FIVE YEAR LEASE AGREEMENT
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LEASE AGREEMEIn
THIS LEASE AGREEMENT, made and entered into this I b -tb day of
~ ' 1991, by and between the CITY OF CLEARWATER, FLORIDA, a
municipal corporation, hereinafter referred to as "Lessor", and EDWARD M.
METALLO and URSULA M. METALLO, d/b/a Marina Restaurant, 25 Causeway Boulevard,
Clearwater, Florida 34630, hereinafter referred to as "Lessee."
WIT . B S S B T H :
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 five (5) years beginning October
1, 1991, and ending September 30, 1996. 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. site improvements are permanent and cannot be moved economically
to another site;
b. 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, as depreciated, shall
be reimbursable. The unamortized cost of any such improvements shall be
certified by an independent Certified Public Accountant; and
c. the claim for reimbursement shall be supported by independent
audited financial statements prepared by a Certified Public Accountant, which
shall attest to the 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 $78,000.00 for the 60 month term of this
lease, which shall be paid in equal monthly payments of $1,300.00. Each
monthly payment shall be due and payable on the first day of the month, and
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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 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 an 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 anum from date due until paid, plus a
late charge of Ten Dollars ($10.00) to cover Lessor's expenses in collecting
such delinquency.
c. In addition to the first month's rent of $1,300.00, which is due
and payable on the first day of the lease, the Lessee shall pay $1,300.00 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 restaurant, and as a part of the consideration for
this lease Lessee covenants and agrees that it will maintain therein and keep
open to the public said restaurant 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
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hereof except as a restaurant, including beer and wine sales for on premises
consumption only. In addition, the Lessee shall be allowed to sell cigarettes
and promotional items such as tee shirts.
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 right 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 of 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 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
leases, 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 the
operation of the business conducted on the demised premises, which are
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as a lunchroom and refreshment stand, including beer and wine sales for on
premises consumption only.
a. In addition, the Lessee shall be allowed to sell cigarettes and
promotional items such as tee shirts.
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 right 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 of 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 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
leases, 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 the
operation of the business conducted on the demised premises, which are
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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 this lease, except for any period of time involved in
natural disasters, including governmental orders or requirements such as
evacuation for hurricane preparations, and any time necessary to repair or
replace any damage caused to the demised premises by as 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 hereof (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.
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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.
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 or Default if Lessee has commenced curative action with 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 or
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 service, 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 lease and for all damages suffered by Lessor
because of Lessee's breach of any of the covenants of this lease. Said
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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. 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 premise 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 ~essee heresy agrees ~e perfe~ aer~aia ~pre~eMea6s ~e ~he
eJl6erier sf i!he seMises prsMises. These impre.eMeai!s shall iaehlse reMe".'al
aas replaaeMeai! ef ~he rYs~es air seasi6ieaer aasiag leaai!ed ea ,he aer~h side
ef i!he seMises preMises wii!hia 9Q says. These iMprS7SMefti!s shall Be perferMsd
ato tohe eJlpeftse ef ~he ~essee.
b. The Lessee hereby covenants and agrees to keep and maintain the
premises and fixtures located herein in good condition and repair during the
term of this lease 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, at its own cost, may place only window, wall or canopy
signs on the demised premises, provided said signs are approved as to color,
style and letter size by the Harbormaster of the Lessor, and additionally
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conform to the sign ordinance of Lessor presently in force or as may be
amended from time to time during the term of the lease regarding signs. No
other signs shall be placed or maintained by the Lessee. Any nonconforming
sign now on the premises shall be brought into compliance by October 13, 1992,
or shall be removed. The Lessee shall, upon expiration or termination of the
lease, completely remove any and all signs that have been placed on the leased
premises by the Lessee.
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.
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 the 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 hinderance 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
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directed in care of its Law Department at the above-cited address.
17. Lessee also retains the right to terminate this lease, for any
reason, upon ninety (90) days written notice to lessor.
18. As required by Section 404.056(8), Florida Statutes, the Lessee shall
take notice of the following:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit.
19. This lease agreement constitutes the entire contract between Lessor
and Lessee concerning the leasing of the premises and consideration thereof.
IN WI~SS WBBRBOF,
this / (p ~ day of
the parties hereto have set their hands and seals
~ ' 1991.
countersigned:
City of Clearwater, Florida
By:
l.ta Garvey
Mayor-Commissioner
Approved as to form and correctness:
Attest:
- .'.-........
fYl~ A 7;;/u;.
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BY:~~~
Ed~.ard M. M~l..lO.~
/-L~ do- fLl2..... ?Lv-
Ursula M. Metallo
d/b/a Marina Restaurant
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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 records of Pinellas
County, Florida.
Exhibit "B"
INSURANCE REQUIREMENTS
1. Liabilitv 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 window 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 thirty (30) days notice of
cancellation or restriction.
4. certified Copies of Policies. The Lessee shall provide the Lessor
(City's Risk Management Office) 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.
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