TEMPORARY OCCUPANCY LICENSE AGREEMENT FOR CLEARWATER POLICE DEPARTMENT
I
NEW PLAN EXCEL REALTY TRUST, INC.
TEMPORARY OCCUPANCY LICENSE AGREEMENT
FOR
CLEARWATER MALL
, ~. THIS TEMPOR~Y OCCUPANCY LICENSE AG~~MENT ("Agreement") is effective this
7 day of 1= ,~~y and between New Plan Excel Realty
Trust, Inc. ("Licensor") and Clearwater Police Department (Licensee").
RECITALS
Licensor is the operator of certain real property located in the City of Clearwater, County of Pinellas, State
of Florida, commonly known as Clearwater Mall ("Mall"). Licensee desires to temporarily occupy space in
a portion of the Mall for the purpose of conducting business subject to the terms, covenants, and
agreements set forth in this Agreement.
TERMS
1. Temporary Space. Licensor hereby grants a license to Licensee to use, and Licensee will occupy,
that certain commercial space or cart location containing approximately 2,358 square feet,
commonly referred to as Space #101 (B-1) (the "Temporary Space") and the approximate location
of which is indicated on Schedule 0 attached hereto. The Temporary Space is accepted by
Licensee in an "As Is" condition. Any improvements to the Temporary Space by Licensee must be
approved in advance by Licensor and shall be paid for by Licensee.
Licensor shall have the right, in its sole and absolute discretion, to relocate the Licensee to another
location.
**Landlord will furnish electrical power and water at no cost to Clearwater Police
Department. **
**Police employees will not has keys or access to the Mall after business hours; only
access to Suite #101. **
2. Term. The initial term of this Agreement begins on signature by both parties ("Initial Term").
This is a month-to-month Temporary Occupancy License Agreement.
3. Term Extension. At the expiration of the Initial Term Licensee shall be on a month to month
tenancy, in which event either party may terminate this Agreement upon thirty (30) days prior written
notice to the other party.
4. Fees:Repertin~. Liccnsee agrees to pay fees as specified in the attaeRed Schedule A. Licensee
agrees to submit the reporting form as set forth in Schedule B for each month no later than
the fifth (5th) da~' of the follo'.vin~ month alon~ v.'ith anv pa'iment at rereenta~e Rent due.
All fees and rercentage Rent paid after the 10tiT of the month shall be oonsider{3d a default of this
Agreement and said Agreement shall terminate immediately. In the e'Ient Licensee fails to pay any
eMarges, expenses, or other fees such as, but not limited, to telephone expenses and utilities, 'vVhich
are payable direetly by Lieensee toa third party, Licensor shall have tlie right, but not the obligation,
to pay such sums and any such sum so paid by Licensor shall be immediately due and payable by
Licensee to Licensor as additional Fent.
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Cross Cales s"'all be reeerded usiRg sue'" ~stefl'lS aRd procedures as approved by LiceRsor aRd
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shall fl'Iake such receFels available te LiceRser UpOR request at a locatioR desigRated by Licensor.
f"enaltvlLate r ee
H the monthly rental an70tmt is not paid in fuN by the 'F day sf eash manth, an aElditional
charge of 19% of the monthly rental amount wiN be assessed as a rena/tylLate fee.
5. Merchandisina and Visual Presentation. All interior and exterior signs must be reviewed and
approved by the Licensor before installation and use. No banner signs, handmade or other non-
professional signs shall be allowed. All displays and merchandising presentations must be created
and maintained by a professional display or visual presentation person.
6. Termination of Aareement. Licensor may tenninate this Agreement upon twenty-four (24) hours
notice in the event of a breach of this Agreement by Licensee; provided, however, if the nature of
the breach is such that, in Licensor's sole discretion, less than 24-hours notice is necessary, the
Agreement shall tenninate upon the expiration of such lesser notice period. Further, Licensor
retains the right, in its sole and absolute discretion and without cause, to terminate this Agreement
upon thirty (30) days prior written notice to Licensee.
In the event tennination of the Agreement, Licensee shall remove all merchandise and vacate the
Temporary Space on or before the effective date of tennination.
