FIVE YEAR LEASE (2)
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LEASE AGREEMENT
THIS LEASE AGREEMENT~ made and entered into this /l?~
day of
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~ 1987~ by and between the CITY OF CLEARWATER~ FLORIDA~ a
municipal corporation~ hereinafter referred to as "Lessor~" and JO ANN HOMSHER~
hereinafter referred to as "Lessee."
WIT N E SSE 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 a period of sixty (60) months~
beginning on the 1st day of October~ 1987~ and ending on the 30th day of
September~ 1992. The Lessor retains the right to terminate this lease for any
municipal need consistent with the Lessor's charter on 60 days notice with an
option for comparable space; 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. Lessor extends a first option to Lessee to
renew this lease agreement~ for an additional five (5) year lease period~ upon
the same terms and conditions~ subject to Lessor and Lessee negotiating in good
faith a new rental rate schedule within the last sixty (60) days of this said
lease term~ and subject to Lessee not being in default under the terms and
provisions of this said lease.
2. The Lessee hereby covenants and agrees to pay rental thereof as
follows:
a. To pay the total sum of $24~000.00 for the sixty (60)
month term of this lease~ which shall be paid in equal monthly
payments of $400.00. Each monthly payment shall be due and
payable on the first day of the month~ and shall be delinquent
if not paid on or before the tenth day of each month. In
addition to the monthly rental~ the Lessee shall~ at the end
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of each month. pay an additional amount equal ~o eight
(8) percent of monthly gross sales exceeding $9.000.00
throughout the term of this lease. 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 the 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 by the 10th day of the month becomes delinquent and shall
bear interest at the rate of fourteen (14%) percent per annum
from date due until paid. plus a late charge of Ten Dollars
($10.00) to cover Lessor's expenses in collecting such
delinquency.
c. In addition to the first month's rent of $400.00 which is due
and payable on the first day of the lease. the Lessee shall pay
$400.00 in advance as a deposit to secure the faithful
performance of the Lessee's obligations hereunder. The Lessor
may deduct from the deposit any amount which might become due
from the Lessee to the Lessor for damage to the premises or
for any reason or cause whatsoever except rent. At the end
of the term of this lease. the deposit amount or the balance
thereof. if any, shall be credited to Lessee's last monthly
rental payment.
d. All sales shall be recorded on a tape cash register and the
tapes shall be maintained for review by the City's Auditor.
The Lessee shall maintain an adequate set of books and
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records on his/her operation of the business and his/her
books and records shall be made available to Lessor at any
time a request is made for them by the City Manager or his
agents.
3. The demised premises shall be used only for the purpose of conducting
therein the sale of live and frozen bait and ice, sale, rental and repair of
sportfishing equipment including but not limited to heavy rods and reels,
specialized bait rigs, deep sea sportfishing equipment and other similar
equipment. Lessee is authorized to rent boats in the slips located on the
North side of the bait house pier. These rental boats are to be used strictly
for fishing, no other use is authorized. The Lessee is also authorized to
conduct charter activities subject to and limited by docking space to be
allocated and assigned by the Harbormaster. Charter activities shall be
limited to the inland water of Clearwater Harbor and Clearwater Bay unless
specifically exempted from such restriction by the Harbormaster. The sale of
other associated commodities such as nautical gifts and associated sundries
may be permitted; however, any use of the premises beyond the sale of bait and
ice and the sportfishing equipment outlined herein will require the prior
written approval of Lessor, which approval shall not be unreasonably withheld.
a. The use of the premises to provide information, reservation
or booking service for other commercial sports fishing
enterprise operated from the Marina is expressly
prohibited. Lessee may, at her option, provide
facilities for the mooring of customers' boats
on the North and East sides of the above dock. No
mooring facilities may be provided on the South side
of such dock.
b. No boat of any kind except Lessee's charter, rental fishing
boats and non-passenger-carrying bait boats may be docked
overnight without the prior written consent of Lessor.
