LEASE AND USE AGREEMENT (2)LEASE AND USE AGREEMENT
This Lease and Use Agreement ("Agreement") is made and entered into this
day of tew►h®-✓ , 2026, by and between the CITY OF CLEARWATER, FLORIDA, a
municipal corporation of the State of Florida, whose address is Post Office Box 4748,
Clearwater, FL 33758-4748, hereinafter referred to as "Lessor" and Alexandra of
Clearwater Beach, Inc. a Florida corporation , , whose address is 615 Pinellas Street Unit
1 , Clearwater, FL 33757, hereinafter referred to as "Lessee" or "Contractor"
WITNESSETH:
That in consideration of the covenants herein contained, the granting of this
Agreement, 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 two described premises located in the City
of Clearwater, Pinellas County, Florida, to wit:
Barefoot Beach House
Food and beach accessory concession and restroom complex located at 332
S. Gulfview Blvd., Clearwater, Florida, as shown on Attachment A, attached
hereto and made part hereof.
Pier 60 Concessions
Food and beach accessory concession and restroom complex located at 10
Pier 60 Drive, Clearwater Florida, as shown on Attachment B, attached
hereto and made part hereof..
"Pier 60 Concessions" and "Barefoot Beach House" as shown on
the attachments are hereinafter known collectively as the "Concession and
Rental Area"; Concession and Rental Complex"; "Food Concessions"; or
"Concession Complex".
THE PARTIES HERETO HEREBY FURTHER COVENANT AND AGREE AS FOLLOWS:
1. Lease Term.
The term of this Agreement is for a term of five years, beginning on the 1St day of
March, 2027 and ending on the 29th day of February, 2032. As referred to in this
Agreement, an "Agreement Year" is that year that commences on the first day of
March of each year and terminates on the final day of February of each year during
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the term of this Agreement. Reference to the City Manager throughout this Agreement
refers to Lessor's City Manager or their designated agent.
The City Manager may renew this Agreement for three additional five-year periods,
on the same terms and conditions as are set forth herein, subject to performance and
City approval.
In the event the City determines it will NOT renew this Agreement as provided for
above, the City shall give written notice no later than 180 days prior to the expiration
date of the then current term. .
2. Use of Concession and Rental Complex.
The Complex is leased to Lessee solely for the following uses and no other use can
be made of the premises during the term without the written consent of the Lessor:
a. The Lessee shall have the exclusive right to sell the following merchandise at the
Food Concession Complex defined below and as permitted by applicable City
Ordinances and State Law:
i. Hot dogs, hamburgers, and other like hot food such as French fries, as may be
prepared using the grill and fryer;
ii. Ice cream;
iii. Cold sandwiches, both prepared and pre-packaged, cookies, popcorn, chips
and other such packaged food items;
iv. Any cold or hot non-alcoholic beverage;
v. Healthy food options (e.g. wraps, salads) in support of City of Clearwater
wellness initiatives;
vi. Sundry items and other personal beach recreational and clothing items, and
vii. Gifts and seasonal merchandise.
viii. Nothing herein shall prevent the Lessee from selling alcoholic beverages as
may be permitted by local and state law. The Parties acknowledge that at this
time, such sales are prohibited by law; however, in the event that changed, and
Lessee obtains appropriate licenses and approvals for such sale, this Lease
and Use Agreement shall not restrict such consumption and sales.
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b. The Lessee shall also have exclusive license within the areas described hereinto
rent beach chairs, lounges, cabanas, umbrellas, floats, side tables, and any other
beach equipment approved by the City Manager, subject to certain standards and
restrictions as further described herein, and serve food prepared at the
Concessions Complex. The equipment and food service may be used and occur
on City -owned property more particularly described as:.
Lots 1 through 32 including the area of beach between the platted Tots to the
high tide mark, inclusive, of Lloyd, White and Skinner Subdivision (the platted
lots are shown herein Attachment C: Barefoot Beach House Beach Equipment
Rental Area), less any of the above-described property used now or in the
future by the Lessor for other purposes (but not for other licensees), and subject
to certain concession rights held by the Hyatt Regency Clearwater Beach
Resort & Spa (the "Hyatt") to provide concessions within a facility open to the
public which provides towels, lockers, minimal beach sundries, and other beach
gear, but not including benches, beach chairs, lounges, umbrellas and side
tables. Said Hyatt facility is 1200 square feet, MOL, located directly west of the
Hyatt Regency Clearwater Beach Resort & Spa.
