LEASE AGREEMENT (2)
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this ~?----tlJ day of
~ 2000, by and between the CITY OF CLEARWATER, FLORIDA, a
municipal corporation, Post Office Box 4748, Clearwater, Florida 33758, hereinafter
referred to as "Lessor" and CLEARWATER BEACH SEAFOOD, INC., a Florida
corporation, d/b/a Crabby Bill's Clearwater Beach Restaurant, 37 Causeway Boulevard,
Clearwater, Florida 33767, hereinafter referred to as "Lessee":
WITNESSETH:
WHEREAS, Lessor is the owner of the fee simple title to the area described in
Exhibit A and hereinafter referred to as the "Premises"; and
WHEREAS, Lessor is willing to lease to Lessee the Premises "as is", for a full
service restaurant under the terms and conditions in this Lease Agreement;
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. The term of this agreement begins on the date of execution and
terminates April 30, 2009. As referred to in this agreement, an "agreement year"
commences on the 1st day of May of each year and terminates on the 30th day of April
of the following year during the term of this agreement.
2. The Lessor may cancel this agreement at any time by giving fifteen (15)
days prior written notice to the Lessee, or any of its agents or its attorney, when in the
opinion of the Lessor inferior service is being offered or the terms of the minimum
financial agreement are not being met or for any other good and valid reason that in the
opinion of the Lessor might detract from Clearwater and is not in the best interest of the
public. Such written notice shall state in particular any and all complaints and Lessee
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shall have fifteen (15) days within which to reasonably correct such complaints to the
satisfaction of the City Manager.
3. Lessee agrees to make all necessary structural improvements to the
Premises within one year of the date of this agreement and agrees to maintain same,
Lessee agrees that such improvements shall not exceed One Hundred Thousand and
no/100 Dollars ($100,000.00) dollars and shall be completed by a licensed contractor
and shall comply with all building codes and ordinances. Any improvements above One
Hundred Thousand and no/100 Dollars ($100,000.00) must be authorized by the City.
Lessor, in addition to any other right of termination set forth in this
agreement, may terminate this Lease for any municipal need as determined by the City
Commission on sixty (60) days written notice. If Lessor elects to terminate this
agreement, then Lessee may be reimbursed for those structural improvements
authorized by the City, subject to the following conditions:
a. Lessee must submit paid written reports of all improvements within
thirty (30) days of completion of said improvements. Lessor shall have the right to
inspect and approve all improvements.
b. Lessor will reimburse Lessee on a pro-rata basis for such
authorized improvements. The percentage of reimbursement declines on a pro-rata
basis during each agreement year. The percentage listed below is the amount due to
the Lessee for structural improvements authorized and approved by the City and is
limited to the amounts stated in this Lease Agreement unless otherwise modified with
the consent of both parties.
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Years
Reimbursement of Lessee Improvements
Commencement - April 30, 2001
May 1, 2001 - April 30, 2002
May 1, 2002 - April 30, 2003
May 1, 2003 - April 30, 2004
May 1, 2004 - April 30, 2009
80% of Lessee Improvements
60% of Lessee Improvements
40% of Lessee Improvements
20% of Lessee Improvements
0% of Lessee Improvements
c. Any claim for reimbursement must be approved by the City. Upon
reimbursement, Lessee shall release all claims against Lessor arising out of this
agreement, and Lessee shall have no further claim on said Premises.
4. The Premises shall be used only for the purpose of conducting the
business of a full service restaurant with full liquor bar and service.
5. The Lessee hereby covenants and agrees to pay:
a. A guaranteed minimum rental in equal monthly payments, which
will be due and payable on the first day of each month, an amount in accordance with
the following schedule:
Years of Lease
Monthlv payments
Commencement - April 30, 2001
$7,000
May 1, 2001 - April 30, 2009
$7,000 plus annual CPI increase
The minimum rental shall increase on an annual basis beginning on May 1, 2001,
based on the U.S. Department of Commerce "National Consumer Price Index" for
Urban Consumers, U.S. City Average, (C.P.I.-U), which shall be determined by dividing
the C.P.I.-U. indicator prior to the adjustment date, by the C.P.I.-U. indicator published
one (1) year prior to the adjustment date and multiply the resultant number by the
minimum rental of the most recent lease period. In no event will the minimum rental
decrease from the most recent lease period.
