Loading...
SIXTY-TWO MONTHS LEASE AGREEMENT -< I.. I LEASE AGREEMENT THIS LEASE AGREEMENT, made and entered into this ~ 'f4- day of ,1986, by and between the CITY OF CLEARWATER, FLORIDA, a m icipal corporation, hereinafter referred to as "Lessor," and COLONY MARINA RESTAURANT, 25 Causeway Boulevard, Clearwater, Florida 33515, hereinafter ref erred to as "Lessee." WITNESSETH: That in consideration of the covenants herein contained of the granting of this lease and the sums paid and to be paid hereunder, the Lessor hereby leases to the Lessee and the Lessee hereby leases from the Lessor according to the terms, conditions and covenants herein contained the following described premises in the City of Clearwater, Pinellas County, Florida, to wit: See attached Exhibit "A." THE PARTIES HERETO HEREBY COVENANT AND AGREE AS FOLLOWS: 1. The term of this lease shall be for a period of sixty-two (62) months, beginning on the 1st day of August, 1986, and ending on the 30th day of September, 1991. The Lessor retains the right to terminate this lease for any municipal need consistent with the Lessor's charter; and, in addition, Lessor may terminate this lease if the State of Florida or any of its agencies or political subdivisions thereof acquire the demised property or any portion thereof for a public purpose. This right of termination is in addition to the right of termination set out in paragraph 14 of this Agreement. However, should the Lessor terminate this agreement for any reason, the Lessor will reimburse the Lessee for its unamortized real property improvements to the site, provided that: a. said improvements are permanent and cannot be moved economically to another site; b. the maximum reimbursement shall not exceed (none) c. in the event that additional improvements are made to the demised premises with the written consent of the Lessor during the term of this lease, the unamortized cost of such improvements may be added to the maximum reimbursement amount set forth in subparagraph b above, as depreciated. The unamortized cost of any such improvements shall be certified by an independent Certified Public Accountant; and -1- Q C' Fl/Yl tf".It.C~ Q{~4t.1UJ)U> ~A'" ttv\-, 8, J q I KG. !. CIa 15- Lf I I d. the claim for reimbursement shall be supported by independent audited financial statements prepared by a Certified Public Accountant, which shall attest to fairness of the original investment values and subsequent amortization expenses. 2. The Lessee hereby covenants and agrees to pay rental thereof as follows: a. To pay the total sum of $74,400.00 for the sixty-two (62) month term of this lease, which shall be paid in equal monthly payments of $1,200.00. Each monthly payment shall be due and payable on the first day of the month, and shall be delinquent if not paid on or before the fifth day of the month. In addition to the monthly rental, the Lessee shall, at the end of each lease year, pay an additional amount equal to ten (10) percent of yearly gross sales exceeding $144,000.00 throughout the term of this lease. This payment will be made along with the Lessee's payment of the monthly rental for the first month of each lease year beginning with the second lease year. The Lessee will provide the Lessor within 15 days after the end of each month during the term of this lease a statement showing the amount of gross sales during that month. The statement used by the Lessee to report such sales will be in a form satisfactory to the City Manager or his designee, showing the amount of gross sales for the month being reported and the amount of year-to-date gross sales for the lease year. The term "gross sales" as used in this paragraph means the entire amount of actual sales receipts, whether for cash or otherwise, for all sales of food, services, beverages, or other receipts whatsoever from all business conducted in, on or from the premises. No deduction shall be allowed for uncollected or uncollectible credit accounts. Such term shall not include, however, any sums collected and paid out for any sales or excise tax imposed by any governmental authority wherein Lessee is regarded as the collecting agent. b. Any amount due from Lessee to Lessor under this lease which is not paid before the day the payment becomes delinquent shall bear interest at the rate of fourteen (14%) percent per annum from date due until paid, plus a late charge of Ten Dollars ($10.00) to cover Lessor's expenses in collecting such delinquency. -2- 1 I c. In addition to the first month's rent of $1,200.00 which is due and payable on the first day of the lease, the Lessee shall pay $1,200.00 in advance as a deposit to secure the faithful performance of the Lessee's obligations hereunder. The Lessor may deduct from the deposit any amount which might become due from the Lessee to the Lessor for damage to the premises or for any reason or cause whatsoever except rent. At the end of the term of this lease, the deposit amount or the balance thereof, if any, shall be credited to Lessee's last monthly rental payment. 