c. Lessee under this Lease shall act as concessionaire to provide beach chairs,
lounges, umbrellas, side tables and the level of services associated with the
Development Agreement, as amended, between the City of Clearwater and
Beachwalk Resort, LLC dated 12-10-2004 and recorded in the public records of
Pinellas County in O.R. Book 13996, Page 2409 ("Hyatt Development
Agreement"), said services being required to meet certain standards which shall
be set forth in this Lease as Attachment D (Hyatt Service Standards). Failure by
the concessionaire to meet the service standards set forth in Attachment ID, may
result in the preemption by the Hyatt of providing such services (as more
particularly provided for below) - only on that portion of beach directly west of the
Hyatt property as defined by two parallel lines running from the northern -most
boundary of the Hyatt property and the southern -most boundary of the Hyatt
property west to the mean high water mark of the Gulf of Mexico as more
particularly shown on Attachment E, attached hereto and made part hereof (Hyatt
Concession Area).
Lessee shall own, maintain and store all rental equipment used on Beach Rental
Areas at Lessee's expense.
d. The Lessee does not have the right to use the areas described to the exclusion of
the general public. The general public may enjoy these areas and has the right to
use their own beach accoutrements (i.e. chairs, umbrellas, shade
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structures/coverings and towels). The general public may not move or cause to
be moved any item already installed by the Lessee and the Lessee may not move
or cause to be moved any item already installed by a member of the general public.
The Lessee may not install or cause to be installed any item (chair, umbrella,
cabana or other shade structure/covering) within three feet of any previously
installed like item by a member of the general public as measured from the furthest
extent of any given item.
e. If Lessee fails to comply with the standards in Attachment D, the Hyatt may send
written notice to the Lessor specifying non-compliance, Lessor shall immediately
notify Lessee. Lessee shall have 30 days from the receipt of written notice by the
Lessor to Lessee to cure said non-compliance.
f. In the event that the non-compliance is not cured within 30 days of receipt of written
notice, the Lessee agrees that the Hyatt may thereafter provide beach rental
services including the rental of beach chairs, lounges, umbrellas, side tables and
the level of services associated therewith, and shall retain all income derived from
the limited area described in Attachment E. This partial right of termination is in
addition to the rights of termination otherwise set forth in this Agreement but shall
not constitute an Event of Default as defined below.
g.
Solicitation; Amusement/Sound Devices.
The Lessee is specifically prohibited from hawking or other verbal solicitation of
any type at the Concession Rental Areas. No coin-operated amusement devices
or machines or any jukeboxes will be allowed. No inside or outside loudspeakers
or electronic amplifiers will be permitted.
h. Restroom and Park Maintenance and Standards.
i. The Lessee is responsible for the cleanliness and daily maintenance of the
public restrooms, at Lessee's expense, including the provision of all
toiletries/supplies for public restrooms at 332 South Gulfview Boulevard, 410
South Gulfview Boulevard, 10 Pier 60 Drive and Rockaway restrooms at 532
Mandalay Avenue. Lessee shall provide bathroom attendants at the Food
Concession Complex bathrooms during peak times of the year and provide for
a daily maintenance log on when cleanliness and supplies are checked. The
lessee shall further be responsible to empty trash containers at Pier 60 Park
once per day, replace can liners, and dispose of such trash in an area as
designated by the City.
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ii. Restrooms at the Concession Complex will be open and available to the public
during all hours the concession stand is open for business.
iii. Restrooms shall be stocked and cleaned to meet Pinellas County Health
Department standards and to the satisfaction of City staff. The Lessor reserves
the right to inspect the restrooms to assure the cleanliness standard is in
compliance with the health department orother legal standards. Failure of
Lessee to maintain health department standards for a food vendor as required
by law, including but not limited to Florida Statute, Chapter 509 as it currently
exists oras it may be amended, shall be considered a breach of the Lease and
Use Agreement, unless immediately corrected by Lessee. 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 15 days of receiving any such reports. If the Lessor alleges
a failure to maintain health department standards separate from any health
department inspection, the Lessor shall provide the Lessee immediate notice
specifying the alleged failure and permit Lessee to correct any alleged breach.
The Lessor recognizes that the nature of public restrooms provided to the
general public can create instances of improper use of the bathroom by the
public without the immediate knowledge of Lessee, or in between regularly
scheduled restroom inspection by the Lessee. A failure to maintain health
department standards is only a material breach if:
1. Lessee willfully refuses to comply with health department requirements or
standards.
2. Lessee willfully refuses to correct a health department standards violation
requested by the Lessor or the health department.