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Lessee shall notify Lessor in writing of such transfer and shall provide to Lessor the
name, address, financial statement and business experience resume for the immediate
preceding five (5) years of the proposed assignee. This information shall be in writing
and shall be received by Lessor no less than thirty (30) days prior to the effective date
of such transfer. Lessor at its sole discretion shall have the option of accepting the
proposed assignee and can charge a reasonable fee to Lessee for processing such
request. Lessee can request a transfer under this provision no more than once in an
agreement year unless specifically consented to in writing by Lessor.
7. Lessee agrees that it will promptly pay all ad valorem real property taxes
and personal property taxes that may be assessed against the Premises during the
term of this agreement. Lessee further agrees that it will pay any state sales tax due on
the rental payment made by the Lessee to the Lessor and that it will pay all other taxes,
including but not limited to, occupational license, beverage license, and permits relating
to the operation of the business conducted on the Premises, which are required by law.
8. Lessee hereby covenants and agrees to pay all bills for electrical current,
gas, water, heat, refuse collection, and other services to the Premises when due.
9. Lessee will use biodegradable materials whenever feasible.
10. Lessee will provide all equipment and merchandise necessary for the
operation of the restaurant. In addition, the Lessee will pay all normal day-to-day
repair, maintenance, and replacement costs, being certain that any material used will
be equal to or better than that originally provided.
11. Lessee will be responsible for picking up and disposing of all trash,
garbage, and other debris upon or about the Premises or surrounding premises.
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12. Lessee agrees to indemnify and hold Lessor and its employees harmless
from and against any and all claims, demands, causes of action or lawsuits of whatever
kind or character arising directly or indirectly out of this agreement and/or performance
hereof. This indemnity clause includes, but is not limited to, claims, demands, causes
of action or lawsuits for damages or injuries to goods, wares, merchandise and property
and/or for any bodily or personal injury or loss of life in, upon or about the Premises or
the surrounding premises the Lessee is required to maintain or which the Lessee uses
in connection with the business operated at, on or from the Premises. All personal
property, including trade fixtures, in the Premises shall be at the risk of Lessee, and
Lessor shall not be liable for any damage to such property arising from any cause
including, but not limited to, bursting, leaking or accidental operation of water or sewer
pipes; roof leaks or flooding. Lessee agrees to investigate, handle, provide defense for
and defend any such claims, demands, causes of action or lawsuits at its sole expense
and agrees to bear all other costs and expenses related thereto, even if the claim,
demand, cause of action or lawsuit is groundless, false or fraudulent.
Lessee shall at his own expense purchase or maintain during the term of
this agreement, the insurance coverages set out below:
a. Property Insurance - (Real property including improvements and/or
additions).
(1) Form - All Risk Coverage.
(2) Amount of Insurance - The full insurable value on
replacement cost basis.
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(3) Flood Insurance - When buildings or structures are located
within an identified special flood area, flood insurance must be
provided for the Lessor of the total insurable value of such
buildings or structures, or, the maximum of flood insurance
coverage available under the National Flood Program.
(4) The City of Clearwater, as Lessor, shall be named as an
additional insured.
b. Boiler and Machinery Insurance - If the buildings or structure
include boiler(s), pressure vessel(s), and/or air conditioning/heating equipment,
Lessee shall maintain comprehensive insurance covering loss on the demised
property including liability for damage to property of others.
(1) Repair and replacement.
(2) Amount of insurance - $1,000,000 per accident.
(3) The City or Clearwater, as Lessor, shall be named as an
additional insured.
c. Comprehensive General Liability - Coverage must be afforded on
a form no more restrictive than the latest edition of the Comprehensive General
Liability Policy filed by the Insurance Services Offices and must include:
(1) Minimum limits of $1,000,000 per occurrence combined
single limits for Bodily Injury Liability, Personal Injury, and Property
Damage Liability.
