FOOD CONCESSION AND RESTROOM COMPLEX BUILDING
LEASE AGREEMENT
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THIS LEASE AGREEMENT, made and entered into this~ day of
,2004, by and between the CITY OF CLEARWATER, FLORIDA, a
nicipal corporation, hereinafter referred to as "Lessor" and KEN AND WADE
MILTON, hereinafter referred 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 located in
the City of Clearwater, Pinellas County, Florida, to wit:
Food Concession and Restroom Complex Building located
on the West 140 feet of the East 215 feet of the South ~ of
Lot 18, and Lots 19 and 20, Lloyd, White and Skinner
Subdivision, in Section 7, Township 29 South, Range 15
East, as recorded in Plat Book 13, pages 12 and 13, of the
Public Records of Pinellas County, Florida.
THE PARTIES HERETO HEREBY FURTHER COVENANT AND AGREE AS
FOLLOWS:
1. The term of the lease is 3 months, beginning on the 15t day of July, 2004
and ending on the 30th day of September, 2004. Reference to the City Manager
throughout this lease refers to Lessor's City Manager or his designated agent. The term
"Lessor" refers to the City and any act to be taken by the Lessor under this Lease must
be taken by the City Council.
2. (a) The City Manager may cancel this lease at any time by giving 15
days prior written notice to the Lessee, or any of his agents or his attorney, when in the
opinion of the City Manager, 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 City Manager might detract from Clearwater and is not in the best interest
of the people of Clearwater. Such written notice shall state in particular any and all
complaints and Lessee shall have 15 days within which to reasonably correct such
complaints to the satisfaction of the City Manager.
(b) The Lessor retains the right to terminate this lease for any
municipal need consistent with Lessor's charter. This right of termination is to be
considered in addition to the right of termination set out in paragraph 2(a) of this
agreement.
3. The Lessee shall be allowed to sell exclusively the following merchandise
at the Food Concession Complex:
(a) Hot foods: hot dogs, hamburgers, and other like hot foods
such as French fries, as may be prepared using the grill and fryer;
(b) Ice cream;
(c) Cold sandwiches, both prepared and pre-packaged, cookies,
popcorn, chips and other such packaged food items;
(d) Beverages (non-alcoholic);
(e) Sundry items and other personal beach recreation and clothing
items.
4. The Lessee shall be allowed to rent beach chairs, cabanas, umbrellas,
and rubber or canvas floats. The equipment may be used on City-owned property South
of the westward extension of First Street and North of the filled area used for parking,
more particularly described as:
Lots 5 through 32, inclusive, of Lloyd, White and Skinner subdivision, less
any of the above-described property used now or in the future by the Lessor for other
purposes.
5. The Lessee is specifically prohibited from hawking or other verbal
solicitation of any type either at the Food Concession Complex or the beach equipment
rental area. No coin-operated amusement devices or machines or any juke boxes will
be allowed. No inside or outside loud speakers will be permitted.
6. The Lessee is responsible for the cleanliness and maintenance of the
public restrooms.
7. The hours of operation for the Food Concession Complex, beach
equipment rental concession and restrooms shall be no earlier than 8:00 a.m. and no
later than 10:00 a.m. for opening, and no later than one-half hour after sunset for
closing. The beach rental equipment shall be removed from the beach and stored by
sunset. The use of trucks and other vehicles on the beach will be permitted for
distribution and pickup of beach equipment only. The times for distribution and pickup
and the conditions under which the vehicles are operated must be authorized in writing
by the City Manager.
8. The Lessor reserves the right to review and approve prices to be charged
for all sale and rental items. Prices may be modified when authorized in writing by the
City Manager. The Lessee has the right to appeal any decision of the City Manager to
the City Council. A list of current prices must be submitted prior to July 1 , 2004.
9. The Lessee hereby covenants and agrees to pay:
(a) For concessions, sundries and beachwear as follows:
(1) A guaranteed minimum rental in the amount of $21,249.99
in equal monthly payments of $7,083.33, which will be due and payable
on the first day of each month.
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(2) In addition to the guaranteed minimum rental provided for
in paragraph 9(a)(1), at the end of each month, ten percent (10%) of
monthly gross sales exceeding $70,833.00. This payment will be made
within 20 days of the end of each monthly period during the term of this
lease and shall be accompanied by a statement showing the amount of
gross sales during the preceding month.
The statement used by the Lessee to report such sales will be in
such form as to be satisfactory to the City Manager and must be certified
as correct by the Lessee's chief financial officer or his designee, showing
the amount of gross sales at and/or from the demised premises during
the monthly periods being reported by the statement.
(3) The term "Gross Sales" as used in paragraph 9(a)(1) and
(2) means the entire amount of the actual sales price, whether for cash or
otherwise, of all sales of food, services, beverages, clothing, or other
receipts whatsoever of all business conducted in, on or from the
premises, including mail or telephone orders received or filled at 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 excess tax imposed by any duly
constituted governmental authority wherein Lessee is regarded as the
collecting agent.