3. Lessee willfully and repeatedly fails to provide restrooms that meet health
department standards, causing the closure (for any length of time) of the
restrooms to the public.
4. In the event of any dispute between the Lessee and the Lessor in regard to
standards, the health department standards or other applicable law shall
take precedence.
5. In the event of a material breach, Lessor, at its option, may exercise any
one of the remedies set forth under Section 20).
iv. Lessee shall be responsible for all operational costs of the restrooms including,
but not limited to, cleaning supplies, toilet paper, paper towels, and soap.
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v. Lessee shall be responsible for all utility costs associated with therestrooms
including, but not limited to, electricity, heat, water and sewer, and refuse
collection.
i. Business Expenses.
The Lessee is responsible for providing all equipment and supplies needed to
operate the Food Concession Complex at Lessee's expense.
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Capital Investment & In -Kind Services.
Lessee shall provide capital investment in the amount of $100,000 per year for
maintenance repairs to beach concessions, restrooms, and maintenance building
as determined by the Lessor as provided for in Section 10.
k. Operations; Hours.
The hours of operation for the Concession and Rental Area and restrooms at the
Leased Premises shall be no earlier than 6:00 a.m., with a minimum requirement
that the Food Concession Complex shall be open at least 70 hours per week. The
beach rental equipment shall be collected from the Beach Rental Area and stored
in an area mutually agreed to by the Parties no later than one hour after sunset or
as otherwise agreed to in writing by Lessor. The use of equipment or vehicles on
the beach will be permitted in accordance with the City's policies, as may be
amended from time to time by the City Manager, for distribution and pickup of
beach equipment and restroom maintenance only.
3. Product Pricing.
The Lessor reserves the right to review and approve prices to be charged for all sale
and rental items. A list of current prices must be submitted within 30 days of the date
of this Agreement, and within 30 days of any substantial changes to food and
beverage prices and beach rental prices.
4. Parking.
The Lessor will provide at no charge to Lessee fifteen annual parking spaces for use
by Lessee's employees at the Concession Rental Complex during the term of this
Agreement, the location of which will be at the determination of the Lessor. Lessee
understands that the approved use of these spaces is subject to change based on
other municipal needs and, therefore, Lessor reserves the right to recapture these 15
parking spaces as needed. The method of marking any reserved parking spaces must
be coordinated and approved by the City Public Works Department.
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5. Rent.
The Lessee hereby covenants and agrees to pay rent for the 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 - 5
$240,000 annually
$20,000 per month
In each subsequent renewal term of the agreement the Licensee will pay an
additional three percent as follows:
6 - 10
$247,200 annually
$20,600 per month
11 - 15
$254,616 annually
$21,218 per month
16 - 20
$262,254 annually
$21,854.50 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:
i. 20 percent - Between $1.5 million and $1,999,999 million in gross sales.
ii. 22.5 percent - Between $2 million and $2,999,999 million in gross sales.
iii. 25 percent - $3 million or more in gross sales.,
c. Lessee shall pay all amounts due as stated above within 30 days of the end of
each agreement year. Lessee further agrees to provide Lessor within 20 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.
d. 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
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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.
e. All sales shall be recorded on a POS system and shall be maintained for three
years for review by Lessor's auditor. The Lessee shall maintain an adequate set
of books and records of its operation of the business of renting beach equipment
and the sale of food, beverages and sundries, and his books and records must be
provided to the City Manager upon request.
6. Beach Rental Monthly Payment.
As consideration for the license to utilize the Beach Rental Areas and for the exclusive
right of beach concessions, as described herein, Lessee shall pay to Lessor, on a
monthly basis, 50 percent of the monthly gross sales for all beach rentals. This
payment will be due within 20 days of the preceding month. The final payment shall
be made by Lessee within 20 days of the end of Agreement term. The Lessee will
provide the Lessor, within 20 days of the end of each monthly period during the term
of the Agreement, a 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 Section 6 means the entire amount of the
actual sales price, whether for cash or otherwise, of all beach chairs, cabanas,
umbrellas, floats and other receipts whatsoever from all beach rental business
("Beach Rental Transactions") conducted in, on or from the Leased Premises and
Beach Rental Areas as per this Agreement. No deduction shall be allowed for
uncollected or uncollectible credit accounts. Such term does not include, however,
any sums collected and paid out for any sales or excise tax imposed by any duly
constituted governmental authority wherein Lessee is regarded as the collecting
agent.
7. Clearwater Beach Patrol Lifeguards.
In addition to any other payments contemplated herein, the Lessee will additionally
provide $5,000 per year of this Agreement to the Clearwater Beach Patrol Lifeguards,
in furtherance of supporting the safety of visitors to Clearwater Beach; payable by
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January 30th for each year of the Agreement. Such payment shall not be considered
Additional Rent.
