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