(b) For beach rentals as follows:
(1) A guaranteed minimum rental of $2,149.98 payable in
equal monthly payments of $716.66, which will be due and payable on
the first day of each month.
(2) In addition to the guaranteed minimum rental provided for
in paragraph 9(b)(1), at the end of each month, ten percent (10%) of
monthly gross sales exceeding $7,166.00. This payment will be made
within 20 days of the end of each monthly period during the term of this
lease and shall be accompanied by a statement showing the amount of
gross sales during the preceding month
The statement used by the Lessee to report such sales will be in
such form as to be satisfactory to the City Manager and must be certified
as correct by the Lessee's chief financial officer or his designee, showing
the amount of gross sales at and/or from the demised premises during
the monthly periods being reported by the statement and the amount of
year-to-date gross sales.
(3) The term "Gross Sales" as used in paragraph 9(a)(1) and
(2) means the entire amount of the actual sales price, whether for cash or
otherwise, of all beach chairs, cabanas, umbrellas, floats and other
receipts whatsoever from all beach rental business conducted in, on or
from the leased premises as per this Agreement. 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
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excess tax imposed by any duly constituted governmental authority
wherein Lessee is regarded as the collecting agent.
(c) The Lessee further agrees to submit an audited certification of
monthly gross sales as certified to by a Certified Public Accountant within 60 days of the
end of the term. The scope of the audit must include the Lessee's compliance with the
terms of the lease to disclose the gross sales at or from the demised premises, The
statement shall be prepared according to generally accepted accounting principles and
practices, showing in all reasonable detail the amount of gross sales during the lease
term. The Lessee also agrees to provide at the same time as the statement regarding
monthly gross sales pertinent depreciation and amortization schedules filed with the
Internal Revenue Service for the prior year.
(d) Any amount due from Lessee to Lessor under this lease which is
not paid when due shall bear interest at the maximum allowable legal rate from date due
until date paid, together with a late charge of Fifteen Dollars ($15.00) to cover Lessor's
extra expenses involved in collecting such delinquency; provided that such interest and
late charges shall be automatically reduced by such amount as necessary to cause such
charges to be in compliance with usury laws. The late charge must be paid within 30
days of the day the delinquent payment was due.
11. 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 in whole or in part without
the prior written consent of Lessor.
12. Lessee agrees that it will promptly pay all ad valorem real property taxes
and personal property taxes that may be assessed against the leased 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 leased premises, which are
required by law. It is further agreed by the Lessor that nothing herein shall obligate
Lessee to payor to reimburse Lessor for the payment of assessments for permanent
improvements or betterments, such as sidewalks, sewers, and streets that would
normally accrue to the demised premises.
13. 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.
14. Lessee will use biodegradable materials whenever feasible.
15. Lessee will provide all equipment and merchandise necessary for the
operation of the concession complex. In addition to the items in paragraph number 13,
the Lessee will pay all normal day-to-day repair and maintenance costs, being certain
that any material used in repair and maintenance will be equal to or better than that
originally provided, and all required insurance premiums.
16. Lessee will be responsible for picking up and disposing of all trash,
garbage, and other debris, whether or not initiated from the sales of the food complex,
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within 200 feet of the leased premises. Lessee is authorized to place trash cans in the
immediate area of the leased premises, said trash cans to be maintained by the Lessee.
17. (a) 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 leased 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 leased premises. All personal
property, including trade fixtures, in the leased 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. In any cases in which such indemnification violates any
applicable legal prohibition, the foregoing provisions concerning
indemnification shall not be construed to indemnify the City for damage
arising out of bodily injury to persons or for damage to property caused by
the sole active negligence of the City or its employees.
(b) Lessee shall at his own expense purchase or maintain during the
term of this agreement, the insurance coverages set out below:
(1) Propertv Insurance - (Real property including
improvements and/or additions).
a. Form - All Risk Coverage - Coverage is to be no
more restrictive than that afforded by the latest edition of
Insurance Services Office Forms CF00011, CF0420, and
CF1210.
b. Amount of Insurance - The full insurable value on
replacement cost basis.
c. 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.
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d. The City of Clearwater, as Lessor, shall be named
as an additional insured.
(2) Boiler and Machinery Insurance - If the buildings or
structures 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.
a. Repair and replacement.
b. Amount of insurance - $1,000,000 per accident.
c. The City of Clearwater, as Lessor, shall be named
as an additional insured.
(3) Comprehensive General Liabilitv - Coverage must be
afforded on a form no more restrictive than the latest
Comprehensive General Liability Policy filed by the Insurance
Service Offices and must include:
a. Minimum limits of $1,000,000 per occurrence
combined single limits for Bodily Injury Liability, Personal
Injury, and Property Damage Liability.
b. Premises and/or operations.
c. Independent contractors.
d. Products and/or completed operations.
e. 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
lease obtains a license to serve any type of alcoholic
beverages.
f. The City of Clearwater, as Lessor, shall be named
as an additional insured.
