FIVE YEAR LEASE
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LEASE
THIS AGREEMENT is made and entered into on the date set forth below, by and between THE
CITY OF CLEARWATER, FLORIDA, with offices at 112 South Osceola Avenue, Clearwater, Florida,
hereinafter referred to as "Landlord", and PICKLES PLUS TOO, INC., a Florida corporation, with offices
at c/o Robert L. Shear, P.A., 2600 McCormick Drive, Suite 230, Clearwater, Florida 34619, hereinafter
referred to as "Lessee".
In consideration of the mutual covenants, terms and conditions contained herein, the parties
hereto agree as follows:
1. LEASED PREMISES. Landlord does hereby lease and permit Lessee to enter upon, use, and
occupy for the purposes and on the conditions herein set forth the following described property:
A retail sales area comprised of 2500 Sq. ft., more or less, located on the first floor of
the Harborview Center, Clearwater, Florida, and shown on Exhibit" A" (the "Leased
Premises"), attached hereto.
Lessee shall also be granted the right to use in common with others the parking area, means
of ingress and egress and other common areas. Lessee shall further be granted the right to utilize the
12' x 50' (approximate) "patio" or "cafe" area immediately adjacent to the westernmost wall of the
leased premises for service of patrons at no additional rent or charge see Exhibit" B". All expenses for
the creation and upkeep of the "cafe" or "patio" area shall be borne by Landlord. Lessee may, at his
option, furnish and/or decorate the "cafe" area as an item of expense under paragraph 5(C). Lessee
shall be responsible for any operating expenses of the cafe area. Lessee shall be responsible for the
cleanliness of the area.
2. TERM. The obligation to pay rent under this lease shall begin three (3) months following
the date that Landlord completes all of the improvements and alterations as set forth in Paragraph five
(5) of this lease and a Certificate of Occupancy is issued and all required approvals so that the
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restaurant can open for business (hereinafter referred to as the Commencement Date). In the event
that the obligation to pay rent shall begin at any date other than the first day of the month, Lessee's
first rental payment shall be prorated to the first day of the following month and all monthly payments
thereafter shall be in accordance with Paragraph three (3) hereafter. Lessee shall deposit with Landlord
the sum of $2,229.16 representing the first month's rent due of the initial term of this Lease, including
applicable sales tax.
The initial term of this Lease shall be for a period of five (5) years following the
commencement of the obligation to pay rent. Occupancy of the premises shall be no earlier than
September 1, 1995. Lessee shall have the option to renew this Lease for three (3) additional five-year
periods. Such renewal option may be exercised only upon written notice to Landlord at its municipal
offices at least ninety (90) days prior to the expiration of each term.
3. RENT.
Lessees rent shall be composed of the following:
FIXED MINIMUM MONTHLY RENTAL
PERCENTAGE RENTAL
DIRECT EXPENSES
TOTAL RENT
A. Lessee agrees to pay Landlord as a fixed minimum rental for the term of this
lease, at such place as Landlord may from time to time designate, the sum of Twenty-five Thousand
Dollars ($25,000.00 annually), being Ten Dollars ($10.00) per square foot of rented space, plus
applicable sales tax. The same shall be payable in monthly installments of $2,083.33, plus applicable
sales tax, on the first day of each month with a ten day grace period in accordance with paragraph two
(2) above. The base rent shall be increased annually by three percent (3%), plus sales tax on the
increase.
B. In addition to the fixed minimum monthly rental, Lessee agrees to pay to Landlord
an additional rental in an amount equal to six percent (6%) of the amount of Lessee's gross receipts
made during each year of the term of this lease, from the leased premises, in excess of $575,000.00
(break point). The term "gross receipts" as used in this lease is defined as the total amount of actual
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gross revenues received by Lessee, its assignees, subtenants, concessionaires, or licensees for all
merchandise sold or services performed in or from the leased premises, whether for cash or other
consideration or on credit; excluding discounts or allowances made to customers for which no payment
has been received by Lessee; the amount of any tax payable by reason of such sales or service under
any applicable tax law, which taxes are billed as a separate item by the Lessee to the purchaser; and,
any trade show revenues wherein a separate written agreement exists between Landlord and Lessee
as to commissions. This percentage rent shall be paid annually. The first payment shall be paid on or
before January 15, 1997, and another payment of percentage rent shall be paid on January 15 of each
year thereafter, except in the year of termination, in which the event the percentage rent shall be paid
within fifteen (15) days after termination.
C. Lessee shall pay to Landlord as additional rental common area maintenance direct
expenses exclusive of ad valorem taxes. Such Common Area Maintenance charges shall include all
insurance on the building, general maintenance and repairs, trash collection & disposal, painting,
cleaning and janitorial services, maintenance of parking lot, including sidewalks, curbs, sealing, striping
and repairing, building signage, planting and landscaping, lighting and all other utilities, fire protection
systems, storm drainage system and roof patching and administrative management fees.