8. Annual Gross Sales.
The Lessee agrees to submit an audited certification of annual gross sales, as certified
to by a Certified Public Accountant, within 30 days of the end of each calendar year.
The scope of the audit must include the Lessee's compliance with the terms of the
Agreement to disclose the gross sales at or from the demised premises. The
statement shall be prepared according to generally accepted accounting principles
and practices, showing in all reasonable detail the amount of gross sales during the
prior Agreement year. The Lessee also agrees to provide at the same time as the
statement regarding annual gross sales, pertinent depreciation and amortization
schedule as filed with the Internal Revenue Service for the prior year.
9. Amounts Due from Lessee to Lessor.
Any amount due from Lessee to Lessor under this Agreement which is not paid when
due shall bear interest at the maximum allowable legal rate from date due until date
paid, together with a late charge of five percent of any amount due, to cover Lessor's
extra expenses involved in collecting such delinquency; provided that such interest
and late charges shall be automatically reduced by such amount as necessary to
cause such charges to be in compliance with usury laws. The late charge must be
paid within 30 days of the day the delinquent payment was due.
10. Capital Improvements.
For capital improvements and renovations to the Concession Complex the Lessee will
pay to the City an amount of $100,000 annually, payable by January 30th of each year
of the contract.
The Lessor will coordinate proposed improvements or renovations projects needed at
the concession complex. with the Lessee as to minimize the disruption of business
operations. The Lessor will construct any planned improvements in a timely manner
including all ADA requirements.
11. Observance of Laws and Ordinances; Encumbrances; Assignment.
a. Lessee agrees to observe, comply with, and execute promptly at its expense
during the Lease Term, all laws, rules, requirements, orders, directives, codes,
ordinances and regulations of governmental authorities and agencies and of
insurance carriers which relate to its use or occupancy of the Leased Premises.
The Lessee hereby covenants and agrees to make no unlawful, improper or
offensive use of the leased premises.
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b. Lessee further covenants and agrees not to assign, mortgage, 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, mortgaging,
pledging, hypothecating, or subletting shall be at the Lessor's sole discretion, and
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 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, 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 and 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 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 Agreement, lessee shall
promptly 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 years of the proposed assignee. This information shall
be in writing and 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 for no more than
once in an agreement year unless specifically consented to in writing by Lessor.
c. In the event of an assignment of this Agreement contrary to Paragraph 11.b., if the
new owner is a private or public corporation, Lessor shall promptly advise Lessee
if it has any objections thereto and the reasons, therefore. In the event Lessor
objects, it has the right to terminate this Agreement any time after such change in
control by giving Lessee 90 days prior written notice of such termination. Lessee
shall not permit any business to be operated in or from the premises by any
concessionaire or Licensee.
d. The Lessee hereby covenants and agrees to promptly and continuously comply
with all regulations and order of the Health Department and health officers of the
local, state and national governments; and Lessee hereby covenants and agrees
to keep, operate, and maintain the concession in such a manner as to include any
warnings of major violations or notices to show cause being issued by a regulatory
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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 15 days of receiving any such
reports. The Lessee shall submit a copy of the approved renewal of Health
Department certificate within 30 days after renewal.
e. Lessee shall obtain and maintain a beach vehicle agreement to authorize the use
of off-highway vehicles as defined in s. 317.0003, Florida Statutes in compliance
with s. 161.58, Florida Statutes, for the removal of rental equipment.
12. Taxes; Licenses; Permits.
Lessee agrees that it will promptly pay all ad valorem real property taxes and personal
property taxes that may be assessed against the Leased Premises during the term of
this Agreement (excluding any taxes assessed for the public restrooms at all
locations). Lessee further agrees that it will pay if applicable, 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 the operation of the business conducted on the leased premises, which are
required by law. It is further agreed by the Lessor that nothing herein shall obligate
Lessee to pay or to reimburse Lessor for the payment of assessments for permanent
improvements, including but not limited to sidewalks, sewers, and streets, that would
normally accrue to the Demised Premises.
Lessee is responsible for the payment of all taxes including federal, state, and local
taxes related to or arising out of Lessee's services under this Agreement, including by
way of illustration but not limitation, federal and state income tax, Social Security tax,
unemployment insurance taxes, and any other taxes or business license fees as
required. If any taxing authority should deem Lessee or Lessee employees an
employee of the City or should otherwise claim the City is liable for the payment of
taxes that are Lessee's responsibility under this Agreement, Lessee will indemnify the
City for any tax liability, interest, and penalties imposed upon the City.