(2) Premises and/or operations.
(3) Independent contractors.
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(4) Products and/or completed operations.
(5) Personal injury coverage with employee and contractual
exclusions removed, including coverage for liability resulting from
the dispensing of alcoholic beverages, if Lessee at any time during
the term of this agreement obtains a license to serve any type of
alcoholic beverages.
(6) The City of Clearwater, as Lessor, shall be named as an
additional insured.
d. Business Auto Policy - Coverage must be afforded on a form no
more restrictive than the latest edition of the Business Auto Policy filed by the
Insurance Services Office and must include:
(1) Minimum limits of $1,000,000 per occurrence, combined
single limits for Bodily Injury Liability and Property Damage Liability.
(2) Coverage on all vehicles (owned, hired and non-owned).
(3) The City of Clearwater, as Lessor, shall be named as an
additional insured.
e. Workers' Compensation - Coverage to apply for all employees for
statutory limits in compliance with the applicable State and Federal laws. In
addition, the policy must include Employers' Liability with a limit of $500,000
each accident. If the self-insured status of the Lessee is approved by the State
of Florida, the Lessor agrees to recognize and accept same upon proof of such
approval.
In addition, Lessee shall provide to Lessor the following:
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(1) Complete copies of all insurance policies required by this
agreement.
(2) Not less than thirty (30) days' notice of cancellation or restrictive
modifications of any insurance policy providing the coverage required by
this agreement.
13. If at any time during the term of this agreement, the buildings or Premises
or any part, system, or component thereof, (hereinafter, the "demised premises") shall
be damaged or destroyed, said demised premises and any additions or improvements
thereto, shall be promptly repaired or rebuilt or restored by the Lessee to the condition
as good as the same was immediately prior to such damage or destruction at the
Lessee's risk and expense, and in accordance with plans and specifications mutually
agreed upon at the time; or if none can be agreed upon, then in accordance with the
original plans and specifications and any subsequent plans and specifications for any
additions or improvements constructed prior to the damage. The work of restoration or
rebuilding shall be in full compliance with all laws and regulations and government
ordinances applicable thereto. The insurance proceeds shall be paid to the Lessor, and
such proceeds will be used for the repair or restoration. Any cost of repairs or
restoration in excess of the insurance proceeds shall be borne by the Lessee. Any
insurance proceeds in excess of the cost of repairs or restoration shall belong to the
Lessee.
During the period of such damage or destruction, whether in whole or in
part, the monthly guaranteed rent shall abate for no more than 120 days or until
commencement of business, after receipt of all building permits, whichever is sooner.
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Lessor shall not withhold unreasonably building permits Lessee applies for and are
necessary to repair such damage or destruction.
If the demised premises shall be totally destroyed or so damaged as to
render it practically useless during the term of this agreement, then and in that event,
the Lessee may terminate this agreement as of the date of such damage with thirty (30)
days written notice to the Lessor. In the event of such termination the insurance
proceeds provided for under this agreement shall be paid to the Lessor. In the event of
such destruction and except as otherwise specifically provided under this agreement,
both parties waive any and all rights of recovery against each other for any direct or
indirect loss occurring to the demised premises.
14. Lessor, at its option, may exercise anyone of the remedies provided in
subsection f of this paragraph, except as otherwise provided herein, upon the
happening of anyone or more of the following events (Events of Default):
a. Lessee's default in the payment of any rental or other sums due for
a period of five (5) days after the due date;
b. There shall be filed by or against Lessee in any event pursuant to
any statute either of the United States or of any state, a petition in bankruptcy or
insolvency or for reorganization or arrangement, or for the appointment of a receiver or
trustee of all or a portion of Lessee's property, or if the Lessee makes an assignment by
operations of law, or if Lessee makes application to Lessee's creditors to settle or
compound or extend the time for payment of Lessee's obligations, or if execution,
seizure, or attachment for a period of 120 days. Failure to remove the levy, seizure or
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attachment within the 120-day period shall actuate the default provided by this
paragraph and the bond posted shall be forfeited.
c. Lessee's vacating or abandoning the Premises;
d. Lessee's understating gross sales by more than three (3%) percent
in sales reports given to Lessor. An error occurring by reason of computer malfunction,
typing, or other similar clerical error shall not be considered a default within the
meaning of this paragraph.
e. Lessor, at its option, may exercise anyone or more of the following
remedies, which shall be cumulative.