Notwithstanding anything herein to the contrary, said direct expenses shall be $2.00 per square foot
of rented space and shall remain at $2.00 per square foot during the initial term of this lease. The
terms "additional rental" and "direct expenses" are used interchangeably herein. All base rental and
additional rental payments shall be paid on or before the first day of each month with a ten day grace
period.
D. OPTION PERIOD. Rental for any option periods shall be adjusted upward using the
applicable Department of Labor Consumer Price Index (CPI) for the preceding twelve months. The
formula shall be as follows:
Existing Base Rent x CPI = Base Rent For Next Option Period
The parties shall initiate negotiations of the terms for the option periods no later than 1 80 days
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prior to the end of the prior term.
E. FAILURE OF LESSEE TO OPEN. If the Lessee fails to take possession and to open
the leased premises for business fully fixtured, stocked and staffed within 90 days from the date of
commencement, then the Lessor shall have, in addition to any other remedies provided, the right to
collect the minimum rent plus additional rent at the rate of twenty-five dollars ($25.00) per day for
each and every day that the Lessee shall fail to begin business. This additional rent shall be in lieu of
the percentage rent that might have been earned during the period of the Lessee's failure to open.
Should Lessee fail to open for business within six months from the date of commencement he shall
be in default and subject to Landlord's Remedies Uoon Default set out in paragraph 24.
4. ACCOUNTING BY LESSEE.
A. Maintenance of books and records: Lessee agrees at all times to keep and maintain
accurate records of all business transactions and sales made in and from the leased premises and to
cause all sales to be registered upon cash registers.
B. Landlord's right to inspect books and records: Landlord shall have the right at all
reasonable times during business hours, through Landlord's duly authorized agent, attorney, or
accountant, to inspect and make copies of Lessee's records, accounts, and books in any way bearing
upon such sales, including copies of tax or information returns furnished any governmental authority,
both at the leased premises and at Lessee's central offices, or at any other office of Lessee at which
such books, records, and accounts may be kept. Landlord agrees that all such information shall be
held by its agents, attorneys, and accountants in strictest confidence.
C. Installation of cash registers: The Lessee agrees to install in the leased premises
a cash register or registers that have customarily been used at Pickles Plus and such registers shall be
equipped with a cumulative totaling device.
D. Performance by Lessee: Performance of the covenants set forth in this paragraph
shall be deemed a condition precedent to Lessee's right to continue in possession of the leased
premises.
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E. Right to Examine Books: The acceptance by the Lessor of payments of percentage
rent shall be without prejudice to the Lessor's right to examine Lessee's books and records at the
leased premises in order to verify the amount of annual gross receipts received by the Lessee in and
from the leased premises.
F. Audit: At its option, Lessor may cause, at any reasonable time, upon forty-eight
(48) hours prior written notice to Lessee, a complete audit to be made of Lessee's entire business
affairs and records relating to the leased premises for the period covered by any statement issued by
the Lessee. If such audit shall disclose a liability for rent to the extent of five (5%) percent or more
in excess of the rentals computed and paid by Lessee for the period, Lessee shall promptly pay to
Lessor the cost of the audit in addition to the deficiency, which deficiency shall be payable in any
event, and, in addition, Lessor, at Lessor's option, may terminate this Lease upon five (5) days notice
to Lessee of Lessor's election so to do. Any information obtained by the Lessor as a result of the audit
shall be held in strict confidence by Lessor.
5. CONSTRUCTION.
A. Landlord shall make all improvements and alterations to the Leased Premises in
accordance with plans and specifications prepared by Landlord's architect, approved by Lessee, and
upon City Commission approval, attached hereto as Exhibit "C". All improvements and alterations shall
be in accordance with the Americans with Disabilities Act ("ADA") and, as between Lessee and
Landlord, Lessee will be responsible for compliance with the ADA and the regulations thereunder with
respect to the Leased Premises. Lessee with the administrative assistance of Landlord shall also
procure and obtain all licenses and permits to operate the restaurant in the Leased Premises, except
as otherwise specifically provided in this Lease.
B. Prior to the construction phase of the leased premises, Landlord at its sole cost and
expense, shall cause the facility to be "built-out" and readied for Lessee's needs which prepared area
is referred to in the construction industry as a "shell". The "shell" shall consist of the four outer walls,
(primed), a cement floor, a finished ceiling, main electrical, plumbing heating and air conditioning to
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the space of sufficient size to maintain 780, a'nd completed bathrooms. All expenses for the work
outlined in this paragraph, including architect's and contractor's fees shall not be countable as an
expense of the construction as set forth in paragraph 5(D).
Supervision of the construction shall be the responsibility of the architect and with the
Lessee's representative, Joseph Benedettini or Ralph Natale in advisory capacity.
