FIVE YEAR LEASE (2)
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THIS LEASE AGREEMENT, made and entered into this I J of ~~^" ,
199jg, by and between the CITY OF CLEARWATER, FLORIDA, a municipal
corporation, hereinafter referred to as "Lessor", and Roy M. Carpenter and
Mary Kay Carpenter, d/b/a Marina Gifts and Souvenirs, rooms 5 and 9, 25
Causeway Boulevard, Clearwater, Florida 34630, hereinafter referred to as
"Lessee."
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LEASE AGREEMENT
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. I T N 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, 1996, and ending September 30, 2001. 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.
2. The Lessee hereby covenants and agrees to pay rental thereof as
follows:
a. To pay the total sum of $133,350 for the 60 month term of
this lease, which shall be paid in equal monthly payments of $2,222.50.
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. Also. a Consumer Price Index (CPI) increase will be added to the
monthly rental oavment on January 1. 1998. January 1. 1999. January 1. 2000
and January 1. 2001. The CPI adiustment shall be based on the U. S.
Deoartment of Commerce "National Consumer Price Index" for all Urban
Consumers. U. S. city Averaqe. ("CPI-U") indicator and shall be determined
by dividinq the CPI-U indicator from the most recentlY oublished indicator
oriorto the adiustment date and multioly the resultant number by the
yearly lease rental amount of the most recent lease oeriod. 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
$241,200 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
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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 $2,222.50, which is
due and payable on the first day of the lease, the Lessee shall pay $122.50
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 retail sales, limited to the sale of
gift items, specialties, beach clothing and toys.
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 or the leasehold created by this agreement, or
both, 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
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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
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, to 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.
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 any
one or more of the following events ("Events of Default"):
a. Lessee's default in the payment of any rental or other sums
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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 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
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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 hereby agrees to perform certain improvements to
the exterior of the demised premises. These improvements shall include -
NONE. These improvements shall be performed at the expense of the Lessee.
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 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. No other
signs shall be placed or maintained by the Lessee on the premises. Any
nonconforming sign now on the premises shall be removed by the Lessee
within 30 days of approval of the lease. 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
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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 directed in care of its Law Department at the above-cited address.
17. 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.
18. This paragraph will apply to all profit making organizations
leasing property from the lessor. The lessee will provide Guaranty of
payment of Rent under the Lease Agreement.
GUARANTY OF PAYMENT OF RENT
"The undersigned officers of Lessee corporation shall personally guarantee
to Lessor the timely performance by said corporation of all covenants and
provisions of this Lease Agreement, including, but not limited to the
timely payment of all rent due hereunder. This guaranty shall be by either
(a), execution of a Guaranty of Payment of Rent Under the Lease Agreement
attached as Exhibit "C" hereto; or, (b), by providing Lessor with an
Indemnity Bond in an amount equal to the full rental payment obligations
due hereunder."
19. Ad~itiona~lVh the Lessee and all his/her emDlovees will Dark their
private veh'cles i t e Memorial civic Center Darkinq lot or other Darkinq
lot desiqnated bv the Lessor.
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20. 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 II~ day of ~~ ' 199~.
City of Clearwater, Florida
By:
jld/ r-
E~izab, M. eptula
Cl.ty Manager
Approved as to form and
legal sufficiency:
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.k"h; C. Carassas
Assistant city Attorney
Attest:
"- Z-~ ~.nL--
l.a E.-Go~eau
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Cler-k- -.
~0Wi0n
la~hl~ ~d?~
o
By:' . #l ,~L,L
Hary~pe er
d/b/a Marina Gifts and Souvenirs
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Exhibit "A"
LEGAL DESCRIPTION
Room/s 5 and 9, 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. 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 thirty (30) days notice
of cancellation or restriction.
4. certified CODies 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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EXHIBIT "c"
GUARANTY OF PAYMENT OF RENT UNDER LEASE AGREEMENT
Guaranty is made this day of , 1996, by Roy M.
Carpenter and Mary Kay carpenter of Marina Gifts and Souvenirs, City of
Clearwater, County of Pinellas, State of Florida, herein referred to as
"Personal Guarantors:, being the owners respectively, of Marina Gifts and
Souvenirs herein referred to as "Obligor:, to CITY OF CLEARWATER, C/O City
Attorney, P.O. Box 4748, Clearwater, Florida 34618-4748, herein referred to
as "Obligee".
RECITALS
1. Obligee has leased premises at 25 Causeway Blvd. to Obligor,
whose business address is 25 Causeway Blvd., city of Clearwater, County of
Pinellas, State of Florida, for use by Obligor in conducting its business
of retail sales, limited to the sale of gift items, specialties, beach
clothing and toys.
2. The lease is conditioned upon guarantors giving security for
payment of rent thereunder in the form of a personal guaranty.
SECTION ONE
STATEMENT OF GUARANTY
Guarantors guarantee payment of rent under the attached lease
agreement pursuant to the terms thereof. If obligor defaults in the
payment of any installment of rent, guarantors shall pay the amount of such
installment within 30 days after receipt of notice of default and demand
for payment. Guarantors liability hereunder shall not be affected by
reason of any extension of time for payment of any installment granted by
obligee to obligor.
SECTION TWO
DURATION
This guaranty shall not be revoked during the five year term of the
lease. Thereafter, if the lease is renewed on the same terms, this
guaranty shall remain in force until receipt by obligee of written notice
of revocation from guarantors, or until terminated pursuant to Section
Three hereof. Renewal of the lease on different terms shall, at the option
of the guarantors, operate to terminate this guaranty as of the end of the
five year period.
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SECTION THREE
LIMITATION OF LIABILITY
The maximum amount recoverable by obligee from guarantors pursuant to
this guarantee is $133,350, which amount is equal to the total rent due
during the initial five year term of the lease. If the aggregate of
payments made by guarantors hereunder reaches the above-mentioned amount,
this guaranty shall terminate immediately.
SECTION FOUR
WAIVER OF NOTICE OF ACCEPTANCE
Notice of acceptance of this guaranty is expressly waived.
IN WITNESS WHEREOF, guarantors have executed this guaranty at
the day an first above written.
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