LEASE AGREEMENT (3)LEASE AGREEMENT
Al
THIS LEASE AGREEMENT, made and entered into this 19 day of,
2009, by and between the CITY OF CLEARWATER, FLORIDA, a municipal corporation,
Post Office Box 4748, Clearwater, Florida 33758, hereinafter referred to as "Lessor" and
CLEARWATER BEACH SEAFOOD, INC., a Florida corporation, d/b/a Crabby Bill's
Clearwater Beach Restaurant, 37 Causeway Boulevard, Clearwater, Florida 33767,
hereinafter referred to as "Lessee":
WITNESSETH:
WHEREAS, Lessor is the owner of the fee simple title to the area described in
Exhibit A and hereinafter referred to as the "Premises"; and
WHEREAS, Lessor is willing to lease to Lessee the Premises "as is", for a full
service restaurant under the terms and conditions in this Lease Agreement;
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. The term of this agreement begins on the date of execution and terminates
September 30, 2011. Except during the commencement term (date of execution to Sept.
30, 2009), as referred to throughout this agreement, an "agreement year" commences on
the 1 st day of October of each year and terminates on the 30th day of September of the
following year.
2. The Lessor may cancel this agreement at any time by giving fifteen (15) days
prior written notice to the Lessee, or any of its agents or its attorney, when in the opinion of
the Lessor inferior service is being offered or the terms of the minimum financial agreement
are not being met or for any other good and valid reason that in the opinion of the Lessor
might detract from Clearwater and is not in the best interest of the public. Such written
notice shall state in particular any and all complaints and Lessee shall have fifteen (15)
days within which to reasonably correct such complaints to the satisfaction of the City
Manager.
3. Lessor, in addition to any other right of termination set forth in this agreement,
may terminate this Lease for any municipal need as determined by the City Council on
sixty (60) days written notice.
4. The Premises shall be used only for the purpose of conducting the business
of a full service restaurant with full liquor bar and service.
5. The Lessee hereby covenants and agrees to pay:
a. A guaranteed minimum rental in equal monthly payments, which will
be due and payable on the first day of each month, an amount in accordance with the
following schedule:
Years of Lease Monthly payments
Commencement - Sept. 30, 2009 $8,912.86 plus tax
Oct. 1, 2009 - Sept. 30, 2011 $8,912.86 plus tax and annual CPI increase
The minimum rental shall increase on an annual basis beginning October 1, 2009,
based on the Consumer Price Index for all Urban Consumers (CPI-U) South Urban area,
for the twelve-month period ending September 30t". In no event will the minimum rental
decrease from the most recent lease period.
b. Any amount due from Lessee to Lessor underthis agreementwhich is
not paid when due shall bear interest at ten percent (10%) per month beginning five (5)
days after the due date until paid in full.
C. Security deposit equal to one month's rent including taxes. Since the
current deposit on file is $7,490.00, Lessee shall remit an additional
2
$2,046.76 to have deposit up-to-date reflecting the requirements of
this Lease Agreement.
6. The Lessee hereby covenants and agrees to make no unlawful, improper, or
offensive use of the Premises. Lessee shall not permit any business to be operated in or
from the Premises by any concessionaire of Lessee without the written consent of Lessor.
Lessee further covenants and agrees not to assign, pledge, hypothecate, or sublet this
agreement in whole or in part without the prior written consent of Lessor. The consent of
Lessor to any assignment, pledging, hypothecating, or subletting shall be at Lessor's sole
discretion, and shall not constitute a waiver of the necessity for such consent to any
subsequent assignment, pledging, hypothecating, or subletting. This paragraph shall be
construed to include a prohibition against any assignment or subletting by operation of law.
If this agreement is assigned, or if the Premises or any part thereof are sublet or occupied
by anybody other than Lessee, Lessor may collect rent from the assignee, subtenant or
occupant, and apply the net amount collected to the payments to be made herein by
Lessee, but no such assignment, subletting, occupancy or collection shall be deemed a
waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as
tenant, or a release of Lessee from the further performance by Lessee of covenants on the
part of Lessee herein contained. If at any time during the term of this Agreement, any or all
of Lessee's interests are transferred by sale, assignment, bequest, inheritance, operation
of law or disposition,
Lessee shall notify Lessor in writing of such transfer and shall provide to Lessor the
name, address, financial statement and business experience resume for the immediate
preceding five (5) years of the proposed assignee. This information shall be in writing and
3
shall be received by Lessor no less than thirty (30) days prior to the effective date of such
transfer. Lessor at its sole discretion shall have the option of accepting the proposed
assignee and can charge a reasonable fee to Lessee for processing such request. Lessee
can request a transfer under this provision no more than once in an agreement year unless
specifically consented to in writing by Lessor.