C. Landlord shall bear the cost of providing a completed "turnkey" facility to the extent
that the restaurant will be fully operational. Landlord's responsibilities shall include, but not be limited
to, installation of sink(s), counters, appliances, lighting fixtures, a sales transaction area and
appropriate sales transaction equipment, bathroom fixtures, coolers, freezers, cooling facilities, tables,
chairs, necessary painting or wallpapering, floor coverings, electrical, including lighting and lighting
fixtures, plumbing, hood fan and fire systems, serving and cooking utensils, storage containers, and
all other items not otherwise mentioned to effect a fully operational restaurant. Landlord's expense,
including architect and contractor fees, shall not exceed $100,000.00 to complete the project, for the
build-out phase under paragraph 5(D). Lessee shall retain right to approve the cost of construction,
including contractor's fees, and the selection of all equipment and furnishings.
D. Lessee shall reimburse Landlord for fifty percent (50%) of the cost of construction
of the facility (exclusive of readying the premises for construction [paragraph B above] during the initial
term of the lease and Lessee shall reimburse Landlord for the remaining fifty percent (50%) over the
term of the first option period, should the lessee decide to exercise the option to renew. The amount
of the reimbursed cost shall be determined upon completion of the facility. The payment for
reimbursement shall be made in monthly increments based on $4.00 per square foot of leased space.
Following total reimbursement, title to the equipment shall be in Lessee.
E. During the period that Lessee is fulfilling its reimbursement obligation, Landlord shall
retain title to all the personal property and furniture in the leased premises. At such time as Lessee
fulfills its reimbursement obligation, Landlord will provide a Bill of Sale conveying full right, title and
interest to all of the equipment and other personalty to Lessee. A schedule of equipment and
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furnishings, approved by Landlord and Lessee, shall, upon City Commission approval, be attached to
this Lease as Exhibit 0 DO . During the term of this Lease, Lessee may replace or add any such
equipment and furnishings necessary to maintain its facility and shall provide to Landlord written notice
of such substitution or addition. In the event of early termination of the lease through no fault of the
Lessee, Lessee shall be compensated for the depreciated value of the opaid-ino amount of the
reimbursed expense of the equipment.
6. EXPANSION. Subject to space availability and in the event that the parties shall agree to
expand the leased premises, it is hereby agreed that any expanded area shall be subject to the same
terms and conditions as set forth in this Lease agreement.
7. SIGNAGE. During the term of this Lease, Lessee shall have the right to install and maintain
professionally made interior and exterior fascia signs depicting the Pickles Plus Name attached to the
outside of the building subject to Landlord's Municipal Code requirements and location requirements.
All such signs shall, to the maximum extent possible, be identical to Pickles Plus standard signs, as
approved in Exhibit 0 EO. All such signage shall be removed by Lessee at Lessee's expense within
fifteen (15) days after termination of this Lease for any reason. The cost of the signage and
installation shall be in accordance with the provisions of Paragraph five (5) and shall become the
ownership of Lessee at the end of the initial five (5) year term.
8. USE OF PREMISES. Lessee shall use the Leased Premises for the maintenance and
operation of a delicatessen/restaurant to sell and deliver food and beverages which are similar to the
Pickles Plus menu attached as Exhibit "F". Lessee shall be allowed to serve beer and wine in
conjunction with its food service. All food items may be sold for on-site or off-site consumption.
Lessee shall not use the Leased Premises for any other purpose, nor shall Lessee use the Leased
Premises for any unlawful, offensive, hazardous, unsightly or other objectional purpose, and Lessee
agrees not to violate or permit any of its employees or invitees to violate any federal, state or local law,
regulation or ordinance.
Lessee shall remain open for business during the hours of 8:30 a.m. to 7:00 p.m., each
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day, Monday through Saturday, except for Christmas, Easter, New Year's, Thanksgiving and family
emergencies or deaths, and may also remain open during any additional hours that it determines is
appropriate, including Sunday operations and extended hours dependent upon Lessee's business needs
and to accommodate holiday traffic, trade show and other convention center activities. Landlord shall
provide Lessee with a calendar of events at least thirty (30) days in advance. Lessee's obligation shall
extend only to delicatessen items similar to the menu items (Exhibit "F") as provided by Lessee.
Lessee shall have the first right of refusal for food service at all Harborview Center first
floor activities.
9. UTILITIES AND OPERATIONAL COSTS. Lessee shall fully and promptly pay for all water,
gas, heat, light, power, telephone service, ad valorem taxes, and other public utilities of every kind
furnished to the interior premises throughout the term of this lease, and all other costs and expenses
of every kind whatsoever of or in connection with the use, operation, and maintenance of the premises
and all activities conducted on the premises. Landlord shall have no responsibility of any kind for any
of such costs and expenses. All such costs shall be either separately metered or easily ascertainable
as Lessee's expense. All expenses relative to the "patio area" which are associated with its lighting
and maintenance as an outdoor structural feature of the building shall be borne by Landlord. All
expenses relative to the "patio area" which are associated with the operation of the restaurant (water,
power, etc.) shall be borne by the Lessee.