3. The demised premises shall be used only for the purpose of conducting therein the business of a lunchroom and refreshment stand, and as a part of the consideration for this lease Lessee covenants and agrees that it will maintain therein for the benefit of the public a lunchroom and coffee shop, serving sundaes and other milk products, and serving breakfasts, salad lunches and short orders, and will maintain and keep open to the public said lunchroom at least twelve (12) hours each and every day, seven days per week, except as hereinafter provided, and Lessee further agrees that should the demands of the public justify it, to change said hours of opening to meet such demands upon written request from the Lessor. The demised premises shall not be used for any other purpose during the term hereof except as a lunchroom and refreshment stand, and the Lessee particularly covenants and agrees that no beer or alcoholic beverages shall be sold or served for consumption in, or or about the demised premises. 4. The Lessee hereby covenants and agrees to make no unlawful, improper, or offensive use of the leased premises. Lessee further covenants and agrees not to assign, mortgage, pledge, hypothecate or sublet this lease or any of its rights herein in whole or in part without the prior written consent of Lessor. The consent of Lessor to any assignment, mortgaging, pledging, hypothecating or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment, mortgage, pledging, hypothecating or subletting. This paragraph shall be construed to include a prohibition against any assignment or subletting by operation of law. If this lease is assigned, or if the premises or any part thereof are sublet or occupied by anybody other than Lessee, Lessor may collect rent from the assignee, sub-tenant or occupant, and apply the net amount collected to the rent herein required, but no such occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the -3- I I assignee, sub-tenant or occupant as tenant, or a release of Lessee from the further performance by Lessee of covenants on the part of Lessee herein contained. If at any time during the term of this lease, any part or all of the corporate shares of Lessee shall be transferred by sale, assignment, bequest, inheritance, operation of law or other disposition so as to result in a change in the present effective voting control of Lessee by the person, persons or entity which presently is the ultimate owner of a majority of such corporate shares on the date of this lease, Lessee shall promptly notify Lessor in writing of such change. If the new owner is a private or public corporation, Lessor shall promptly advise Lessee if it has any objections thereto and the reasons therefor. Lessee shall have thirty (30) days from receipt of said objections within which to try to convince Lessor of the unreasonableness of its objections, failing which Lessor may terminate this lease any time after such change in control by giving Lessee ninety (90) days prior written notice of such termination, such notice to be provided within thirty (30) days following the time period provided to Lessee. Lessee shall not permit any business to be operated in or from the premises by any concessionaire or licensee. 5. Lessee agrees that it will promptly pay all ad valorem real property taxes and personal property taxes that may be assessed and filed against the demised property during the term of this lease. 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 and fees, including, but not limited to, occupational license, beverage license, and permits relating to the operation of the business conducted on the demised premises, which are required by law. Nothing herein shall obligate Lessee to payor to reimburse Lessor for the payment of assessments for permanent improvements, including but not limited to sidewalks, sewers, and streets, that would benefit the demised premises. 6. The Lessee hereby covenants and agrees to pay all bills for electrical service to the premises when due, which service shall be provided either at actual City cost or, if the premises are separately metered by Florida Power Corporation, in accordance with the company's rates and billing. At no expense to the Lessee, the Lessor agrees to furnish a refuse disposal location and a refuse disposal container located outside the demised premises for the use of the Lessee. 7. The Lessee further covenants and agrees to operate the business authorized to be conducted on the premises during the entire year of each year during the term of -4- J 1 this lease, except for any period of time involved in natural disasters, including governmental orders or requirements such as evacuations for hurricane preparation, and any time necessary to repair or replace any damage caused to the demised premises by a natural disaster. 8. The Lessee assumes full responsibility for and covenants and agrees to save harmless and indemnify the Lessor from any and all liability for damage to property and injury to persons resulting from or in connection with the Lessee's use and occupancy of the demised premises under this lease. In addition, during the term of the lease, Lessee shall at Lessee's expense obtain and maintain insurance coverage conforming to the requirements in Exhibit "B" attached hereto. 