LEASE AGREEMENT,
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this �.5 day of
(Q�^, 2011, by and between the CITY OF CLEARWATER, FLORIDA, a
municipal corporation, hereinafter referred to as "Lessor" and Frank Chivas, Inc., a
�lorida corporation, d/b/a The Frank Chivas Restaurant, 25 Causeway Boulevard,
Clearwater, Florida 33767, hereinafter referred to as "Lessee":
WITNESSETH:
That in consideration of the covenants herein contained of the granting of this
lease and the sums paid and to be paid hereunder, the Lessor hereby leases to the
L�ssee and the L.essee hereby leases from the Lessor accarding 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."
NOW, THEREFORE, IT IS MUTUALLY AGREED AS �OLLOWS:
1. This lease shall be far a three (3) year lease term, with the option to renew
for an additional ane (1) year term, beginning, October 1, 2011, and ending either
September 30, 2014 or 2015 (if the option is exercised). An "agreement year"
commences on the 1 st day of �ctober of each year and terminates on the 30t" day of
September of the fallowing 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 L�ssar 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
opinian of the Lessar might detract from Clearwater and is nat 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.
Frank Chivas Lease Agreement
3. Lessor, in addition to any other right af termination set farth 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, along with the second floor deck on the east side of the
marina building, 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 cavenants and agrees to pay rental thereof as follows:
a. To pay the total sum of $31,p20.00 plus tax for the first year of this
lease, which shall be paid in equal manthly payments af $2,585.00 plus tax through
September 30, 2012. Each monthly payment shall be due and payable an the first day
of each month.
The minimum rental shall increase on an annual basis beginning October 1,
2012, based on the Cansumer Price Index for all Urban Consumers (CPI-U) South
Urban area, for the twelve-month period ending June 30th. In no event will the minimum
rental decrease from the most recent lease period.
b. In addition to the monthly rental, the Lessee shall, at the end of
each month, pay an amount equivalent to eight (8) percent of monthly gross alcoholic
beverage sales exceeding $10,000.00 throughout the t�rm of this lease. This payment
will be made alang with the Lessee's payment of the monthly rent. The Lessee shall
provide the Lessor within 15 days after the end of each month during the term of this
lease a statement showing the amount of alcohol beverage gross sales accounted
separately during the manth. The statement used by the Lessee to report such sales
will be in form satisfactory to the City Manager or his designee, showing the amount of
gross sales for the month being reported as evidence by a copy of the manthly State
Sales Tax return. The term "gross sales" as used in this paragraph means the entire
amount of the actual sales receipts, whether for cash or otherwise, for all sales
conducted in, on or from the premises. The term "alcohol beverage" means all
beverages containing alcohol. No deduction shall be allowed for uncollected ar
uncollectible credit accounts. Such term shall not include, however, any sums collected
and paid out for any sales or excis� tax imposed by a governmental authority wherein
Lessee is regarded as the collecting agent.
Frank Chivas Lease 2
c. Any amount due from Lessee to Lessor under this agreement which is
not paid when due shall bear interest at the maximum rate allowable by law, plus a late
charge of Ten Dollars ($10.Op) to cover Lessor's expenses in collecting such
delinquency.
d. In addition to paying the first month's rent of $2,585.00, the Lessee shall
pay an additional $2,585.00 as a deposit to secure the faithful performance of the
L.essee's abligations hereunder. The L�ssor 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 thereaf, if any, shall be credited to Lessee's last
monthly rental payment.
e. If Lessor defaults in the payment of any installment of rent, Frank
Chivas, as Guarantor under the Guaranty of Payment of Rent Under Lease Agreement
(Exhibit "C", attached hereto and incorporated herein), shall pay th� amount of such
installment within 30 days after receipt of notice of default and demand for payment as
provided for therein.