4. The Lessee hereby covenants and agrees to make no unlawful, improper,
or offensive use of the leased premises. Lessee further covenants and agrees
not to assign, mortgage, pledge, hypothecate or sublet this lease or any of
its rights herein in whole or in part without the prior written consent of
Lessor, any consents will not be unreasonably withheld by Lessor. The consent
of Lessor to any assignment, mortgaging, pledging, hypothecating or subletting
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shall not constitute a waiver of the necessity for such consent to any
subsequent assignment, mortgage, pledging, hypothecating or subletting. This
paragraph shall be construed to include a prohibition against any assignment
or subletting by operation of law. If this lease is assigned, or if the
premises or any part thereof are sublet or occupied by anybody other than the
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 Lessor is a corporation, and if at any time
during the term of the lease, any part or all of the corporate shares of
Lessee shall be transferred by sale, assignment, bequest, inheritance,
operation of law or other disposition so as to result in a change in the
present effective voting control of Lessee by the person, persons or entity
which presently is the ultimate owner of a majority of such corporate shares
on the date of this lease, Lessee shall promptly notify Lessor in writing of
such change. If the new owner is a private or public corporation, Lessor
shall promptly advise Lessee if it has any objections thereto and the reasons
therefor. Lessee shall have thirty (30) days from receipt of said objections
within which to try to convince Lessor of the unreasonableness of its
objections, failing which Lessor may terminate this lease any time after such
change in control by giving Lessee ninety (90) days prior written notice of
such termination, such notice to be provided within thirty (30) days following
the time period provided to Lessee. Lessee shall not permit any business to
be operated in or from the premises by any concessionaire or licensee.
5. Lessee agrees that it will promptly pay all ad valorem real property
taxes and personal property taxes that may be assessed and filed against the
demised property during the term of this lease. Lessee further agrees that it
will pay any state sales tax due on the rental payment made by the Lessee to
the lessor and that it will pay all other taxes and fees, including, but not
limited to, occupational license, beverage license, and permits relating to
the operation of the business conducted on the demised premises, which are
required by law. Nothing herein shall obligate Lessee to payor 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.
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6. The Lessee hereby covenants and agrees to pay all bills for
electrical service to the premises when due, which service shall be provided
either at actual City cost or, if the premises are separately metered by
Florida Power Corporation, in accordance with the company's rates and billing.
At no expense to the Lessee, the Lessor agrees to furnish a refuse disposal
location and a refuse disposal container located outside the demised premises
for the use of the Lessee.
7. The Lessee further covenants and agrees to operate the business
authorized to be conducted on the premises during the entire year of each year
during the term of this lease, except for such periods of time when the
premises may be closed for vacations, not to exceed two (2) consecutive weeks,
or more than six (6) weeks in any calendar year and any period of time
involved in natural disasters, including governmental orders or requirements
such as evacuations for hurricane preparation, and any time necessary to
repair or replace any damage caused to the demised premises by a natural
disaster.
8. The Lesser agrees to protect the Lessor against all losses arising
out of claims in connection with this Lease Agreement including, without
limiting the generality of the foregoing, any and all such claims relating to
personal injury, death, damage to property, defects in materials or
workmanship, actual or alleged infringement of any patent, trademark,
copyright (or application for any thereof) or of any other tangible or
intangible personal or property right, or any actual or alleged violation of
any applicable statute, ordinance, administrative order, rule or regulation,
or decree of any court.
The Lessee further agrees to investigate, handle,
respond to, and defend any such claims, at Lessee's sole expense and agrees to
bear all other costs and expenses related thereto.
This paragraph shall not be construed to indemnify the Lessor for damage
arising out of bodily injury to persons or damage to property caused by or
resulting from the negligence of the Lessor or its employees.
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 premises are closed
as a result of a casualty, and the same are subsequently rebuilt, the rents
shall abate during such time period as aforesaid, and the term of this lease
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shall be correspondingly extended for the time the premises are not tenantable
as a result of said casualty loss and repair.
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.