13. Utilities.
The Lessee hereby covenants and agrees to pay all bills for electrical, gas, water,
sewer, heat, refuse collection and other services to the Concession Buildings when
due. Said utilities shall be directly billed to the Lessee and be individually metered for
the premises. Any deposits for such utilities shall be the sole responsibility of the
Lessee. Cost for public restrooms at 410 S. Gulfview Blvd. and 532 Mandalay Ave.
will be paid for by the City.
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14. Waste.
Lessee will use biodegradable materials whenever feasible.
15. Maintenance; Capital Repairs.
Lessee shall keep the foundation, outer walls, roof and buried conduits of the Leased
Premises in good repair. Lessee shall keep the inside of said premises and the interior
doors, windows and window frames of said premises in good order, condition and
repair and also keep the premises in a clean, sanitary and safe condition in
accordance with law and in accordance with all directions, rules and regulations of
governmental agencies having jurisdiction. The Lessee shall be responsible for
providing all light bulbs used on the premises. The plumbing facilities shall not be used
for any other purposes than that for which they are constructed and no foreign
substances of any kind shall be thrown therein, and the expense of any breakage,
stoppage or damage resulting from the violation of this provision shall be borne by the
Lessee. The heating and air conditioning system and plumbing facilities shall be under
the control of Lessee, and Lessee agrees that all operation, upkeep, repairs shall be
at the Lessee's expense unless a capital repair or replacement is necessary at which
point Lessor shall utilize the capital improvement dollars as provided for in Section 10.
In the event Lessor pays any monies required to be paid by Lessee hereunder, Lessor
shall demand repayment of same from Lessee and Lessee shall make payment within
10 days of receipt of said demand. Lessee's failure to make such repayment within
the 10 -day period shall constitute a default under the terms of this lease and unpaid
amounts shall become additional rent due. Lessee will provide all equipment
necessary for the operation of the Food Concession Complex and Beach Equipment
Rental. Lessee will pay all normal day-to-day repairs and maintenance costs, being
certain that any material used in repair and maintenance will be equal to or better than
that originally provided, and all required insurance premiums. In general Lessee shall,
at their expense, at all times during the term of this agreement, keep the premises and
all improvements and facilities in good order, repair and condition. Nothing in this
Lease shall obligate Lessee for any maintenance or capital repairs to the bathroom at
410 South Gulfview Boulevard and 532 Mandalay Ave.
16. Trash.
Lessee will be responsible for picking up and disposing of all trash, garbage, and other
debris, whether or not initiated from the sales of the food complex, within 100 feet of
the Leased Premises. Lessee is authorized to place trash cans in the immediate area
of the Leased Premises, said trash cans to be maintained by the Lessee.
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17. Insurance; Indemnification.
The Lessee shall, at its own cost and expense, acquire and maintain (and, if applicable
to this Agreement, cause any sub -lessees, contractors, and/or subcontractors to
acquire and maintain) during the term with the Lessor, sufficient insurance to
adequately protect the respective interest of the parties. Coverage shall be obtained
with a carrier having an AM Best Rating of A -VII or better. In addition, the Lessor has
the right to review the Lessee's deductible or self-insured retention and to require that
it be reduced or eliminated.
a. Specifically, the Lessee must carry the following minimum types and amounts of
insurance on an occurrence basis or in the case of coverage that cannot be
obtained on an occurrence basis, then coverage can be obtained on a claims -
made basis with a minimum three-year tail following the termination or expiration
of this Agreement:
i. Commercial General Liability Insurance Coverage, including but not limited
to, premises operations, products/completed operations, products liability,
contractual liability, advertising injury, personal injury, death, and property
damage in the minimum amount of $1,000,000 per occurrence and $2,000,000
general aggregate. $500,000 damage to rented premises sublimit is
acceptable given the lessee's reimbursement to the city for property insurance
premiums."
ii. Commercial Automobile Liability Insurance coverage for any owned, non -
owned, hired or borrowed automobile is required in the minimum amount of
$1,000,000 combined single limit.
iii. Unless waived by the State of Florida and proof of waiver is provided to the
City, statutory Workers' Compensation Insurance coverage in accordance
with the laws of the State of Florida, and Employer's Liability Insurance in
the minimum amount of $1,000,000 each employee each accident, $1,000,000
each employee by disease, and $1,000,000 disease policy limit. Coverage
should include Voluntary Compensation, Jones Act, and U.S. Longshoremen's
and Harbor Worker's Act coverage where applicable. Coverage must be
applicable to employees, contractors, subcontractors, and volunteers, if any.
iv. Commercial Property Insurance policy (or a Business Owner's Policy)
covering all Business Personal Property, trade fixtures, inventory, and
improvements and betterments belonging to the Lessee located on or within
the Leased Premises. Such insurance shall be written on a "Special Form" or
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"All Risk" basis and shall be maintained in an amount equal to not less than one
hundred percent (100%) of the full replacement cost of the insured property.