In the event this Agreement is terminated, Licensee shall not have the right to occupy the
Temporary Space. Should Licensee do so after tennination, without the express written consent of
Licensor, it is agreed that said occupancy shall constitute a trespass and that, in addition to any
other remedies available to it, Licensor shall be entitled to seek immediate injunctive relief.
7. Use of Temporary Space. Licensee shall only operate under the trade name of "Clearwater
Police Department". Temporary Space shall be used solely for a police substation, and for no
other use or purpose.
8. Non-assianabilitv. This Agreement is personal to Licensee. Licensee shall not have the right or
power to assign, sublet, franchise or otherwise transfer any rights under this Agreement.
9. Conduct of Business.
(a) During the tenn of this Agreement, Licensee shall operate its business continuously utilizing
the entire Temporary Space and without interruption on all days that the Mall is open for
business to the public, as detennined in Licensor's sole and absolute discretion.
(b) Licensee agrees to abide by all rules and regulations established by Licensor, as
detennined in Licensor's sole and absolute discretion, including, but not limited to, the
Occupancy Rules which are attached as Schedule C.
(c) Licensee, at its sole cost and expense, shall secure all necessary pennits, authorizations
and approvals which may be required by any and all govemmental authorities with respect
to the use and occupancy of the Temporary Space, and shall at all times comply with all
governmental rules, regulations, ordinances, statutes and laws now, or hereinafter in force,
pertaining to the Temporary Space and Licensee's use thereof. All installations and
equipment used by Licensee shall be maintained and installed in strict conformity with the
requirements of the Board of Fire Underwriters as well as local, state and federal laws,
rules and regulations.
(d) All retums made by Licensee's customers within 10 days with a valid receipt must be
replaced, repaired, exchanged or refunded at the customer's option. No other refund policy
shall be pennitted.
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(e)
Licensor shall h"ve the right, in its sole and absolute discretion, to immediately close and
remove the LiCfnsee's business in the Temporary Spacd without prior notice if, in
Licensor's sole and absolute discretion, the operation of the 1emporary Space or actions
of the Licensee or its employees are not consistent with the operation of the Shopping
Center.
10. Indemnification. Licensee shall, to the extent permitted by Florida law, indemnify, defend, save,
and hold Licensor, its agents and employees, harmless of and from any losses, fines, penalties,
costs, damage, claims, demands, suits and liabilities of any nature, including attomeys fees arising
out of, because of, or due to any accident or occurrence on the leased premises arising as the
direct result of Licensee's negligence.
11. Insurance. Licensee, at its expense, and during the term of this License Agreement, shall either
maintain at all times, public liability insurance protecting Licensor and Licensee, or self-insure
against any and all claims for injury and damage to persons or property or for the loss of life or
property occurring in, on, or about the premises arising out of the negligent act or omission of
Licensee, its employees, agents, contractors, customers, licensees, and invitees. Such public
liability insurance or self-insurance shall be carried in the amount of not less than $100,000.00 per
person or $200,000.00 per occurrence for bodily injury, death, or property damage. Any policy of
liability insurance purchased by Licensee specifically to insure the obligations of Licensee as set
forth in this License Agreement, if any, shall be issued by companies licensed to do business in the
State of Florida, and any such policy shall contain a provision whereby the same cannot be
canceled or modified unless Licensor is given written notice of such cancellation or modification as
required by law. Licensee shall provide Licensor annually either a certificate of insurance or a letter
of self-insurance, as the case may be, showing such liability insurance or self-insurance to be in
place.
Any provision of this License Agreement to the contrary notwithstanding, the total liability of the
Licensee to the Licensor shall not under any circumstances or for any reason exceed those sums
set forth in Section 768.28, Florida Statutes, nor shall Licensee be liable to any party, including the
Licensor, for any negligence of Licensor.
12. Waiver of Riahts. Licensee (for itself and its insurer) hereby waives any rights, including rights of
subrogation, it may have against Licensor, Licensor's Agents, and/or against any of the parties to
the Construction, Operation and Reciprocal Easement Agreement for the Mall, for compensation of
any loss or damage occasioned to Licensee with regard to Licensee's property. The foregoing
waiver shall be operative only so long as available in the state where the Mall is located and shall
be effective whether or not Licensee maintains the insurance required to be carried pursuant to this
Agreement.