(1) Terminate Lessee's right to possession under this agreement and
reenter and take possession of the Premises, reletting or attempt to relet
shall only involve a prospective tenant capable of providing comparable or
better type services, at such rent and under such terms and conditions as
Lessor may deem best under the circumstances for the purpose of
reducing Lessee's liability, and Lessor shall not be deemed to have
thereby accepted a surrender of the Premises, and Lessee shall remain
liable for all rents and additional rents due under this agreement and for
all damages suffered by Lessor because of Lessee's breach of any of the
covenants of this agreement. Said damages shall include, but not be
limited to, charges for removal and storage of Lessee's property,
remodeling and repairs, leasing, commissions and legal fees, and loss of
prospective percentage rentals by Lessor. Said prospective percentage
rents shall be calculated on the basis of Lessee's gross sales for the
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immediately preceding twelve (12)-month period or for the period,
adjusted on an annualized basis, commencing with the first day of this
agreement if this agreement has not been in effect for twelve (12) months.
In addition to its remedies hereunder, Lessor may accelerate all fixed
rentals due under this agreement, in which event the Lessee shall be
liable for all past due rent, accelerated rent and damages as described
above; however with respect to the accelerated rent, Lessor shall receive
only the present value of such accelerated rent. At any time during
repossession and reletting pursuant to this subsection, Lessor may, by
delivering written notice to Lessee, elect to exercise its option under the
following subsection to accept a surrender of the Premises, terminate and
cancel this lease, and retake possession and occupancy of the Premises
on behalf of Lessor.
(2) Declare this agreement to be terminated, whereupon the term
hereby granted and all right, title and interest of Lessee in the Premises
shall end and Lessor may re-enter upon and take possession of the
Premises. Such termination shall be without prejudice to Lessor's right to
collect from Lessee any rental or additional rental which has accrued prior
to such termination together with all damages, including, but not limited to
the loss of prospective percentage rentals suffered by Lessor because of
Lessee's breach of any covenant under this agreement.
3) Exercise any and all rights and privileges that Lessor may have
under the laws of the State of Florida and/or the United States of America.
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15. Lessee shall secure prior written approval from Lessor for modifications or
remodeling of existing facilities or for the construction of any new facilities, such
approval not to be unreasonably withheld. The terms remodeling or modifications as
used herein shall include only those events requiring the issuance of a building permit.
It is agreed that the existing improvements, together with any improvements
constructed by Lessee during the term of this agreement on the demised premises,
shall become the property of the Lessor upon the expiration of termination of this
agreement; provided, however, that said reference to improvements herein
contemplates improvements to the real estate which become a part of the land as
distinguished from personal property utilized by the Lessee.
16. Lessee shall, at his expense, at all times during the terms of this
agreement keep the Premises and all improvements and facilities thereon in good
order, condition, and repair. It is specifically understood by Lessee that the Lessor has
the right to inspect the Premises and improvements at any time to ensure that the
Premises and improvements are indeed in good order, condition, and repair. Upon the
termination or expiration of this agreement, Lessee shall repair any and all damages to
the Premises caused by the removal by Lessee of personal property.
17. Upon the termination or expiration of the agreement for whatever cause,
the Lessee shall have the privilege at his own expense of removing its equipment,
signs, insignia, and other indicia of its tenancy or use.
18. Lessee agrees to indemnify and save harmless the Lessor by reason of
any mechanic's lien which may be asserted as a claim against the property, and to
furnish Lessor a good and sufficient bond signed by a reputable bonding company
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doing business in Florida, which bond shall be in an amount equal to one hundred 100
percent (100%) of the cost of construction of the contemplated improvements to the
demised premises.