7. Lessee agrees that it will promptly pay all ad valorem real property taxes and
personal property taxes that may be assessed against the Premises during the term of this
agreement. Lessee further agrees that it-will pay any state sales tax due on the rental
payment made by the Lessee to the Lessor and that it will pay all other taxes, including but
not limited to, occupational license, beverage license, and permits relating to the operation
of the business conducted on the Premises, which are required by law.
8. Lessee hereby covenants and agrees to pay all bills for electrical current,
gas, water, heat, refuse collection, and other services to the premises when due.
9. Lessee will use biodegradable materials whenever feasible.
10. Lessee will provide all equipment and merchandise necessary for the
operation of the restaurant. In addition, the Lessee will pay all normal day-to-day repair,
maintenance, and replacement costs, being certain that any material used will be equal to
or better than that originally provided.
11. Lessee will be responsible for picking up and disposing of all trash, garbage,
and other debris upon or about the Premises or surrounding premises. Lessee and Lessor
may equally share the monthly cost of solid waste collection from the Lessee's dumpster,
at the Lessor's sole discretion.
12. Lessee agrees to indemnify and hold Lessor and its employees harmless
4
from and against any and all claims, demands, and causes of action or lawsuits of
whatever kind or character arising directly or indirectly out of this agreement and/or
performance hereof. This indemnity clause includes, but is not limited to, claims,
demands, causes of action or lawsuits for damages or injuries to goods, wares,
merchandise and property and/or for any bodily or personal injury or loss of life in, upon or
about the Premises or the surrounding premises the Lessee is required to maintain or
which the Lessee uses in connection with the business operated at, on or from the
Premises. All personal property, including trade fixtures, in the Premises shall be at the
risk of Lessee, and Lessor shall not be liable for any damage to such property arising from
any cause including, but not limited to, bursting, leaking or accidental operation of water or
sewer pipes; roof leaks or flooding. Lessee agrees to investigate, handle, provide defense
for and defend any such claims, demands, causes of action or lawsuits at its sole expense
and agrees to bear all other costs and expenses related thereto, even if the claim, demand,
cause of action or lawsuit is groundless, false or fraudulent.
Lessee shall at his own expense purchase or maintain during the term of this
agreement, the insurance coverages set out below:
a. Property Insurance - (Real property including improvements and/or
additions).
(1) Form -All Risk Coverage.
(2) Amount of Insurance - The full insurable value on replacement
cost basis.
(3) Flood Insurance - When buildings or structures are located
within an identified special flood area, flood insurance must be
5
provided for the Lessor-of the total insurable value of such buildings
or structures, or, the maximum of flood insurance coverage available
under the National Flood Program.
(4) The City of Clearwater, as Lessor, shall be named as an
additional insured.
b. Boiler and Machinery Insurance - If the buildings or structure include
boiler(s), pressure vessel(s), and/or air conditioning/heating equipment, Lessee
shall maintain comprehensive insurance covering loss on the demised property
including liability for damage to property of others.
(1) Repair and replacement.
(2) Amount of insurance - $1,000,000 per accident.
(3) The City or Clearwater, as Lessor, shall be named as an
additional insured.
C. Comprehensive General Liability - Coverage must be afforded on a
form no more restrictive than the latest edition of the Comprehensive General
Liability Policy filed by the Insurance Services Offices and must include:
(1) Minimum limits of $1,000,000 per occurrence combined single
limits for Bodily Injury Liability, Personal Injury, and Property Damage
Liability.
(2) Premises and/or operations.
(3) Independent contractors.
(4) Products and/or completed operations.
(5) Personal injury coverage with employee and contractual
6
exclusions removed, including coverage for liability resulting from the
dispensing of alcoholic beverages, if Lessee at any time during the
term of this agreement obtains a license to serve any type of alcoholic
beverages.
(6) The City of Clearwater, as Lessor, shall be named as an
additional insured.
d. Business Auto Policy - Coverage must be afforded on a form no more
restrictive than the latest edition of the Business Auto Policy filed by the Insurance
Services Office and must include:
(1) Minimum limits of $1,000,000 per occurrence, combined single
limits for Bodily Injury Liability and Property Damage Liability.
(2) Coverage on all vehicles (owned, hired and non-owned).
(3) The City of Clearwater, as Lessor, shall be named as an
additional insured.
e. Workers' Comoensation. - Coverage to apply for all employees for
statutory limits in compliance with the applicable State and Federal laws. In
addition, the policy must include Employers' Liability with a limit of $500,000 each
accident. If the self-insured status of the Lessee is approved by the State of
Florida, the Lessor agrees to recognize and accept same upon proof of such
approval.
In addition, Lessee shall provide to Lessor the following:
(1) Complete copies of all insurance policies required by this agreement.
(2) Not less than thirty (30) days' notice of cancellation or restrictive
7
modifications of any insurance policy providing the coverage required by this
agreement.
