FIRST AMENDMENT TO LEASE AND USE AGREEMENTFIRST AMENDMENT TO LEASE AND USE AGREEMENT BETWEEN
CITY OF CLEARWATER AND FIELDS, INC. D/B/A BAREFOOT BEACH HOUSE
This First Amendment to the Lease and Use Agreement ("First Amendment") is made as
of this '1 day of April 2024 by and between the City of Clearwater, Florida, a municipal
corporation ("Lessor") and Fields, Inc. a Florida corporation d/b/a/ BareFoot Beach House
("Lessee").
WHEREAS, the Lessor and Lessee entered into that certain Lease and Use Agreement
dated December 2, 2014 for the Lessee to operate and maintain a Food Concession Complex on
the Property described therein, and commonly known as the Barefoot Beach House
("Agreement"); and
WHEREAS, the Lessee has successfully met all parameters of the Agreement providing
exceptional service for visitors and guests of Clearwater Beach; and
WHEREAS, the City Manager extended the term of the Agreement an additional five
years through December 31, 2024 pursuant to Section 1 of the Agreement; and
WHEREAS, the Lessee has provided necessary maintenance to public restrooms on
Clearwater Beach as part of the Agreement; and
WHEREAS, the Lessee and Lessor desire to extend the term of the Agreement and to
include additional capital funding for the repair of concession facilities and public restrooms on
Clearwater Beach and to provide for additional rental income; and
WHEREAS, the Lessee and Lessor have a separate lease and use agreement for the
operation and management of the Pier 60 Concession Complex which will end on February 28,
2027;
WHEREAS, the City desires to have both agreements (BareFoot Beach House and Pier 60
Concession Complex) terminate on the same date; and
WHEREAS, the Parties desire to amend the Agreement to reflect the terms as provided
for in this First Amendment.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
Parties agree as follows:
1) Recitals. The foregoing recitals are true and correct and are hereby incorporated in
and form a part of this First Amendment.
2) Section 1— Lease Term shall be amended as follows:
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1. Lease Term. The term of this Agreement is for a term of five (5) years,
beginning on the 1st day of January, 2015 and ending on the 31st day of
December, 2019. As referred to in this Agreement, an "Agreement Year" is that
year that commences on the first day of January of each year and terminates on
the thirty-first day of December of each year during the term of this Agreement.
Reference to the City Manager throughout this Agreement refers to Lessor's City
Manager or his designated agent.
The City Manager, in its sole discretion, may extend this Agreement for one (1)
additional five (5) year period ("First Renewal"), on the same terms and conditions
as are set forth herein without obtaining additional approval by the Clearwater
City Council.
The term of the Agreement shall extend for an additional two (2) year two (2)
month period, from January 1, 2025 through February 28, 2027 ("Second
Renewal')
3) Section 5 shall be amended as follows:
5. Rent. The Lessee hereby covenants and agrees to pay rent for the Food
Concession Complex as follows:
(a) Base Rent 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 Agreement Total Minimum Rental Monthly Payments
1- 10 § $100,008 annually $8,334 per month
11-12 $120,000 annually $10,000 per month
13 (January and February only) $10,000 per month
(b) Plus, as additional rent, Lessee shall pay annually at the end of each
agreement year, the percentage specified on the amount between the
figures listed below:
20% - Between $750,000 and $1 million in gross sales
22.5% - Between $1 million and $1.5 million in gross sales
25% - Between $1.5 million or more in gross sales
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Lessee shall pay all amounts due as stated above within thirty (30) days of the end
of each agreement year. Lessee further agrees to provide Lessor within fifteen (15)
days of the end of each monthly period during the term of this Agreement the
statement showing the amount of gross sales during the preceding month, as well
as a signed copy of the front and back of the Florida Department of Revenue Sales
and Use Tax Return. The statement used by the Lessee to report such sales will be
in such form as to be satisfactory to the City Manager, and must be certified as
correct by the Lessee's Chief Financial Officer, or his designee, showing the amount
of gross sales at and/or from the Demised Premises during the monthly periods
reported by the statement in the amount of year-to-date gross sales for the
calendar year.
The term "Gross Sales" as used in this paragraph 5(b) means the entire amount of
actual sales prices, whether for cash or otherwise, of all sales of food, services,
beverages, clothing, or other receipts whatsoever of all business conducted in, on
or from the premises, including mail or telephone orders received or filled at the
premises except for any beach rental transaction as defined below. 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 excess tax
imposed by any duly constituted governmental authority wherein Lessee is
regarded as the collecting agent. It expressly does not include any income
generated from the beach rentals, regardless of whether the BR transaction
occurred at the Food Concession Complex.
(c) Lessee shall pay Lessor two lump sum payments of (i) $50,000.00 payable
no later than January 1, 2025 and (ii) $50,000.00 payable no later than January 1,
2026. These lump sum payments shall be used by Lessor for capital
improvements of the Leased Premises.
4) Conflict in Terms. In the event of any conflict between the terms of this Amendment
and the Agreement, the terms contained in this Amendment shall supersede and
control.
5) Ratification; Full Force and Effect. Except as expressly modified and amended herein,
the terms of the Agreement are hereby ratified and affirmed and shall remain in full
force and effect.
6) Severability. If any provision of this Amendment shall, for any reason and to any
extent, be invalid or unenforceable, the reminder of this Amendment and the
application of such provision shall not be affected thereby, but rather shall be
enforced to the maximum extent possible.
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7) Headings. The captions and headings used throughout this Amendment are for
convenience of reference only and shall not affect the interpretation of this
Amendment.
8) Counterparts. This Amendment may be executed in two or more counterparts
and/or counterpart signature pages, each of which shall be deemed an original, and
all of which shall constitute one and the same instrument. In addition, the parties
may execute this Amendment by PDF of facsimile signature which shall be deemed
for all purposes original signatures.
9) Binding Effect. This Amendment shall inure to the benefit of and shall be binding
upon each of the parties hereto and their respective successors and assigns.
10) Entire Agreement. Collectively, the Agreement and this Amendment are the total
agreement of the parties and replaced any prior negotiations, understandings or
agreements among the parties, whether written or oral, pertaining to the subject
matter hereto. Each of the parties acknowledges representation by counsel
throughout all of the negotiations which preceded execution of this Amendment,
and this Amendment has been fully executed freely and voluntarily with the consent
of and upon the advice of counsel. Each of the parties acknowledges that it has not
relied on any promise, covenant, representation, or warranty, express or implied, not
expressly set forth in this Amendment.
WITNESS:
Signature
Charissa Shatanoff
Print Name
831 Scotland Street
Address
Dunedin, FL 34698
City, State, Zip Code
Signatu
Rick Glass
Print Name
831 Bay Esplanade
Address
FIELDS, INC.
Steven F. Chandler, President
By: \—‘-'1,
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Lisa M. Chandler
Clearwater, FL 33767
City, State, Zip Code
CITY OF CLEARWATER, FLORIDA
Jen er P irrier Bruce Rector
City Manager Mayor
Approved as to form:
Melissa Isabel
Senior Assistant City Attorney
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Attest:
aft
Rosemarie CaII
City Clerk