10. QUIET ENJOYMENT. For so long.as Lessee is not in default under this Lease, Landlord
shall insure that Lessee shall have quiet and peaceable enjoyment of the Leased Premises and will not
be disturbed.
11. MAINTENANCE AND REPAIRS. All repairs and maintenance to keep the Leased Premises
in good condition (normal wear and tear excepted) and broom-clean shall be performed by Lessee at
its own cost and expense. Landlord shall be responsible for all repairs and maintenance of the building
structure, roof, plumbing and electric to the leased premises, paved and parking areas, HVAC and any
other expenses relating to common areas not within the control of the Lessee.
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12. ALTERATIONS AND REPAIRS. Upon completion of the Construction, Lessee shall take
good care of the premises and they shall not be altered, repaired, or changed without the written
consent of Landlord; and that, unless otherwise provided by written agreement, all alterations,
improvements, and changes that may be required shall be done either by or under the direction of
Landlord, but at the cost of Lessee, and all fixtures and permanent repairs shall be the property of
Landlord, and shall remain upon and be surrendered with the premises, excepting, however, that with
Landlord's consent, Lessee may, at its option and expense, when surrendering the premises, remove
all partitions, counters, railings, and the like, installed in the premises by Lessee; that all damage or
injury done to the premises by Lessee, or by any person who may be in or on the premises with the
consent of Lessee, shall be paid for by Lessee; and, that Lessee shall, at the termination of this lease,
surrender the premises to Landlord in as good condition and repair as reasonable and proper use of the
premises will permit.
13. BUILDING RULES AND REGULATIONS. Lessee agrees to adhere faithfully to all rules and
regulations adopted by Landlord for the safety, care and cleanliness of the premises.
14. PROMOTION. Should Landlord use any method to promote the Convention Center or
downtown Clearwater, it may, at it's option, incorporate appropriate notice of Lessee's restaurant at
no expense to Lessee. Such promotion may include flyers, billboards, newspapers, radio and
television.
15. VACATION OF STEIN MART. In the event that STEIN MART department store shall
vacate the Harborview Center location or discontinue business for any reason, the parties will make
appropriate lease adjustments to reflect the loss of traffic generated by said store. Further, Landlord
shall have eight (8) months from the date of the termination of Stein Mart's operation to replace a
tenant of the same retail impact of Stein Mart in the entire vacated area or Lessee may terminate its
lease and be fully released from any and all lease financial responsibilities. During the vacation period,
Landlord shall exert its best efforts to retain a replacement tenant notwithstanding that it may be
receiving rental payments from STEIN MART. It is the intention of the parties that the space is to be
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occupied by a quality tenant to engender the traffic to benefit Lessee's business.
16. LICENSES AND PERMITS. Landlord will use its best efforts in assisting Lessee in
obtaining any license necessary for its operation. All impact fees shall be at the expenses of Landlord.
17. HOLDING OVER. Any holdover by Lessee after the termination or expiration of this Lease
shall not, in the absence of a written agreement to the contrary, create a tenancy for a term in excess
of month-to-month. This provision shall not give Lessee any right to holdover. Any holdover shall be
subject to all the other terms and conditions of this Lease and to the Florida Landlord and Tenant
Statute, but under no circumstances shall the rental exceed the monthly rent existing at the end of the
term of the lease.
18. RELATIONSHIP OF PARTIES. This Lease does not and shall not constitute a "franchise"
as that term or any similar term is or may be used in any state or federal law, rule or regulation
affecting the rights of the parties to terminate this Lease or for any other purpose.
Lessee acknowledges that it is an independent business entity and Landlord shall
exercise no control over the day-to-day business operations of Lessee at the Leased Premises. Lessee
is and shall at all times be an independent business entity free to select its customers, its employees,
set its own selling prices and terms of sale, control its operations and generally conduct business as
it determines.
19. DAMAGE TO OR DESTRUCTION OF PREMISES. In the event of a partial destruction of
the premises, from any cause covered by Landlord's standard fire and extended coverage insurance,
Landlord shall immediately repair such destruction within 90 days and such partial destruction to the
premises shall in no way annul or void this lease, but Lessee shall be entitled to a proportionate
reduction of rent while such repairs are being made. If such partial destruction was caused by any risk
not covered by Landlord's insurance or if the cost of repair exceeds the insurance proceeds payable,
Landlord may, at its option make such repairs provided the repairs can be made within ninety (90) days
and the lease shall remain in full force and effect and Lessee shall be entitled to a proportionate
reduction in rent while such repairs are being made. If the Landlord does not elect to make repairs he
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is not obligated to make, or if such repairs cannot be made within ninety (90) days, or if such repairs
cannot be made under law, this Lease may be terminated at the option of either party. In the event
the building is destroyed to the extent of not less than thirty-three and one-third percent (33 1/3%)
of the replacement cost of it, Landlord may elect to terminate this lease, whether the premises are
injured or not and without liability to Lessee. A total destruction of the premises, or of the building,
shall terminate this lease. In the event of any dispute between Landlord and Lessee relative to the
provisions of this Section, they shall submit their dispute to arbitration in accordance with the rules
of the American Arbitration Association, and the arbitration shall be final and binding upon both
Landlord and lessee, and the cost of such arbitration shall be borne equally between them.