10. Except as otherwise provided herein, upon the happening of anyone or
more of the following events ("Events of Default"):
a. Lessee's default in the payment of any rental or other sums due
for a period of ten (10) 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 of Default if Lessee has
commenced curative action within the fifteen (15) day period and
diligently prosecutes such action to completion;
c. There shall be filed by or against Lessee in any court pursuant
to any statute either of the United States or of any state, a
petition in bankruptcy or insolvency or for reorganization or
arrangement, or for the appointment of a receiver or trustee
of all or a portion of Lessee's property, or if Lessee makes an
assignment for the benefit of creditors or if there is an
assignment by operation of law, or if Lessee makes application
to Lessee's creditors to settle or compound or extend the time
for payment of Lessee's obligations, or if execution, seizure or
attachment shall be levied upon any of Lessee's property or the
premises are taken or occupied or attempted to be taken or
occupied by someone other than Lessee; however, in the event
of execution, seizure or attachment, Lessee may post a bond
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satisfactory to Lessor which bond shall stay the default
resulting from any execution, levy, seizure or attachment for a
period of 120 days. Failure to remove the levy, seizure or
attachment within the 120 day period shall constitute an Event of
Default, and the bond posted shall be forfeited; or
d. Lessee's vacating or abandoning the premises; then Lessor, at
its option, may exercise anyone or more of the following
remedies which shall be cumulative:
(1) Terminate Lessee's right to possession under this lease and
re-enter and take possession of the premises, and relet or
attempt to relet the premises on behalf of Lessee; however,
such reletting or attempt to relet shall only involve a
prospective tenant capable of providing comparable or better
type services, at such rent and under such terms and conditions
as Lessor may deem best under the circumstances for the purpose
of reducing Lessee's liability, and Lessor shall not be deemed to
have thereby accepted a surrender of the premises, and Lessee
shall remain liable for all rents and 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 be delivering written notice to Lessee,
elect to exercise its option under the following subparagraph
to accept a surrender of the premises, terminate and cancel
this lease, and retake possession and occupancy of the premises
on behalf of Lessor.
(2) Declare this lease to be terminated, whereupon the term hereby
granted and all rights, title and interest of Lessee in the
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premises shall end and Lessor may re-enter upon and take
possession of the premises. Such termination shall be without
prejudice to Lessor's right to collect from Lessee any rental
or additional rental which has accrued prior to such termination
together with all damages, including, but not limited to, the
damages specified in subparagraph (1) of the 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. The Lessee hereby agrees to perform, as a condition of this lease,
certain improvements to the exterior of the demised premises. These
improvements shall include replacing or repair of roof shingles as needed.
These improvements shall be performed at the expense of the Lessee within 45
days of execution of this lease.
a. The Lessee hereby covenants and agrees to keep and maintain the
premises and fixtures located therein in good condition and repair during the
term of this lease 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 of the premises occasioned by
said removal shall be repaired at the Lessee's expense. Lessee's obligations
of repair hereunder shall not extend to the pilings or the dock structure,
unless damage is caused to said pilings or dock structure as a result of the
negligence or fault of lessee.
12. 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
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against the leased property; and
b. For the faithful performance of the covenants contained in
paragraph 11 above;
13. In the event of the acquisition of this property or any portion
thereof by exercise of proper authority, by any governmental agency other than
Lessor, whether by eminent domain or otherwise, it is understood and agreed
that notification of the institution of such action shall be promptly given
Lessee, so that Lessee may intervene in such action as a party. The award of
compensation shall be apportioned by the parties in accordance with the
Florida law of eminent domain. Rents shall abate in proportion to the extent
of interference with or discontinuance of Lessee's business; provided,
however, in such event the Lessor may, at its sole discretion, terminate this
lease under the provisions of paragraph 1 above by making the payment to the
Lessee as provided therein.
14. 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.
15. 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
The Bait House, Clearwater Municipal Marina, 25 Causeway Boulevard,
Clearwater, FL 34630, 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.
16. This lease agreement constitutes the entire contract between Lessor
and Lessee concerning the leasing of the premises and consideration thereof.
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IN WITNESS WHEREOF, the parties hereto have set their hands and
seals this /6 ~ day of ~~'
Approved as to form
and correctness:
City
Witnesses
(&, r:.
7~1~/ jf~~
, 1987.