Additionally, Lessee agrees to provide waiver of subrogation in favor of the City
of Clearwater per the below paragraph.
v. The Lessor will maintain Property Insurance and Flood Insurance on a replacement
cost basis on the building(s) or structure(s). The Lessor reserves the right to insure
the property through self-insurance or any other insurance method at its discretion
during the term of this Lease. Lessee agrees to reimburse the Lessor for such yearly
cost of Property Insurance and Flood Insurance premiums. The Lessor shall bill the
Lessee by providing invoices in the applicable increments. The current term of
insurance is October 1 to October 1. Lessee also agrees to reimburse the Lessor for
any deductibles or self-insurance co -pays in the event of a property or flood loss.
vi. The Lessor will maintain Boiler and Machinery Insurance if the buildings or
structures include boiler(s), pressure vessel (s) or air conditioning/heating equipment.
The Lessor reserves the right to insure the Boiler and Machinery items through self-
insurance or any other insurance method at its discretion during the term of this Lease.
Lessee agrees to reimburse the Lessor for such yearly cost of Boiler and Machinery
Insurance premiums. The Lessor shall bill the Lessee by providing invoices in the
applicable increments. The current term of insurance is October 1 to October 1.
Lessee also agrees to reimburse the Lessor for any deductibles or self-insurance co -
pays in the event of a loss.
vii. Waiver of Subrogation with regard to any policy of insurance that would pay
third party . losses, Lessee hereby grants City a waiver of any right to
subrogation which any insurer of the Lessee may acquire against the City by
virtue of the payment of any loss under such insurance. Lessee agrees to
obtain any endorsement that may be necessary to affect such waiver, but this
provision shall apply to such policies regardless of whether or not the City has
received a waiver of subrogation endorsement from each insurer. The above
insurance limits may be achieved by a combination of primary and
umbrella/excess liability policies.
b. Other Insurance Provisions:
i. Prior to the execution of this Agreement/Contract, and then annually upon the
anniversary date(s) of the insurance policy's renewal date(s) for as long as this
Agreement/Contract remains in effect, the Lessee will furnish the Lessor with a
Certificate of Insurance(s) (using appropriate ACORD certificate, SIGNED by
the Issuer, and with applicable endorsements) evidencing all of the coverage
set forth above and naming the Lessor as an "Additional Insured" on the
Commercial Liability Insurance policy. In addition, when requested in writing
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from the Lessor, Lessee will provide the Lessor with certified copies of all
applicable policies. The address where such certificates and certified policies
shall be sent or delivered is as follows:
City of Clearwater
Attn: Parks and Recreation Department
P.O. Box 4748
Clearwater, FL 33758.4748
ii. Lessee shall provide 30 days written notice of any cancellation, non -renewal,
termination, material change or reduction in coverage.
iii. Lessee's insurance as outlined above shall be primary and non-contributory
coverage for Lessee's negligence.
iv. Lessee agrees that the Lessor reserves the right to appoint legal counsel for
any and all claims that may arise related to this Agreement or performance
under this Agreement.
v. Lessee shall defend, indemnify, save and hold the Lessor, its employees,
officers, or directors harmless from any and all claims, suits, judgments and
liability for death, personal injury, bodily injury, or property damage, arising
directly or indirectly, including legal fees, court costs, or other legal expenses;
except, for such claims of, or damages resulting from, gross negligence, or
willful, wanton or intentional misconduct of the Lessor or its employees, officers,
or directors or for statutory violation or punitive damages, except and to the
extent the statutory violation or punitive damages are caused by, or result from,
the acts or omissions of the Lessee or any of the Lessee's employees,
representatives, or agents.
vi. The stipulated limits of coverage above shall not be construed as a
limitation of any potential liability to the Lessor, and failure to request
evidence of this insurance shall not be construed as a waiver of Lessee's
obligation to provide the insurance coverage specified.