6. The Lessee hereby cavenants and agrees to make no unlawful, improper,
or affensive use of the Premis�s. L.essee shall not permit any business to be operated
in or from th� 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 af Lessor to any assignment, pledging, hypothecating, or subletting shall
be at Lessar's sole discretion, and shall nat constitute a waiver of th� 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 anybady other than Lessee, Lessor may collect
rent from the assignee, subtenant or occupant, and apply the net amount collected to
the payments ta be made herein by Lessee, but no such assignment, subletting,
occupancy ar collection shall be deemed a waiver of this covenant, ar the acceptance of
the assignee, subtenant or occupant as tenant, or a release of Lessee from the further
Frank Chivas Lease 3
perFarmance by Lessee of covenants an 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, aperation of law or disposition,
Lessee shall notify Lessor in writing of such transfer and shall provide to Lessar
the name, address, financial statement and business experience resume for the
imm�diate preceding five (5) years of the propased assignee. This informatian shall be
in writing and shall be received by Lessor no less than thirty (30) days prior to the
effectiv� date of such transfer. Lessor at its sole discretion shall have the option of
accepting the propased assignee and can charge a reasonabl� fee to Lessee for
pracessing such r�quest. 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, business tax receipt, beverage license, and permits relating
to the operation of the business conducted on the Premises, which ar� required by law.
S. The Lessee hereby covenants and agrees to pay all bills for electrical
service and water usage to the premises when due, which electrical service shall be
provided by Progress Energy Corporation, in accordance with the company's rates and
billing, and water service pravided by the City of Clearwater, in accordance with it's
standard rates and billing.
9. Lessee will use biodegradable materials wh�never feasible.
10. Lessee will provide all equipment and merchandis� necessary for the
operation of the r�staurant. In addition, the Lessee will pay all normal day-ta-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 collecting and disposing of all trash,
garbage, and other debris upon or about the leased premises including the deck.
12. The Lessee further covenants and agrees to operate the business
authorized to be conducted on the premises three hundred sixty five (365) days a year
Frank Chivas Lease 4
during the term of this lease, except for any period of time involved in natural disasters,
including governmental ord�rs or requirements such as evacuation for hurricane
preparations, and any time necessary to repair or replace any damage caused to the
demised premises by natural disasters.
13. L.essee agrees to indemnify and hold Lessor and its employees harmless
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 persanal injury or loss of life in, upon
or about the leased Premises or #he surrounding premises the Lessee is required ta
maintain or which the L.essee uses in connection with the business operated at, on ar
from the leased Premises. Damage to 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 operatian of water or sewer pipes; roof leaks ar flooding. Lessee
agrees to investigate, handle, pravide 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 ar
lawsuit is graundless, false or fraudulent.
Lessee shall at his awn expense purchase or maintain during the term of
this agreement, the insurance coverage confarming to the requirements in Exhibit "B"
attached hereto. Nothing contained herein shall be construed as a waiver af any
immunity from or limitation of liability the Lessor may be entitled to under the doctrine of
sovereign immunity or section 768.28, Florida Statutes.
14. If at any time during the term of this agreement, the buildings or Premises
or any part, system, or camponent thereof, (hereinafter, the "demised premises") shall
be damaged ar 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 accordanc� with plans and specifications mutually
Frank Chivas Lease 5
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 far 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 gavernment
ordinances applicable thereto. The insurance proceeds shall be paid ta the Lessor, and
such proceeds will be us�d for the repair or restoration. Any cast af repairs or
restaration in excess of the insurance proc�eds shall be borne by the Lessee. Any
insurance proceeds in excess of the cost of r�pairs or restoration shall belong to the
Lessee.
During the period af 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 rec�ipt 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 Lessee may terminate this agr�ement as of the date of such damage with thirty (3�)
days written notice to the Lessor. In the event of such terminatian the insurance
proceeds provided for under this agreement shall be paid to the L�ssor. In the event of
such destruction and except as otherwise specifically provided under this agreement,
bath parties waive any and all rights of recovery against each other for any direct or
indirect loss occurring to the demised premises.
In the event of major renovation to the Marina or demolition and
subsequent construction af a new Marina that causes the legal termination of this
Lease, the Lessee may be provided, at the Lessor's discretion, the first opportunity to
bid for similar space, provided that space for Lessee's type of business is available in
the renovated or new Marina.