9. If at any time during the term of this lease, the building or premises or any part, system or component thereof (hereinafter, the "demised premises") shall be damaged or destroyed to the extent that the Lessee cannot operate the business authorized to be conducted thereon, and the Lessor determines that said demised premises can be restored by making appropriate repairs, the monthly rent as provided for in paragraph 2a above shall abate until the demised premises have been restored or until commencement of business by the Lessee, whichever is sooner. If the demised premises shall be totally destroyed or so damaged as to render it practically useless during the term of this lease, then and in that event, the Lessee or Lessor may terminate this lease as of the date of such damage or upon thirty (30) days written notice to the other party to this lease. In the event of damage or destruction as enumerated above, and except as otherwise specifically provided under this agreement, both parties waive any and all rights of recovery against the other party for any direct or indirect loss occurring to the demised premises or as a result of damage or destruction of the demised premises. In the case of demolition and reconstruction of the Marina or major renovation by construction, the Lessee shall be given the first opportunity to bid for similar space, provided that space for Lessee's type of business is allocated therein. 10. 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. Lessee's continued default with respect to any other covenant of this lease for a period of fifteen (15) days after receipt of written notice -5- 1 I of such default by Lessee from Lessor, provided that if such default reasonably requires more than fifteen (15) days to cure, there shall be no Event of Default if Lessee has commenced curative action within the fifteen (15) day period and diligently prosecutes such action to completion; c. There shall be filed by or against Lessee in any court 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 Lessee makes an assignment for the benefit of creditors or if there is an assignment by operation 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 shall be levied upon any of Lessee's property or the premises are taken or occupied or attempted to be taken or occupied by someone other than Lessee; however, in the event of execution, seizure or attachment, Lessee may post a bond satisfactory to Lessor which bond shall stay the default resulting from any execution, levy, seizure or attachment for a period of 120 days. Failure to remove the levy, seizure or attachment within the 120 day period shall constitute an Event of Default, and the bond posted shall be forfeited; or d. Lessee's vacating or abandoning the premises; then 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 lease and re-enter and take possession of the premises, and relet or attempt to relet the premises on behalf of Lessee; however, such 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 -6- I I additional rents due under this lease and for all damages suffered by Lessor because of Lessee's breach of any of the covenants of this lease. Said damages shall include, but not be limited to, charges for removal and storage of Lessee's proeprty, remodeling and repairs, leasing, commissions and legal fees. In addition to its remedies hereunder, Lessor may accelerate all fixed rentals due under this lease, 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 subparagraph 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 lease to be terminated, whereupon the term hereby granted and all rights, 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 damages specified in subparagraph (1) of this paragraph which are suffered by Lessor because of Lessee's breach of any covenant under this lease. (3) Exercise any and all rights and privileges that Lessor may have under the laws of the State of Florida and the United States of America. 11. a. The Lessee agrees to replace at Lessee's expense the existing tile floor covering and window drapes within the demised premises with materials of such color and quality as may be specified by the Harbormaster. The Lessee further agrees that the Lessor may at Lessor's expense and option remove the existing plate glass separating the demised premises from the marina lobby and substitute roll-down type security devices. b. The Lessee hereby covenants and agrees to keep and maintain the premises and fixtures located therein in good condition and repair during the term of this lease -7- I I and any extension hereof, and to return the premises to the Lessor upon the expiration of the term hereof in as good condition as they now are, ordinary wear and tear and damage by the elements only excepted. No alteration or improvements may be made to the premises without the written consent of the Lessor. Any and all fixtures attached to the premises shall revert absolutely and become the property of the Lessor upon the expiration of the term hereof; provided, however, that the Lessor at its option may require the Lessee to remove all fixtures, partitions, racks, shelves or other improvements from the premises upon the expiration of the term of the lease at the cost of the Lessee. Any damage to the premises occasioned by said removal shall be repaired at the Lessee's expense. 