20. INSURANCE/INDEMNIFICATION. lessee shall maintain in full force and effect during the
entire term of the Lease, at lessee's sole cost and expense, and require any sublessee to maintain at
no cost to landlord, the insurance coverage set forth below with companies reasonably satisfactory
to landlord with full policy limits applying but not less than as required herein. Such insurance shall
name landlord an additional insured. A certificate evidencing the required coverages shall be delivered
to landlord upon request.
(a) The insurance coverage and certificate of insurance provided to landlord shall be
applicable, without regard to the indemnity provisions contained in this lease, to the extent of any
claim, loss or liability within the scope of the following required insurance, except that lessee shall not
be responsible for insurance coverage to the cafe area and any of these items covered in paragraph
11 hereinabove.
(1) Worker's compensation insurance as required by laws and regulations applicable
to and covering employees engaged in the conduct of business under this lease;
(2) Business automobile liability insurance for all operations including owned, non-
owned and hired vehicles with limits of liability of not less than: bodily injury equal to $100,000 each
person, $300,000 each accident; and property damage of $100,000; or a combined single limit of
$300,000 for bodily injury and property damage. If no vehicles are used for the business then this
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insurance shall be waived; and
(3) Commercial general liability or comprehensive general liability insurance with limits
of not less than $500,000.00 each occurrence and $1,000,000 general aggregate.
Notwithstanding the indemnity provisions contained in this Lease, the insurance coverage maintained
by Lessee or sublessee, and the protection afforded Landlord as provided herein, shall protect Landlord,
its partners, directors, managers, officers, employees, and against all damage, loss, liability or expense
whatsoever from or attributable to bodily injury or death, fire, theft, property damage or any other loss,
expense or liability.
(b) Lessee shall defend, indemnify, reimburse and hold harmless Landlord, its partners,
officers, directors, managers, employees and agents, from and against any claim, demand, actions or
cause of action, damages, costs, expenses, losses or liabilities (including reasonable attorney's fees
and court costs) resulting from or arising out of (i) any failure by Lessee to perform or comply with any
provision contained in this Lease and (ii) any personal injury, death, or property damage caused by
Lessee or its officers, directors, employees or agents except to the extent caused by negligence or
intentional fault of Landlord. The indemnity provisions contained herein shall not restrict in any manner
the scope of insurance protection required to be maintained and afforded to Landlord in this Lease.
(c) The obligations under this Paragraph 20 shall survive the expiration or termination
of this Lease.
21. CONDEMNATION. If the whole or any part of the Leased Premises shall be taken by any
lawful authority under the power of eminent domain, then this Lease shall thereupon terminate, and
Lessee shall be liable for rent only up to the date of such taking.
In the event of the partial or complete taking of the improvements, Lessee shall be
entitled to participate in any and all awards for such taking to the extent that any such award includes
the loss, if any, sustained by Lessee as a result of the termination of this Lease for loss of business,
fixtures, moving expenses, and leaseholds.
22. NOTICES. All notices, consents and other communications under this Agreement shall
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be in writing and shall be deemed to have been duly given when delivered by certified mail return
receipt requested or by other such means as the parties may agree from time to time. All such notices
will be directed to the parties as follows:
(a)
If to Landlord:
City of Clearwater, Florida
112 Osceola Avenue
Clearwater, Florida
(b)
If to Lessee:
Pickles Plus Too, Inc.
c/o Robert L. Shear, P. A.
2600 McCormick Drive
Suite 230
Clearwater, FL 34619
23. TAXES. Lessee shall be responsible for payment of all real property taxes and
assessments (including special assessments) which may be levied or assessed by any lawful taxing
authority against the Leased Premises including impact fees, and any sales or tangible personal
property tax and same shall be payable 1112 of the total sum monthly with the fixed rental.
24. LANDLORD'S REMEDIES UPON DEFAULT. Landlord shall have the following remedies if
tenant commits a default. These remedies are not exclusive but are in addition to any remedies now
or later allowed by law. Default shall be defined as Lessee's failure to perform any covenant of this
lease following five days notice by Landlord to Lessee of its right to cure any monetary covenant and
fifteen days notice by Landlord to Lessee of its right to cure any non-monetary covenant. All notices
shall be in writing, delivered to Lessee at the leased premises.