19. The Lessee hereby covenants and agrees to promptly and continuously
comply with all regulations and orders of the Florida Department of Business and
Professional Regulation and officers of the local, state, and national governments; and
Lessee hereby covenants and agrees to keep, operate, and maintain the restaurant in
such a manner as to avoid any warnings, violations or notices to show cause being
issued by any regulatory agency authorized to inspect the Premises under Florida
Statute 509 as it presently exists or as it may be amended. In addition, Lessee agrees
to forward to Lessor a copy of each inspection report issued in accordance with Florida
Statute 509 as it presently exists or as it may be amended within five (5) days of
receiving any such reports.
20. Lessor covenants and agrees that upon payment by Lessee of the rents
herein provided, and upon observance and performance by Lessee of all the
covenants, terms, and conditions required of the Lessee by the agreement, Lessee
shall peaceably and quietly hold and enjoy the Premises for the term of the agreement
without hindrance or interruption by Lessor.
21. Notices hereunder shall be given only by registered letter and shall,
unless otherwise expressly provided, be deemed given when the letter if deposited in
the mail, postage prepaid, addressed to the party for whom intended at such party's
address first herein specified or to such other address as may be substituted therefore
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by proper notice hereunder. Notice to be provided to Lessor and Lessee as stated
below:
As to Lessor:
City Attorney's Office
City of Clearwater
Post Office Box 4748
Clearwater, Florida 33758-4748
As to Lessee:
Clearwater Beach Seafood, Inc.
37 Causeway Boulevard
Clearwater, Florida 33767
22. No sign of any type will be posted, erected, hung or otherwise placed in
view of the general public so as to advertise any product or identify the restaurant
unless permitted by the City of Clearwater Code of Ordinances, as they now exist or as
they may be amended, and unless authorized and approved by the City.
23. Restroom facilities must be kept clean and sanitary at all times and are
subject to inspection by Lessor. No coin-operated toilets or other coin-operated
devices will be allowed in the aforementioned restroom facilities except upon written
authorization of the City. Lessee agrees to notify immediately the Lessor's Police
Department at any time the Lessee becomes aware of any activity that is a violation of
a law in the area of the Premises.
24. Lessee shall not advertise any business not operated at, on, or from the
Premises without the prior written consent of the City.
25. In the event the Lessor retains an attorney to enforce any of the
provisions of this agreement or renewals of or addenda to this agreement, or to effect
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the enforcement of any legal right of the Lessor against the Lessee, the Lessee agrees
to pay the Lessor all costs of said enforcement reasonably incurred, including court
costs and reasonable attorney's fees.
26. The undersigned officer of Lessee shall personally guarantee to Lessor
the timely performance of all covenants and provisions of this agreement, including the
payment of all rent due hereunder. This guarantee shall be evidenced by the personal
guarantor's signature on this agreement.
IN WITNESS WHEREOF, this agreement is executed as of the date first above
written.
Countersigned: CITY OF CLEARWATER, FLORIDA
ByN~~7Ir"
ayor-Commissioner Miohael J. Roberto,~ity Manager
WILLiANI 6. Ifoi</VE-:II: ~NI~Je/m
Attest:
n Carassas, Assistant City Attorney
By:
Print:
Perso
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EXHIBIT "A"
Legal Description of Premises:
That part of Lots 12 and 13, CITY PARK SUBDIVISION, according to the plat thereof
recorded in Plat Book 23, Page 37, of the public records of Pinellas County, Florida,
described as follows: Begin at the Northwest corner of Lot 13 and run Easterly along
the North line of Lot 13, a distance of 110 feet to a point, said point being the Point of
Beginning; run Easterly along the North line of Lots 12 and 13, a distance of 100 feet to
a point; thence run Southerly along a line parallel to the East line of Lot 13, a distance
of 60 feet to a point; thence run Westerly a distance of 100 feet along a line parallel to
and 60 feet South of the North line of Lots 12 and 13 to a point; thence run Northerly
along a line parallel to the East line of Lot 13, a distance of 60 feet to a point of
beginning.
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EXHIBIT "B"
Improvements by Lessee:
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