13. Utilities. Taxes. and Fees. Any and all utilities utilized by Temporary Occupancy and/or serving
the Temporary Space, including but not limited to telephone services, and any taxes, fees and
assessments, including but not limited to fees for permits, profits, sales or use taxes, personal
property taxes, or any other taxes which may be levied or assessed on the assets, business or
capital of Licensee or Licensee's income therefrom, by any duly constituted government authority,
shall be bome and paid for by Licensee.
14. Entire Aareement. This Agreement is and shall be considered to be the only agreement between
the parties hereto. All prior negotiations, representations and agreements between the parties are
merged herein. This Agreement may be amended or modified only by a written instrument
executed by all parties.
15. Govemina Law, Entiretv of Aareement and Partial Invalidity. This Agreement shall be
govemed by the laws of the state in which the Mall is located. If any provision in this Agreement is
held by any court to be invalid, void or unenforceable, the remaining provisions shall nevertheless
continue in full force and effect.
16. Waiver. Waiver by Licensor of any breach of any term, covenant or condition herein contained
shall not be deemed a waiver of any subsequent breach of the same or any other term, covenant
or condition herein contained.
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17.
Attornevs' Fees. If anfction at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the pr ailing party shall be entitled to reasonablt. attomeys' fees, costs and
necessary disbursemen in addition to any other relief to which such party may be entitled.
18.
No Partnership Interest or Estate. It is understood and agreed that nothing herein contained shall
be considered as in any way constituting a partnership or joint venture between Licensor and
Licensee and that Licensee does not and shall not claim at any time any interest or estate of any
kind.
19.
Severabilitv. If any provision in this Agreement is held by any court to be invalid, void or
unenforceable, the remaining provisions shall nevertheless continue in full force and effect.
20.
Notices. Any notices permitted or required to be given or served by either party to the other shall
be in writing and delivered personally, or sent by certified or registered mail, postage prepaid, or by
nationally recognized courier or ovemight delivery service (e.g., Federal Express), and addressed
as follows:
To Licensor:
New Plan Excel Realty Trust, Inc. (Fed. Tax 1.0. #: 33-0160389)
clo Clearwater Mall
Attn: Gaylen A. Spencer
20505 U.S. Highway 19 North, Suite 310
Clearwater, Florida 33764
Phone: 727-796-2336
FAX: 727-726-4580
To Licensee:
Clearwater Police Department SEND RENT PAYMENTS TO:
Attn: Dewey M. Williams, Deputy Chief
645 Pierce Street New Plan Excel Realty Trust
Clearwater, FL 33756 P.O. Box 966
Phone: 727-562-4344 New York, NY 10108
FAX: 727-562-4339
21. Property and Merchandise Security. It is the responsibility of Licensee to properly secure its
merchandise and personal property within the Temporary Space or in any provided storage. Loss,
damage or theft of personal property or merchandise is not the responsibility of the Licensor and
Licensor shall have no liability whatsoever to Licensee for the same.
22. Merchandise Sold from Temporary Space. All merchandise sold from Temporary Space must
be the property of Licensee. Deposits for orders are not permitted. All merchandise sold from
Temporary Space must be cash and carry.
23. Sianaae. No sign, poster, placard, display or written material shall interfere with the commercial
purpose of the Shopping Center, or its Licensees, or contain or depict "fighting words," obscenities,
pornography, grisly or gruesome displays, highly inflammatory slogans likely to provoke a
disturbance, or racial, religious, or ethnic slurs. (See Schedule E, Addendum 1)
24. Corporation. In the event Licensee shall be a corporation, the parties executing this Agreement on
behalf of Licensee hereby covenant and warrant that Licensee is a duly qualified corporation and
all steps have been taken prior to the date hereof to qualify Licensee to do business in the State
where the Mall is located; corporate taxes have been paid to date; and all future forms, reports, fees
and other documents or payments necessary to comply with applicable laws will be filed or paid
when due.
25. Time of Essence. Time is of essence with this Agreement and with every term, covenant and
condition hereof.
26. Counterparts. This Agreement may be executed in any number of counterparts and each such
counterpart shall be deemed to be an original instrument.
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27.
28.
29.