A. Landlord shall have the right either to terminate Lessee's right to possession of the
premises and terminate this lease or to have the lease continue in full force and effect with Lessee at
all times having the right to possession of the premises. Should landlord elect to terminate Lessee's
right to possession of the premises and terminate this lease, then Landlord shall have the right of entry
and may remove all persons and property from the premises in accordance with the Florida Landlord
and Tenant Statute 83 et seq. Such property so removed shall be stored in a public warehouse or
elsewhere at the cost and for the account of Lessee. Upon such termination, Landlord, in addition to
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any other rights and remedies including rights and remedies under Florida Statute 83 et seq., or any
amendment to it, shall be entitled to recover from Lessee the worth, at the time of award, of the
amount of the unpaid rent for the balance of the term after the time of award. The amount referred
to in this action shall be computed by discounting such amount at the discount rate of Barnett Banks
of Pinellas at the time of the award plus one percent. Prior to such award, Landlord may relet the
premises for the purpose of mitigating damages suffered by Landlord because of Lessee's failure to
perform Lessee's obligations under this lease. '
B. Any proof of Lessee of the amount of rent loss that could be reasonably avoided
shall be made in the following manner: Landlord and Lessee shall each select a licensed real estate
broker in the business of renting property of the same type and use as the premises and in the same
geographic vicinity; the two real estate brokers shall select a third licensed real estate broker; and the
three licenses real estate brokers selected shall determine the amount of rent loss that could be
reasonably avoided for the balance of the term of this lease after the time of award. The decision of
the majority of such licensed real estate brokers shall be final and binding upon the parties to this
agreement.
C. As used in this lease, the term "time of award" shall mean either the date upon
which tenant pays to landlord the amount recoverable by landlord as set forth in this lease or the date
of entry of any determination, order, or judgment of any court or other legally constituted body, or of
any arbitrators, determining the amount recoverable, whichever occurs first
D. Should Landlord, following any breach or default of this lease by Lessee, elect to
keep this lease in full force and effect, for so long as Landlord does not terminate Lessee's right to
possession of the premises, notwithstanding the fact that Lessee may have abandoned the premises,
then Landlord, in addition to all other rights and remedies which Landlord may have at law or in equity,
shall have the right to enforce all of Landlord's rights and remedies under this lease. Notwithstanding
any such election to have this Lease remain in full force and effect, Landlord may at any time after that
elect to terminate Lessee's right to possession of the premises and terminate this lease for any
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previous breach or default which remains uncured, or for any subsequent breach or default. For the
purposes of landlord's right to continue this lease in effect upon lessee's breach or default, act of
maintenance or preservation or efforts of landlord to relet the property, or the appointment of a
receiver on initiative of landlord to protect its interest under this lease do not constitute a termination
of lessee's right to possession.
E. In the event landlord elects, upon breach or default of this lease by lessee, to keep
this lease in full force and effect, landlord may, as attorney in fact of lessee, from time to time sublet
the premises or any part of it for such term and at such rent and upon such other terms as landlord
in landlord's sole discretion may deem advisable with the right to make alterations, restoration and
maintenance to the premises at landlord's expense. lessee shall be immediately liable to pay to
landlord the amount by which the rent under this lease for the period of subletting, to the extent such
period does not exceed the term of this lease, exceeds the amount agreed to be paid as rent for the
premises for such period of such subletting. If lessee has been credited with any rent to be received
by such subletting and such rent shall not be promptly paid to landlord by the subtenant, or if such
rent received from such subletting during any month be less than that to be paid during that month
by lessee under this lease, lessee shall pay any such deficiency to landlord. Such deficiency shall
be calculated and paid monthly. No taking possession of the premises by landlord, as attorney-in-fact
for lessee, shall be construed as an election on its part to terminate this lease unless a written notice
of such intention is given to lessee. Notwithstanding any such subletting without termination,
landlord may at any time after that elect to terminate this lease for such previous breach. At
landlord's option and application, a receiver for lessee shall be appointed to take possession of the
premises and to exercise landlord's right to sublet the premises as attorney-in-fact for lessee and to
apply any rent collected from the premises as provided in this lease.
F. Nothing in this section affects the right of the landlord to indemnification for liability
arising prior to the termination of the lease for personal injuries or property damage where the lease
provides for such indemnification.
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G. If tenant shall be in default in the performance of any covenant to be performed by
it under this lease, then, after notice and without waiving or releasing tenant from the performance of
such covenant, and in exercising any such right pay necessary and incidental costs and expenses in
connection with it. All sums paid by Landlord in this manner, together with interest on it at the
maximum rate of interest per year allowed by law, shall be deemed additional rental and shall be
payable to Landlord on the next rent-paying day.
H. Rent not paid when due shall bear interest at the maximum rate of interest per year
allowed by law from the date due until paid.
I. Notwithstanding any of Landlord's remedies herein, it shall exercise due diligence
and best efforts to mitigate Lessee's damages and attempt to locate and relet the premises to a quality
representative tenant at similar terms and conditions contained in this lease.