18. Destruction of Premises.
If at any time during the term of this Agreement, the building or premises or any part,
system or component hereof (herein 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 to the condition as good as the same was
immediately prior to such damage or destruction at the Lessee's risk and expense,
utilizing Insurance proceeds as required hereunder, and in accordance with plans and
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specifications mutually agreed upon by the Parties 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. Lessor shall retain control and oversight of the rebuilding as
the property owner. 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 partial damage or destruction, the monthly guaranteed rent
shall abate until commencement of business, after receipt of all building permits,
whichever is sooner. Lessor shall not unreasonably withhold building permits Lessee
applies for which are necessary to repair such damage or destruction.
The Lessee will be allowed to operate a mobile or portable service during the time of
repair or reconstruction in accordance with the law, and upon approval from the City
Manager at which point Base Rent is due and payable by Lessee.
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
Lessor may terminate this Agreement as of the date of such damage, or upon 30 days
written notice to the Lessee. Should Lessor choose not to rebuild, Lessor shall still be
entitled to applicable insurance proceeds as compensation for the Leased Premises
asset.
Nothing in this section shall apply to losses resulting from damage or destruction to
Lessee's property utilized, including but not limited to concession goods,
merchandise, and equipment, for which Lessee is solely responsible for obtaining
insurance coverage.
19. Default.
a. A party will be in default if that party:
i. is or becomes insolvent or is a party to any voluntary bankruptcy or receivership
proceeding, makes an assignment for a creditor, or there is any similar action
that affects Lessee's capability to perform under the Agreement;
ii. is the subject of a petition for involuntary bankruptcy not removed within 60
calendar days;
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iii. conducts business in an unethical manner or in an illegal manner; or
iv. fails to carry out any term, promise, or condition of the Agreement
b. Lessee will be in default of this Agreement if Lessee is debarred or suspended in
accordance with the Clearwater Code of Ordinances Section 2.565 or if Lessee is
debarred or suspended by another governmental entity.
c. Notice and Opportunity to Cure. In the event a party is in default then the other
party may, at its option and at any time, provide written notice to the defaulting
party of the default. The defaulting party will have 30 days from receipt of the notice
to cure the default; the 30 -day cure period may be extended by mutual agreement
of the parties, but no cure period may exceed 90 days. A default notice will be
deemed to be sufficient if it is reasonably calculated to provide notice of the nature
and extent of such default. Failure of the non -defaulting party to provide notice of
the default does not waive any rights under the Agreement. Nothing herein shall
limit the parties from extending the timeframe of this Opportunity to Cure in the
event of a casualty or destruction event of the premises.
d. Anticipatory Repudiation. Whenever the City in good faith has reason to question
Lessee's intent or ability to perform, the City may demand that Lessee give a
written assurance of its intent and ability to perform. In the event that the demand
is made and no written assurance is given within five calendar days, the City may
treat this failure as an anticipatory repudiation of the Agreement.
20. Remedies.
The remedies set forth in this Agreement are not exclusive. Election of one remedy
will not preclude the use of other remedies. In the event of default:
a. The non -defaulting party may terminate the Agreement, and the termination will be
effective immediately or at such other date as specified by the terminating party.
b. The City may purchase the services required under the Agreement from the open
market, complete required work itself, or have it completed at the expense of
Lessee. If the cost of obtaining substitute services exceeds the contract price, the
City may recover the excess cost by: (i) requiring immediate reimbursement to the
City; (ii) deduction from an unpaid balance due to Lessee; (iii) collection against
the proposal and/or performance security, if any; (iv) collection against liquidated
damages (if applicable); or (v) a combination of the aforementioned remedies or
other remedies as provided by law. Costs includes any and all, fees, and expenses
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incurred in obtaining substitute services and expended in obtaining
reimbursement, including, but not limited to, administrative expenses, attorneys'
fees, and costs.
c. The non -defaulting party will have all other rights granted under this Agreement
and all rights at law or in equity that may be available to it.
d. The City will not be liable for incidental, special, or consequential damages.
21. Breach of Contract During Emergency Recovery Periods for Natural Emergencies.
Pursuant to F. S. § 252.505, any vendor who breaches a contract for commodities or
services related to an emergency response for a natural _emergency during an
emergency recovery period shall pay a $5,000 penalty and damages, which may be
either actual and consequential damages or liquidated damages. As used in this
section, the term "emergency recovery period" means a 1 -year period that begins on
the date that the Governor initially declared a state of emergency for a natural
emergency.
22. Continuation During Disputes.
Lessee agrees that during any dispute between the parties, Lessee will continue to
perform its obligations until the dispute is settled, instructed to cease performance by
the City, enjoined or prohibited by judicial action, or otherwise required or obligated to
cease performance by other provisions in this Agreement.