12. The Lessee may place appropriate signs on the plate glass windows of the demised premises, provided said signs are approved by the Harbormaster of the Lessor, and additionally conform to the ordinances of Lessor presently in force or as amended from time to time during the term of the lease regarding signs. No sign other than the sign aforesaid shall be painted, erected, constructed or maintained by the Lessee. The Lessee shall, upon expiration of the lease, completely remove any and all signs on the plate glass windows, and such other signs as might be permitted during the term of this lease. 13. If at any time during the term of the lease the Lessee is authorized to make improvements to the demised premises, Lessee agrees in such event to indemnify and save harmless the Lessor as follows: a. For any mechanic's lien which may be asserted as a claim against the leased property; and b. For the faithful performance of the covenants contained in paragraph 11 above; and c. To obtain from the contractor a good and sufficient performance and payment bond signed by a reputable insurance company doing business in Florida, which bond shall be in an amount equal to one hundred (100%) percent of the cost of construction of the contemplated improvements to the demised premises, guaranteeing that the improvements will be completed and that subcontractors, laborers and materialmen will be paid in accordance with the contract for the improvements. -8- I , 14. In the event of the acquisition of this property or any portion thereof by exercise of proper authority, by any governmental agency other than Lessor, whether by eminent domain or otherwise, it is understood and agreed that notification of the institution of such action shall be promptly given Lessee, so that Lessee may intervene in such action as a party. The award of compensation shall be apportioned by the parties in accordance with the Florida law of eminent domain. Rents shall abate in proportion to the extent of interference with or discontinuance of Lessee's business; provided, however, in such event the Lessor may, at its sole discretion, terminate this lease under the provisions of paragraph 1 above by making the payment to the Lessee as provided therein. 15. 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 lease, Lessee shall peaceably and quietly hold and enjoy the leased premises for the term of the lease without hindrance or interruption by Lessor. 16. Notices hereunder shall be given only by registered or certified mail, and shall be deemed given when the letter is deposited in the mail, postage and other charges 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 therefor by proper notice hereunder. Lessor's notices shall be directed in care of its Law Department at the above-cited address. 17. This lease agreement constitutes the entire contract between Lessor and Lessee concerning the leasing of the premises and consideration thereof. IN WITNESS WHEREOF, the parties hereto have set their hands and seals this ~ -3CD day of ~'l , 1986. CITY OF CLEARWATER, FLORIDA (Lessor) Byi1t!~ Attest: --- --'. -"! C~~E-.);;;~ \ ity~ . erk....-:::,":, .: ~= .= -~ ~~ ~=- Approved as to form and correctnes . . ~ "- /~ ..... -.- . ~ - "~'-- .:::- .' City -- -9- ,. -, ~ ( I Witnesses as to Lessee: I COLONY MARINA RESTAURANT, INC. (Lessee) By ~W t1/tfr~ / President Attest: ~~/ ~.L-.- Secretary ~ $'RJ~ '/71-- /'/7~~ - 10- :.n.... I 'I Exhibit "A" LEGAL DESCRIPTION The lunchroom on the ground floor of the Clearwater Marina Building, located on Lots 11 and 12 of City Park Subdivision, according to the map or plat thereof as recorded in Plat Book 23, page 37 of the Public Record of Pinellas County, Florida. Exhibit "D" INSURANCE REQUIREMENTS 1. Liability Insurance. Lessee shall maintain: a. Comprehensive General Liability insurance to include premises/operator liability and electrical liability in an amount not less than $300,000 combined single limit Bodily Injury Liability and Property Damage Liability. b. Comprehensive Plate Glass Insurance on a replacement cost basis covering loss or damage by any means, except by fire, or war, whether declared or not, to the plate glass windows in the demised premises. c. Worker's Compensation Insurance applicable to its employees for statutory coverage limits in compliance with Florida laws. 2. Additional Insurance. The City is to be specifically included as an additional insured on all liability coverage described above. 3. Notice of Cancellation or Restriction - All policies of insurance must be endorsed to provide the City with sixty (60) days notice of cancellation or restriction. 4. Certified Copies of Policies. The Lessee shall provide the Lessor with certified copies of all policies as required above before occupancy of the demised premises, and from time to time as the policies may be renewed, revised or obtained from other insurers. -11- --- TO: FROM: COPIES: I C~~Y OF CLEARWATER I nterdepartment Correspondence Sheet Manager Elizabeth S. Haeseker, Assistant City William C. 'Held, Assistant Harbormaster RECEIVED Cyndie Goudeau, City Clerk M/R 26 1986 SUBJECT: Colony Marina Restaurant March 25, 1986 DATE: CITr CLEEK I have received and reviewed the insurance policy for the Colony Marina Restaurant. The insurance meets the requirements of their lease agreement. Policy expires December 28, 1986. WCH:mm