25. LANDLORD'S RIGHT OF ACCESS. Lessee shall permit Landlord and its agents to enter
into and upon the Leased Premises at all reasonable times for the purpose of inspecting the same or
for the purpose of maintaining or making repairs or alterations after notice, except in case of
emergency. Landlord's entry shall not unreasonably interfere with the lawful operations of Lessee's
business.
26. ASSIGNMENT. Lessee, its successors and/or assigns may, upon receiving orior written
aooroval from landlord, assign this Lease and/or sublet the Leased Premises, in whole or in part,
wherein there will be delivered to Landlord a duplicate original of the duly executed instrument of
assignment and/or sublease, as the case may be, and in the event of an assignment of the Lease, by
the terms of any such assignment, the assignee shall assume and undertake the performance of all of
the terms of the Lease;
(a) except with agreement between the parties, no assignment or sublease shall in any
way relieve, modify or extinguish the liability of any such assignor or sublessor, as the case may be,
or any of their predecessors in interest; and
(b) no fee or any other consideration shall be payable to Landlord in connection with
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the assignment of the Lease or the subletting of the Leased Premises.
27. WAIVERS. One or more waiver of any covenant, condition, right or agreement herein
contained shall not be construed as a waiver of a further breach of the same covenant, condition, right
or agreement, and the consent or approval by Landlord to or of any act by Lessee requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary Landlord's consent or
approval to any subsequent similar act by Lessee.
28. APPROVAL AND EXECUTION BY LANDLORD. This Lease shall not be binding on Landlord
until approved and signed on its behalf by a duly authorized officer or representative. Commencement
or performance hereunder prior to such approval and signing shall in no way be construed as a waiver
by Landlord of the foregoing requirements.
29. NON-COMPETITION. Landlord agrees that it shall not under any circumstances lease any
space in the leased premises to any business in competition with Lessee nor permit any competing
business to operate a similar business to Lessee's. Lessee's business is defined as a "sandwich type
shop" and is differentiated in the trade from a dining restaurant. Lessee may find it difficult to prove
economic losses for failure of Landlord to comply with this provision. Consequently, Lessee may seek
injunctive relief as an appropriate remedy.
30. LIENS. To the extent of the limitations set forth in paragraph 5 herein, Landlord shall pay
and settle all expenses and liabilities arising' out of or in any way connected with any and all
construction, repairs, or alterations performed on the Leased Premises by or on behalf of Lessee, and
all liens of mechanics and materialmen, and all liens of a similar character, arising out of or growing
out of Lessee's construction, repair and alteration of the Leased Premises.
31. LAW. This Lease and the performance hereunder shall be governed by the laws of the
State of Florida.
32. HEADINGS. This instrument's paragraph headings are for quick reference and convenience
only and do not alter, amend or otherwise affect the terms, conditions, and agreements set out herein.
33. ATTORNEY FEES. In the event of any judicial proceeding in connection with this Lease,
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the prevailing party shall be entitled to recover costs and reasonable attorney's fees from the other
party as fixed by the Court.
34. FORCE MAJEURE. If either party fails to perform any of its obligations under this Lease,
except for payment of rent, as a result of Force Majeure, such party shall not be liable for loss or
damage for the failure, and the other party shall not be released from any of its obligations under this
Lease. If either party is delayed or prevented from performing any of its obligations as a result of Force
Majeure, except for payment of rent, the period of delay or prevention shall be added to the time herein
provided for the performance of any such obligation.
"Force Majeure" shall mean any period of delay which arises from or through acts of
God; strikes, lockouts, or labor difficulty; explosion, sabotage, accident, riot or civil commotion; act
of war; fire or other casualty; delays caused by the other party; and causes beyond the reasonable
control of a party.
35. BROKERS. The parties hereto represent and warrant to one another that they have not
dealt with any broker or finder in respect to the transaction contemplated hereby. Each party agrees
to indemnify and hold the other harmless from and against any and all liability that any other party may
sustain or incur by reason of its breach of the foregoing representation and warranty. The parties are
aware that Joseph Benedettini is a real estate broker so licensed in the State of Florida.
36. CONFIDENTIALITY. Each party agrees to hold in confidence any proprietary information
or trade secrets acquired from the other party during the term of this Lease.
37. PROTECTION OF TRADEMARKS. Landlord and Lessee agree that anything to the contrary
notwithstanding in the Lease, neither party conveys to the other the right to use its trademarks or trade
names.
38. LANDLORD'S WAIVER. Landlord hereby agrees to waive any rights to equipment
purchased or leased by Lessee for use in operating the Pickles Plus restaurant, subject to paragraph
5.
