amounts as are approved by the City, Lessee shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Lessee's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of no less than A- (VII). C. The City shall be entitled, upon request and without expense, to receive copies of the policies, declarations page and all endorsements thereto as they apply to the limits required by the City, and may require the deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies). Lessee shall be required to comply with any such requests and shall submit a copy of the replacement certificate of insurance to City at the address provided below within 10 days of the requested change. Lessee shall pay any costs incurred resulting from said changes. All notices under this Article shall be given to City at the following address: City of Corpus Christi Attn: Risk Management P.O. Box 9277 Corpus Christi, TX 78469-9277 (361) 826-4555- Fax # D. Lessee agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: • Name the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf of, the named insured performed under contract with the City, with the exception of the workers' compensation and professional liability polices; • Provide for an endorsement that the "other insurance" clause shall not apply to the City of Corpus Christi where the City is an additional insured shown on the policy; • Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of the City; and Landry's -25- 03/07/08 • Provide thirty (30) calendar days advance written notice directly to City of any suspension, cancellation, non-renewal or material change in coverage, and not less than ten (10) calendar days advance written notice for nonpayment of premium. E. Within five (5) calendar days of a suspension, cancellation, or non-renewal of coverage, Lessee shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Lessee's performance should there be a lapse in coverage at any time during this contract. Failure to provide and to maintain the required insurance shall constitute a material breach of this contract. F. In addition to any other remedies the City may have upon Lessee's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Lessee to stop work hereunder, and/or withhold any payment(s) which become due to Lessee hereunder until Lessee demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which Lessee may be held responsible for payments of damages to persons or property resulting from Lessee's or its subcontractors' performance of the work covered under this agreement. H. It is agreed that Lessee's insurance shall be deemed primary and non-contributory with respect to any insurance or self insurance carried by the City of Corpus Christi for liability arising out of operations under this contract. I. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this contract. 2008 Landry's lease agreement ins. req. 7-14-OS ep Risk Mgm[. Landry's -26- 03/07/08