15. Lessor, at its option, may exercise any one of the remedies provided in
subsection e of this section, except as otherwise provided herein, upon the happening
of any one or more af the following events (Events of Default):
a. Lessee's default in the payment of any rental or other sums due for
Frank Chivas Lease 6
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 af the United States or of any state, a petitian in bankruptcy or
insolvency ar far reorganization or arrangement, or for the appointment of a receiver or
trustee of all or a portion of Lesse�'s praperiy, or if the Lessee makes an assignment by
aperatians of law, or if Lessee makes application to Lessee's creditors to settle or
compound or extend the time far payment of Lessee's obligations, or if execution,
seizure, ar attachment for a period of 120 days. Failure to remave the levy, seizure or
attachment within the 120-day period shall actuate the d�fault provided by this
paragraph and the bond posted shall be forFeited.
c. l.essee'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 reasan af computer malfunction,
typing, or other similar clerical error shall not be considered a default within the meaning
of this paragraph.
e. Lessar, 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
Lessar 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 und�r this agreement and for all
damages suffered by Lessor because of L.essee's breach of any of the
covenants of this agreement. Said damages shall include, but not be
limited to, charges for removal and storage af Lessee's property,
remodeling and repairs, leasing, cammissions and legal fees, and loss of
prospective percentage rentals by Lessor. Said prospective percentage
rents shall be calculated on the basis of Lessee's grass sales for the
Frank Chivas Lease 7
immediately preceding finrelve (12) month period or for the period, adjusted
on an annualized basis, commencing with the fiirst 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 described above; however
with respect to the accelerated rent, Lessar 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
natice ta Lessee, elect to exercise its option und�r the following
subsection to accept a surrender af the Premises, terminate and cancel
this lease, and retake passession and occupancy of the Premises on
behalf of Lessor.
(2) De�l�re this agreement ta be termin�ted, 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 l.essor's right to
collect from L.essee any rental or additional rental which has accrued prior
to such termination together with all damages, including, but not limited to
the Ioss of praspective p�rcentage rentals sufFered by Lessor because of
Lessee's breach of any covenant under this agreement.
3) Exercise any and all rights and privileges that I�essor may hav�
under the laws of the State af Flarida and/or the United States of America.
16. Lessee shall secure prior written approval from Lessar for modifications ar
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 h�r�in 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 became
the property of the Lessor upon the expiration of termination of this agreement;
provided, however, that said reference to improvements herein contemplates
Frank Chivas Lease 8
improvements to the real estate which become a part of the land as distinguished from
personal praperly utilized by the Lessee.
17. 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 #he 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.
18. 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.
19. 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 impravements to the
demised premises.
20. 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 gavernments; and
Lessee hereby cavenants and agrees to keep, operate, and maintain the restaurant in
such a manner as to avoid any warnings, violations or natices ta show cause being
issued 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 agr�es
ta forward to Lessor a copy of each inspection report issued in accordance with Flarida
St�tute 509 as it presently exists or as it m�y be amended within five (5) days of
receiving any such reports.
21. Lessor covenants and agrees that upon payment by Lessee af the rents
herein provided, and upon obsenrance and performance by Lessee of all the covenants,
terms, and conditions required of the Lessee by the agreement, Lessee shall peaceably
Frank Chivas L.ease 9
�
and quietly hold and enjoy the Premises far the term of the agreement without
hindrance or interruptian by Lessor.
22. 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 ta 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 4�48
Clearwater, Flarida 33758-4748
As to Lessee:
Frank Chivas
25 Causeway Boulevard
Clearwater, Florida 33767
23. No sign af 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 be amended, and unless authorized and approved by the City. The Lessee, at
its own cost, may place only window, wall or canopy signs an the demised premises,
pravided said signs are approved as to calor, style and letter size by the Harbormaster
af the Lessor, and additionally conform to the sign ordinance of Lessor presently in
force or as may be amended from time ta time during the term of the lease. No other
signs shall be placed or maintained by the Lessee on the premises. Any nonconforming
sign now on the premises shall be removed by the Lessee within 30 days of approval of
the lease. The Lessee shall, upon expiration or termination of the lease, completely
remove any and all signs that have been placed on the leased premises by the Lessee.
Frank Chivas Lease 10
24. Lessee shall not advertise any business not operated at, on, or from the
Premises without the prior written cansent of the City.
25. In the event the Lessar retains an attorney to enfarce any of the provisions
of this agreement or renewals of or addenda to this agreement, ar to effect the
enforcement of any legal right of th� Lessor against the Lessee, the Lessee agrees to
pay the Lessor all costs of said enforcement reasanably incurred, including court costs
and reasanable attorney's fe�s.
IN WITNESS WHEREOF, this agreement is executed as of the date first abave written.