(4) Business Auto Policv - 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:
a. Minimum limits of $1,000,000 per occurrence
combined single limits for Bodily Injury Liability, Personal
Injury, and Property Damage Liability.
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b. Coverage on all vehicles (owned, hired, and non-
owned).
c. The City of Clearwater, as Lessor, shall be named
as an additional insured,
(5) Workers' Comoensation - 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.
(c) In addition, Lessee shall provide to the Lessor the following:
(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.
18. 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 may terminate this lease as of the date of such damage, or upon thirty (30)
days written notice to the Lessor. In the event of such termination the insurance
proceeds provided for under this lease shall be paid to 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.
19. Lessor, at its option, may exercise anyone of the remedies provided in
subsection e 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) 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 required more than fifteen (15) days to cure, there shall be no
Event of Default if Lessee has commenced correcting action within the
fifteen (15) day period and is diligently pursuing such action;
(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 pursuant to paragraph 10 above. An
error occurring by reason of computer malfunction, typing, or other similar
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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. Declare this lease 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 damages specified in paragraph 19( 1), and the loss of prospective
percentage rentals, suffered by Lessor because of Lessee's breach of
any covenant under this lease. Such prospective percentage rentals shall
be calculated on the same basis as in paragraph 19(e)1.
2. 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.
20. 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 or delayed. 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
improvement constructed by Lessee during the term of this lease on the demised
premises, shall become the property of the Lessor upon the expiration or termination of
this lease; 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.
21. Lessee shall, at his expense, at all times during the terms of this lease,
keep the leased premises and all improvements and facilities thereon in good order,
condition and repair. It is specifically understood by Lessee that Lessor has the right to
inspect the leased 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 lease, Lessee shall repair any and all damages to the premises
caused by the removal by Lessee of personal property.
22. Upon the termination or expiration of this lease for whatever cause, the
Lessee shall have 15 days to remove, at its own expense, its equipment, signs,
insignia, and other indicia of it tenancy or use.
23. The Lessee hereby covenants and agrees to promptly and continuously
comply with all regulations and orders of the Health Department and health officers of
the local, state, and national governments; and Lessee hereby covenants and agrees to
keep, operate, and maintain the concession in such a manner as to preclude any
warnings of major violations or notices to show cause being issued by any regulatory
agency authorized to inspect the premises under Florida Statute 509 as it presently
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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 fifteen (15) days of receiving any such reports.
24. 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.
25. Notices hereunder shall be given only by registered letter and shall,
unless otherwise expressly provided, be deemed given when the letter is 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 therefor by
proper notice hereunder. Notice to be provided to Lessor under this lease shall be
directed in care of the City Attorney's Office at the above-cited address.
26. 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 concession
complex 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
Manager. However, the Lessee must provide menu-type boards or boards to be placed
inside the food concession area so that they will be plainly visible to the public and list
the food and drink items for sale with their corresponding prices. Lessee also will place
a sign inside the food concession area so it will be plainly visible to the public which
states that the concession area and beach rentals are operated by Lessee and not
Lessor. The Lessor will be responsible for signs at the entrance of the restrooms
indicating appropriate gender. A sign denoting the price list of all beach equipment
rentals must be posted by the Lessee at the entrance to the rental concession area as
well as one other point from which the rental of beach equipment has heretofore been
authorized.
27, Restroom facilities must be kept clean and sanitary at all times and are
subject to inspection by Lessor. Lessee agrees to notify immediately 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 concession complex.
28. Lessee's exclusive right to rent beach equipment from the leased
premises does not deny members of the public the right to bring their own equipment
for personal use.
29. All sales shall be recorded on a tape cash register and the tapes shall be
maintained for review by Lessor's auditor. The Lessee shall maintain an adequate set
of books and records of its operation of the business of renting beach equipment and
the sale of food, beverages, and sundries, and his books and records must be provided
to the City Manager at his request.
30, In the event that the Lessor retains an attorney to enforce any of the
provisions of this lease, or renewals of or addenda to this lease, or to effect the
enforcement of any legal right of the Lessor against the Lessee, the Lessee agrees to
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pay the Lessor all costs of said enforcement reasonably incurred, including court costs
and reasonable attorneys' fees.
IN WITNESS WHEREOF, this lease is executed as of the date first above
written.
Cou ntersigned:
-i-ej/~k
LBfjan J. Aungst /
Mayor-
Approved as to form:
-fJJ-4.
Pamela K. Akin
City Attorney
in
CITY OF CLEARWATER, FLORIDA
By: ~1l. ~I!.
William B. Horne II
City Manager
Attest:
~b~~
Ke:;:J; 1~
Wade Hamilton
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