30.
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Schedules. The fOIlOWilg schedules are attached hereto and incorporred herein by this reference:
1. Schedule A - Minimum Rent and Percentage Rent
2. Schedule B - Statements of Sales and Percentage Rent Calculation
3. Schedule C - Temporary Occupancy Rules
4. Schedule D - Plot Plan Designating Approximate Location of Temporary Space/Cart
5. Schedule E - Addendum
6. Schedule F - Insurance Certificate(s)
No Presumption. Although the provisions of this Agreement were drafted primarily by
Licensor. the parties hereto agree that such fact shall not create any presumption,
construction or implication favoring the position of either Licensor or Licensee. The parties
agree that any deletion of language from this Agreement prior to its execution by Licensor
and Licensee shall not be construed to have any particular meaning or to raise any
presumption. construction or implication. including. without limitation. any implication that
the parties intended thereby to state the opposite of the deleted language. The captions of
the Sections of this Agreement are for convenience only. are not operative parts of the
Agreement and do not in any way limit or amplify the terms and provisions of this
Agreement.
Waiver of Trial bv Jurv. Licensor and Licensee hereby waive any and all rights to a trial by
jury in any action. proceeding or counterclaim (including any claim for injury or damage and
any emergency and other statutory remedy in respect thereof) brought by either against the
other on any matter arising out of or in any way connected with this Agreement. the
relationship of Licensor and Licensee. andlor Licensee's use or occupancy of the
Temporary Space.
Confidentiality. Lieensee agrees that all sf its efficers. employees. agents and other
individuals associated '.vith Lieensee. shall refrain frem diseussing with or releasing to any
third party any information relathl'e to the terms and conditions of this Agreement. In
particular. no such person shall discuss or reveal the terms and eonditions of this
Agreement '"vith any other Lieensee at Mall. Any violation of this provision shall eonstitute
a non..eurable default under the Agreement and shall entitle Licensor to any and all remedies
for default ineluding. without limitation. the right deseribed in this Agreement.
31.
Securitv Deposit. Licensee shall. upon Lieensec's exeeution of this Agreement. deposit
with Lieensor a Seeurit)' Deposit for full pel'formanee all Licensee's obligations under this
Agreement in the agreed amount. Lieensor shall not be liable for interest and shall not be
required to hold the Security Deposit in a segregated aeeount. If upon termination of this
Agreement. Liecnsee is in default thereunder. Lieensor may. in addition to any other rights
that it may ha....e. retain the Seeurity Deposit. Should Licensee comply with all sf said
obligations and premptly pay all the rentals 'iihen due and all other sums payable by
Licensee to Lieensor. the Seeurity Deposit shall be refunded in full to Licensee at the
expiration or earlier termination sf the Lease Term.
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SCHEDULE A
MllMUM RENT AND PERCENTAGE RENT I
All fees are individually negotiated with each Licensee and set according to location, season of the year and
product being sold.
All License Fees are subiect to 7% Florida sales tax.
Licensee shall pay the following fees under this agreement:
MINIMUM RENT PERCENT AGE RENT
MONTHLY FEE DUE DATE % OF SALES DUE DATE
N/A NIA NIA
RENT FREE
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SCHEDULE 8
STATEMENT cl SALES AND PERCENTAGE RENT CA!CULATION
$
$
Net Sales:
$
x
TOTAL SALES Rent
TOTAL PERCENT A
$
I hereby certify that the above figures and cal
Licensor may audit these numbers.
ions are true and correct and agree that
Signed:
Name:
Title:
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SCHEDULE C
IrEMPORARY OCCUPANCY RULES I
1. DesiQn Submission Requirements. All improvements, merchandising and visual
presentation are subject to approval by Licensor.
2. Business Name and SiQnaQe. Licensee shall operate the Temporary Space under the trade
name set forth in the Agreement and any change in such trade name is subject to written
approval by Licensor. All siQnaQe is subiect to Licensor's approval. No handwritten signs
shall be permitted. (See Schedule E, Addendum 1)
3. Merchandise and Use Clause. Licensee shall use the Temporary Space only for the use
permitted in the Agreement.