39. COOPERATION. Landlord agrees to execute and deliver upon the request of Lessee any
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applications, in form and content reasonably acceptable to Landlord, required by any governmental
authority having jurisdiction thereunder to enable Lessee to make alterations or installations in and to
the Leased Premises and to erect and maintain any signs in, or about the Leased Premises as permitted
herein, and any documents, in form and content reasonably acceptable to Landlord, to acknowledge
ownership of any equipment lessor and/or any primary lien of any equipment financier, provided that
any fees, charges and expenses required in connection therewith be borne solely by Lessee.
Wherever by the terms of this paragraph it is specifically provided that Landlord's
consent or approval be required or otherwise requested by Lessee, Landlord covenants that it will not
unreasonably withhold or delay any such consent or approval.
40. INTERFERENCE. Notwithstanding the provisions of any part of this Lease, Landlord shall
not (a) interfere with the visibility, ingress or egress of the Leased Premises, (b) disrupt Tenant's
business, (c) reduce the usable area of the Leased Premises, (d) reduce the number of parking spaces
that currently exist at the Leased Premises, or (e) expose any pipes, conduits, utility lines or wires in
the Leased Premises.
43. HAZARDOUS MATERIAL. Subject to the remaining provisions of this paragraph, Lessee
shall be entitled to use and store only those Hazardous Materials (defined below), that are necessary
for Lessee's business, provided that such usage and storage is in full compliance with all applicable
local, state and federal statutes, orders, ordinances, rules and regulations (as interpreted by judicial and
administrative decisions). Provided that there is no unreasonable interference or interruption of
Lessee's operation or use of the premises, Lessor shall have the right at all times during the term of
this Lease to (i) inspect the Premises, (ii) conduct tests and investigations to determine whether Lessee
is in compliance with the provisions of this Paragraph, and (iii) request lists of all Hazardous materials
used and stored or located on the Premises. The cost of all inspections, tests and investigations shall
be borne by Lessor unless the results indicate that Lessee is not in compliance with the provisions of
this Paragraph, in which event the cost shall be borne by Lessee. Lessee shall give to Lessor
immediate verbal and follow-up written notice of any spills, releases or discharges of Hazardous
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Materials on the Premises, or in any common area or parking lots (if not considered part of the
Premises), caused by the acts of or omissions of Lessee, or its agents, employees, representatives,
invitees, licensees, subtenants, customers or contractors. Lessee covenants to investigate, clean up
and otherwise remedy any spill, release or discharge of Hazardous Materials caused by the acts or
omissions of Lessee, or its agents, employees, representatives, invitees, licensees, subtenants,
customers or contractors at Lessee's cost and expense; such investigations, clean up and remediation
to be performed after Lessee has obtained Lessor's written consent, which shall not be unreasonable
withheld; provided, however, that Lessee shall be entitled to respond immediately to any emergency
without first obtaining Lessor's written consent. Lessee shall indemnify, defend and hold Lessor
harmless from and against any and all claims, judgments, damages, penalties, fines, liabilities, losses,
suits, administrative proceedings and costs (including, but not limited to, attorneys' and consultants
fees) arising from or related to the use, presence, transportation, storage, disposal, spill, release or
discharge of Hazardous materials on or about the premises caused by the acts or omissions of Lessee,
its agents, employees, representatives, invitees, licensees, subtenants, customers or contractors.
Lessee shall not be entitled to install any tanks under, on or about the premises for the storage of
Hazardous materials without the express written consent of Lessor, which may be given or withheld
in Lessor's sold express written discretion. As used herein, the term "Hazardous Materials" shall mean
(i) any hazardous or toxic wastes, materials or substances, and other pollutants or contaminates, which
are or become regulated by all applicable local, state and federal laws, including but not limited to, 42
U.S.C. 6901 et sea, 42 U.S.C. 9601 ~, any Rule or Regulation of the Florida Department of
Environmental Regulation, and Florida Resource Recovery and Management Act, Chapter 403 of Florida
Statutes; (ii) petroleum; (iii) asbestos; (iv) polychlorinated biphenyl is; and (v) radioactive materials. The
provisions of this Paragraph shall survive the termination of this Lease.
42. ENTIRETY OF AGREEMENT. This Lease contains the entire agreement between the parties
relating to the subject matter hereof and may not be modified unless done so in a writing signed by
all the parties hereto.
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below the signature lines.
IN WITNESS WHEREOF, the undersigned have executed this instrument on the date set forth
Countersigned:
Rita Garvey
Mayor-Commissioner
Approved as to form and
legal sufficiency:
(Lie t
Pamela K. Akin
City Attorney
Attest:
Vudda. W
DATE:
CITY OF CLEARWATER, FLORIDA
By:
~~ f&lY
Izabeth M. 'ptula
City Manager
Attest:
~~ [. )j.- 'G.,,;"~
Cynt i E. Goudeau
City rk
PICKLES PLUS TOO, INC.
lis: prem .
By:~ A)~
a pI Natale
Its: Vice President, Secretary
Treasurer
21
LEASED
PREMISES
"CAFE" OR
"PATIO" AREA
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