CITY O~,CLEARWATER, FLORIDA (Lessor)
Attest: ~~p_ L:'-=~ih~
Cft Cle~'_, -:." --'_
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JO ANN HOMSHER
d/b/a Bait House (Lessee)
By
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EXHIBIT "A"
LEGAL DESCRIPTION
Slip No. 153, Including the 70' by 14' dock abutting
the North side of Slip No. 152, at the Clearwater Marina
located on Lot No. 10 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
Lessee shall procure and maintain for the duration of the contract insurance
against claims for injuries to persons or damages to property which may arise
from or in connection with the Lessee's operation and use of the leased
premises. The cost of such insurance shall be borne by the Lessee.
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office form number GL 0002 (Ed.1f73) covering
Comprehensive General Liability; and Insurance Services Office
form number GL 0404 covering Broad Form Comprehensive General
Liability; and
2. Workers' Compensation as required by the Labor Code of the State
of Florida and Employers' Liability Insurance.
B. Minimum Limits of Insurance
Lessee shall maintain limits no less than:
1. Comprehensive General Liability: $300,000 combined single limit
per occurrence for bodily injury, personal injury and property
damage.
2. Workers' Compensation and Employers' Liability: Workers
compensation limits as required by the Labor Code of the State
of Florida and Employers' Liability limits of $100,000 per
accident.
3. Property Damage: Equal to replacement cost of real or personal
property owned by the City when this agreement is signed and
personal property acquired by the City, or by the Lessee on its
behalf, during the term of this lease. Policy shall identify by
separate schedule each item of real or personal property covered
and it respective replacement cost.
C. Deductibles and Self-Insured Retentions
Any deductible or self-insured retentions must be declared to and
approved by the City. At the option of the City the insurer
shall reduce or eliminate such deductible or self-insured retentions as
respects the City, its officials and employees.
D. Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following
provisions:
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1. General Liability Coverages
a. The City, its officials, employees and volunteers are to be
covered as insured as respects: liability arising out of
activities performed by or on behalf of the Lessee and
premises owned, leased or used by the Lessee. The coverage
shall contain no special limitations on the scope of
protection afforded to the city, its officials, employees
or volunteers.
b. The Lessee's insurance coverage shall be primary insurance
as respects the City, its officials, employees and
volunteers. Any insurance or self-insurance maintained by
the City, its officials, employees or volunteers shall be
excess of Lessee's insurance and shall not contribute with
it.
c. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to the City,
its officials, employees or volunteers.
d. Coverage shall state that Lessee's insurance shall apply
separately to each insured against whom claim is made or
suit is brought, except with respect to the limits of the
insurer's liability.
2. Workers' Compensation and Employers' Liability Coverage
The insurer shall agree to waive all rights of subrogation
against the City, its officials, employees and volunteers for
losses arising from work performed by Lessee for the City.
3. All Coverages
a. Each insurance policy required by this cause shall be
endorsed to state that coverage shall not be suspended,
voided, cancelled, reduced in coverage or in limits
except after thirty (30) days' prior written notice by
certified mail, return receipt requested, has been given
to the City.
b. If the Lessee is underwritten on a claims-made basis, the
Retroactive Date shall be prior to or coincident with the
date of this contract and the Certificate of Insurance shall
state that coverage is claims made and also the Retroactive
Date. The Lessee shall maintain coverage for the duration
of this contract and for the two years following the
completion of this contract. The Lessee shall provide the
City annually a Certificate of Insurance as evidence of
insurance. It is further agreed that the Lessee shall
provide the City a 30-day notice of aggregate erosion,
and advance of the Retroactive Date, cancellation and/or
renewal. It is also agreed that either the Lessee or
City may invoke the tail option on behalf of the other
party and that Extended Reporting Period (ERP) premium
shall be paid by the Lessee.
E. Acceptability of Insurers
Insurance is to be placed with insurers with a Bests' rating of no less
than A:X.
F. Verification of Coverage
Lessee shall furnish the City with certificates of insurance and with
original endorsements affecting coverage required by this clause. The
certificates and endorsements for each insurance policy are to be signed
by that insured to bind coverage on its behalf. The certificates and
endorsements are to be on forms provided by the City and are to be
received and approved by the City before work commences.
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G. Subcontractors
Lessee shall include all subcontractors as insured under its policies
or shall furnish separate certificates and endorsements for each
subcontractor. All coverages for subcontractors shall be subject to
all of the requirements stated herein.
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