13. If at any time during the term of this agreement, the buildings or Premises or
any part, system, or component thereof, (hereinafter, the "demised premises") shall be
damaged or destroyed, said demised premises and any additions or improvements thereto,
shall be promptly repaired or rebuilt or restored by the Lessee to the condition as good as
the same was immediately prior to such damage or destruction at the Lessee's risk and
expense, and in accordance with plans and specifications mutually agreed upon at the
time; or if none can be agreed upon, then in accordance with the original plans and
specifications and any subsequent plans and specifications for any additions or
improvements constructed prior to the damage. The work of restoration or rebuilding shall
be in full compliance with all laws and regulations and government ordinances applicable
thereto. The insurance proceeds shall be paid to the Lessor, and such proceeds will be
used for the repair or restoration. Any cost of repairs or restoration in excess of the
insurance proceeds shall be borne by the Lessee. Any insurance proceeds in excess of
the cost of repairs or restoration shall belong to the Lessee.
During the period of such damage or destruction, whether in whole or in part,
the monthly guaranteed rent shall abate for no more than 120 days or until commencement
of business, after receipt of all building permits, whichever is sooner. Lessor shall not
withhold unreasonably building permits Lessee applies for and are necessary to repair
such damage or destruction.
If the demised premises shall be totally destroyed or so damaged as to
render it practically useless during the term of this agreement, then and in that event, the
8
Lessee may terminate this agreement as of-the date of such damage with thirty (30) days
written notice to the Lessor. In the event of such termination the insurance proceeds
provided for under this agreement shall be paid to the Lessor. In the event of such
destruction and except as otherwise specifically provided under this agreement, both
parties waive any and all rights of recovery against each other for any direct or indirect loss
occurring to the demised premises.
14. Lessor, at its option, may exercise any one of the remedies provided in
subsection f of this paragraph, except as otherwise provided herein, upon the happening of
any one or more of the following events (Events of Default):
a. Lessee's default in the payment of any rental or other sums due for a
period of five (5) days after the due date;
b. There shall be filed by or against Lessee in any event 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 the Lessee makes an assignment by operations 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 for a
period of 120 days. Failure to remove the levy, seizure or attachment within the 120-day
period shall actuate the default provided by this paragraph and the bond posted shall be
forfeited.
C. Lessee's vacating or abandoning the Premises;
d. Lessee's understating gross sales by more than three (3%) percent in
sales reports given to Lessor. An error occurring by reason of computer malfunction,
9
typing, or other similar clerical error shall not be considered a default within the meaning of
this paragraph.
e. Lessor, at its option, may exercise any one or more of the following
remedies, which shall be cumulative.
(1) Terminate Lessee's right to possession under this agreement and
reenter and take possession of the Premises, 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 agreement and for all damages suffered by
Lessor because of Lessee's breach of any of the covenants of this
agreement. 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, and loss of prospective percentage rentals by
Lessor. Said prospective percentage rents shall be calculated on the basis
of Lessee's gross sales for the immediately preceding twelve (12) month
period or for the period, adjusted on an annualized basis, commencing with
the first day of this agreement if this agreement has not been in effect for
twelve (12) months. In addition to its remedies hereunder, Lessor may
accelerate all fixed rentals due under this agreement, in which event the
Lessee shall be liable for all past due rent, accelerated rent and damages as
10
described above; however with respect to the accelerated rent, Lessor shall
receive only the present value of such accelerated rent. At any time during
repossession and reletting pursuant to this subsection, Lessor may, by
delivering written notice to Lessee, elect to exercise its option under the
following subsection 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 agreement to be terminated, whereupon the term hereby
granted and all right, title and interest of Lessee in the Premises shall end
and Lessor may re-enter upon and take possession of the Premises. Such
termination shall be without prejudice to Lessor's right to collect from Lessee
any rental or additional rental which has accrued prior to such termination
together with all damages, including, but not limited to the loss of prospective
percentage rentals suffered by Lessor because of Lessee's breach of any
covenant under this agreement.
3) Exercise any and all rights and privileges that Lessor may have under
the laws of the State of Florida and/or the United States of America.
15. Lessee shall secure prior written approval from Lessor for modifications or
remodeling of existing facilities or for the construction of any new facilities, such approval
not to be unreasonably withheld. The terms remodeling or modifications as used herein
shall include only those events requiring the issuance of a building permit. It is agreed that
the existing improvements, together with any improvements constructed by Lessee during
the term of this agreement on the demised premises, shall become the property of the
11
Lessor upon the expiration of termination of this agreement; provided, however, that said
reference to improvements herein contemplates improvements to the real estate which
become a part of the land as distinguished from personal property utilized by the Lessee.