Cauntersigned:
. � • /�/� �
Frank Hibbard, Mayor
Camilo Sata, Assistant City Attarney
Frank Chivas L.ease
CITY OF CLEARWATER, FLORIDA
By ,
William Horne, City Manager
Attest:
Lr�1 � '
Rosemarie Call, City Clerk
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Ci •`� �, °' �
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�.'�e. ~ �w0��
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Its: President
By: �� � ��
Print: k-- I�/�
Personal Guarantor
11
Exhibit "A"
Legal Description of Premises:
Room/s 20 - 25, 28 — 32, hallway and 2"d floor deck on �ast side of Clearwater Marina
Building, located on Lots 11 and 12 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
Caunty, Florida.
Frank Chivas Lease 12
W
Exhibit "B"
1. Liability Insurance. Lessee shall maintain:
a. Comprehensive General Liability Insurance to include
premises/aperator liability and electrical liability in an amount
$1,00,000 cambined single limit Bodily Injury Liability and Property
Damage Liability.
b. Coverage for liabiliiy resulting from the dispensing af alcoholic
beverages in an amount not less than $500,000.
c. Worker's Compensation Insurance applicable to its employees far
statutory caverage limits in compliance with Florida laws.
2. Additional Insurance. The City is to be specifically included as an additional
insured pn all liability coverage described above.
3. Notice of Cancellation ar Restriction - All policies of insurance must be
endorsed to provide the City with thirty (30) days notice of cancellation or
restriction.
�. Certified Copies of Policies/Certificate of Insurance. Upon specific writt�n
request of the City, the Lessee shall pravide the Lessor with certified copies
of all policies of insurance as required above. In the absence af a specific
written request, the Lessee shall provid� the Lessor with Certificates of
Insurance shawing the Lessee has, at all times, the insurance coverage
required by the Lease. Unless notice is given ta Lessee otherwise, such
Certificates af insurance shall be provided to the Marine 8� Aviation Director.
The first Certificate of Insurance required by the lease shall be provided to the
Marine & Aviation Director before occupancy of the demised promises by the
Lessee.
Frank Chivas Lease 13
Exhibit "C'
GUARANTY OF PAYMENT OF RENT UNDER LEASE AGREEMENT
Guaranty is made this day of '/, 2011, by Frank Chivas, City of
� �
Clearwater, Caunty of Pinellas, State of Florida, herein referred to as "Personal
Guarantors"; being the Lessee's respectively, of the Restaurant
herein referred to as "Obligor"; to the CITY OF CLEARWATER, C/0 CITY ATTORNEY,
P.O. BOX 4748, CLEARWATER, FLORIDA 33758, herein referred to as "Obligee".
RECITALS
1. Obligee has leased premises at 25 Causeway Blvd. To Obligor, whose business
address is 25 Causeway Blvd., City of Clearwater, Caunty �f Pinellas, State of
Florida, for use by Obligor in conducting its business of a restaurant.
2. The lease is conditioned upon guarantors giving security for payment of rent
thereunder in the form of a personal guaranty.
SECTION ONE
STATEMENT OF GUARANTY
Guarantors guarantee payment of rent under the attached lease agreement
pursuant to the terms thereof. If obligor defaults in the payment of any installment of
rent, guarantors shall pay the amount of such installment within 3p days after receipt of
notice of default and demand for payment. Guarantor's liability hereunder shall not be
affected by reason of any extension of time for payment of any installm�nt granted by
obligee to obligor.
Frank Chivas Lease 14
SECTION TWO
DURATION
This guaranty shall not be revoked during the three year term of the lease.
Thereafter, if the lease is renewed on the same terms, this guaranty shall remain in
force until receipt by obligee of written notice of revocation from guarantors, or until
terminated pursuant to Sectian three hereof. Renewal of the lease on different terms
shall, at the optian of the guarantors, operate to terminate this guaranty as of the end of
the three year lease periad.
SECTION THREE
LIMITATION OF LIABILITY
The maximum amount recoverable by obligee from guarantors pursuant to this
guarantee is $93,060.00, which amount is constitutes the amount due an rent during the
whole lease-term without taking into account the CPI. If the aggregate af payments
made by guarantors her�under reaches the above-mentioned amaunt, this guaranty
shall terminate immediately.
SECTION FOUR
WAIVER NOTICE OF ACCEPTANCE
Notice of acceptance of this guaranty is expressly waived.
IN WITNESS WHEREOF, guarantors have executed this guaranty at Clearwater
Municipal Marina the day and year above written.
� `
Guarantor — Frank Chivas
Frank Chivas Lease 15