4. Dress Code, EatinQ, Drinkinq and Smokinq. Employees shall dress in a professional fashion
at all times. Activities such as eating, drinking and smoking are not allowed at anytime in
the Licensee's sales area.
5. HousekeepinQ, Stock and Store Displav. Temporary Space shall be kept neat and safe at all
times. Temporary Space shall be fully stocked at all times.
6. Operation of Business. Licensee shall conduct its business as a separate entity,
responsible for all its own product, inventory and employees.
7. Hours. Licensee will be open all Mall hours.
8. Deliveries of Product. Licensee, when accepting deliveries of product shall instruct its
vendors to use the appropriate Shopping Center delivery dock or other area designated by
the Shopping Center management office.
9. Displav/Solicitation. Licensee shall not display, paint or place, or cause to be displayed,
painted or placed, any handbills, bumper stickers or other advertising devices on any
vehicle parked in the parking area of the Mall, whether belonging to Licensee, or to
Licensee's agent, or to any other person, nor shall Licensee distribute, or cause to be
distributed, in the Mall, any handbills or other advertising devices.
10. Licensee will deposit its trash only in the Mall trash receptacles and shall participate in and
comply with any procedures established for the collection, sorting, separation, and
recycling of waste products, garbage, refuse, and trash.
11. Licensee shall use its best efforts to complete or cause to be completed, all deliveries,
loading, unloading, and services to the Premises priorto 10:00 a.m. of each day. Licensee
shall attempt to prevent any delivery trucks or other vehicles servicing the premises from
10:00 a.m. to 9:00 p.m. of each day.
12. Employees of Licensee shall not park their automobiles in those automobile parking areas
of the Common Area which Licensor may from time to time designate for use by patrons of
the Mall.
13. Licensee shall not display or sell merchandise, or place carts, portable signs, devices or any
other objects in the Common Area and Licensee shall not solicit or distribute materials in
any manner in the Common Area.
14. Licensee shall utilize no medium which can be heard or experienced outside of the
Premises.
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SCHEDULE E
ADDENDUM
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List each addendum by number as it appears in order in the Temporary Occupancy
Agreement.
Addendum 1 - Sianaae
Licensee shall not place, affix, or maintain any signs, advertising placards, names, insignia,
trademarks, descriptive material or any other similar item or items outside, on or within twenty-
four inches (24") of the Lease Line, the storefront, the glass panes and supports of the show
windows, or any window, door, roof or Perimeter Demising Partition of the Premises, except
such signs as Licensor shall approve in writing.
Addendum 2 - Emplovee Parkina
Employees of Licensee shall not park their vehicles in the parking space provided for
customers on property of which demised premises are a part or in alleys or service courts
serving buildings of the Licensor.
Licensee and its employees shall park their vehicles a minimum of 12 spaces out from the mall
or any areas Licensor designates. During the holiday season, this minimum requirement is
changed to 15 spaces out from the mall. If Licensee or its employees fail to park their vehicles
in the designated parking areas, Licensor may charge Licensee ten dollars ($10.00) per vehicle
per day for each day or partial day that any vehicle is parked in any area other than those
designated; provided, however, Licensor agrees to give Licensee written notice of the first
violation of this provision. If said violation is not corrected, then the aforesaid fine shall be
levied and Licensee shall pay the same within ten (10) days of Licensor's request. After notice
of such first violation, no prior notice of any subsequent violation shall be required.
Addendum 3 - Dress Code
Licensee and its employees shall wear appropriate attire at all times while in the Mall, and are
expressly prohibited from wearing swimsuits, faded jeans, shorts, midriffs, ripped or torn
clothing, and sweats.
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SCHEDULE F
INSURANCE CERTIFICA TE(S)
Attach required Certificate(s) of Insurance
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IN WITNESS WHEREOF, the parties hereto have entered in to this Agreement
on the date and year above written.
Approved as to form:
e&u~~~
Assistant City Attorney
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Licensee:
CITY 0 CLEARWATER, FLORIDA
By:
Mic el J. Roberto
City Manager
Attest:
Cy t ia E. Goude~u
City lerk
Licensor:
NEW PLAN EXCEL REALTY TRUST,
INC., a Maryland corporation
By: ~~<1Ma: 1 r4~"1
Gaylen . Spencer
General Manager