16. Lessee shall, at his expense, at all times during the terms of this agreement
keep the Premises and all improvements and facilities thereon in good order, condition,
and repair. It is specifically understood by Lessee that the Lessor has the right to inspect
the Premises and improvements at any time to ensure that the Premises and
improvements are indeed in good order, condition, and repair. Upon the termination or
expiration of this agreement, Lessee shall repair any and all damages to the Premises
caused by the removal by Lessee of personal property.
17. Upon the termination or expiration of the agreement for whatever cause, the
Lessee shall have the privilege at his own expense of removing its equipment, signs,
insignia, and other indicia of its tenancy or use.
18. Lessee agrees to indemnify and save harmless the Lessor by reason of any
mechanic's lien which may be asserted as a claim against the property, and to furnish
Lessor a good and sufficient bond signed by a reputable bonding company doing business
in Florida, which bond shall be in an amount equal to one hundred 100 percent (100%) of
the cost of construction of the contemplated improvements to the demised premises.
19. The Lessee hereby covenants and agrees to promptly and continuously
comply with all regulations and orders of the Florida Department of Business and
Professional Regulation and officers of the local, state, and national governments; and
Lessee hereby covenants and agrees to keep, operate, and maintain the restaurant in
such a manner as to avoid any warnings, violations or notices to show cause being issued
12
by any regulatory agency authorized to inspect the Premises under Florida Statute 509 as
it presently exists or as it may be amended. In addition, Lessee agrees to forward to
Lessor a copy of each inspection report issued in accordance with Florida Statute 509 as it
presently exists or as it may be amended within five (5) days of receiving any such reports.
20. 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 agreement, Lessee shall peaceably
and quietly hold and enjoy the Premises for the term of the agreement without hindrance or
interruption by Lessor.
21. Notices hereunder shall be given only by registered letter and shall, unless
otherwise expressly provided, be deemed given when the letter if deposited in the mail,
postage prepaid, addressed to the party for whom intended at such party's address first
herein specified or to such other address as may be substituted therefore by proper notice
hereunder. Notice to be provided to Lessor and Lessee as stated below:
As to Lessor:
City Attorney's Office
City of Clearwater
Post Office Box 4748
Clearwater, Florida 33758-4748
As to Lessee:
Clearwater Beach Seafood, Inc.
37 Causeway Boulevard
Clearwater, Florida 33767
22. No sign of any type will be posted, erected, hung or otherwise placed in view
of the general public so as to advertise any product or identify the restaurant unless
permitted by the City of Clearwater Code of Ordinances, as they now exist or as they may
13
be amended, and unless authorized and approved by the City.
23. Restroom facilities must be kept clean and sanitary at all times and are
subject to inspection by Lessor. No coin-operated toilets or other coin-operated devices
will be allowed in the aforementioned restroom facilities except upon written authorization
of the City. Lessee agrees to notify immediately the Lessor's Police Department at any
time the Lessee becomes aware of any activity that is a violation of a law in the area of the
Premises.
24. Lessee shall not advertise any business not operated at, on, or from the
Premises without the prior written consent of the City.
25. In the event the Lessor retains an attorney to enforce any of the provisions of
this agreement or renewals of or addenda to this agreement, or to effect the enforcement
of any legal right of the Lessor against the Lessee, the Lessee agrees to pay the Lessor all
costs of said enforcement reasonably incurred, including court costs and reasonable
attorney's fees.
26. The undersigned officer of Lessee shall personally guarantee to Lessor the
timely performance of all covenants and provisions of this agreement, including the
payment of all rent due hereunder. This guarantee shall be evidenced by the personal
guarantor's signature on this agreement.
[Continued on the following page.]
14
IN WITNESS WHEREOF, this agreement is executed as of the date first above written.
Countersigned: CITY OF CLEARWATER, FLORIDA
YV
ibbard, Mayor William Horne, City Manager
Attest:
Cynt 'a E. Goudeau, City Clerk
Of TAE
,\11, d&
CLEARWATER BEACH SEAFOOD, INC. ?Q,
By:
Print: Aha-m--w I. b a of
Its: President
BY: WY
Print: LOD cn SrL
Personal Guarantor
15
EXHIBIT "A"
Legal Description of Premises:
That part of Lots 12 and 13, CITY PARK SUBDIVISION, according to the plat thereof
recorded in Plat Book 23, Page 37, of the public records of Pinellas County, Florida,
described as follows: Begin at the Northwest corner of Lot 13 and run Easterly along
the North line of Lot 13, a distance of 110 feet to a point, said point being the Point of
Beginning; run Easterly along the North line of Lots 12 and 13, a distance of 100 feet to
a point; thence run Southerly along a line parallel to the East line of Lot 13, a distance
of 60 feet to a point; thence run Westerly a distance of 100 feet along a line parallel to
and 60 feet South of the North line of Lots 12 and 13 to a point; thence run Northerly
along a line parallel to the East line of Lot 13, a distance of 60 feet to a point of
beginning.
16