23. Termination.
a. Termination for Convenience.
The City reserves the right to terminate this Agreement at its convenience, in part
or in whole, upon 30 calendar days' written notice.
b. Termination for Conflict of Interest.
The City may cancel this Agreement after its execution, without penalty or further
obligation, if any person significantly involved in initiating, securing, drafting, or
creating the Agreement for the City becomes an employee or agent of Lessee.
c. Termination for Non -Appropriation and Modification for Budgetary Constraints.
The City is a governmental agency which relies upon the appropriation of funds by
its governing body to satisfy its obligations. If the City reasonably determines, in
its sole discretion, that it does not have funds to meet its obligations under this
Agreement, the City will have the right to terminate the Agreement without penalty
on the last day of the fiscal period for which funds were legally available. In the
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event of such termination, the City agrees to provide written notice of its intent to
terminate 30 calendar days prior to the stated termination date.
d. Payment to Lessee Upon Termination.
Upon termination of this Agreement, Lessee will be entitled only to payment for
those services performed up to the date of termination, and any authorized
expenses already incurred up to such date of termination. The City will make final
payment within 30 calendar days after the City has both completed its appraisal of
the materials and services provided and received Lessee's properly prepared final
invoice.
24. Non -Waiver of Rights.
There will be no waiver of any provision of this Agreement unless approved in writing
and signed by the waiving party. Failure or delay to exercise any rights or remedies
provided herein or by law or in equity, or the acceptance of, or payment for, any
services hereunder, will not release the other party of any of the warranties or other
obligations of the Agreement and will not be deemed a waiver of any such rights or
remedies.
25. Indemnification/Liabilitv.
a. To the fullest extent permitted by law, Lessee agrees to defend, indemnify, and
hold the City, its officers, agents, and employees, harmless from and against any
and all liabilities, demands, claims, suits, losses, damages, causes of action, fines
or judgments, including costs, attorneys', witnesses', and expert witnesses' fees,
and expenses incident thereto, relating to, arising out of, or resulting from: (i) the
services provided by Lessee personnel under this Agreement; (ii) any negligent
acts, errors, mistakes or omissions by Lessee or Lessee personnel; and (iii) or
Lessee personnel's failure to comply with or fulfill the obligations established by
this Agreement. If applicable, this paragraph shall be construed in harmony with F.
S. § 725.06.
b. Lessee will update the City during the course of the litigation to timely notify the
City of any issues that may involve the independent negligence of the City that is
not covered by this indemnification.
c. The City assumes no liability for actions of Lessee and will not indemnify or hold
Lessee or any third party harmless for claims based on this Agreement or use of
Lessee -provided supplies or services.
d. Nothing contained herein in intended to serve as a waiver by the City of its
sovereign immunity, to extend the liability of the City beyond the limits set forth in
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Section 768.28, Florida Statutes, or be construed as consent by the City to be sued
by third parties.
26. City's Right to Recover Against Third Parties.
Lessee will do nothing to prejudice the City's right to recover against third parties for
any loss, destruction, or damage to City property, and will at the City's request and
expense, furnish to the City reasonable assistance and cooperation, including
assistance in the prosecution or defense of suit and the execution of instruments of
assignment in favor of the City in obtaining recovery.
27. Ownership.
All deliverables, services, and information provided by the Lessee or the City pursuant
to this Agreement (whether electronically or manually generated) including without
limitation, reports, test plans, and survey results, graphics, and technical tables,
originally prepared in the performance of this Agreement, are the property of the City
and will not be used or released by Lessee or any other person except with prior
written permission by the City.
28. Use of Name.
Lessee will not use the name of the City of Clearwater in any advertising or publicity
without obtaining the prior written consent of the City.
29. Risk of Loss.
Lessee agrees to bear all risks of loss, injury, or destruction of goods or equipment
incidental to providing these services and such loss, injury, or destruction will not
release Lessee from any obligation hereunder.
30. Safeguarding City Property.
Lessee will be responsible for any damage to City real property or damage or loss of
City personal property when such property is the responsibility of or in the custody of
or its employees.
31. Force Maieure.
Failure by either party to perform its duties and obligations will be excused by
unforeseeable circumstances beyond its reasonable control, including acts of nature,
acts of the public enemy, riots, fire, explosion, legislation, and governmental
regulation. The party whose performance is so affected will within five calendar days
of the unforeseeable circumstance notify the other party of all pertinent facts and
identify the force majeure event. The party whose performance is so affected must
also take all reasonable steps, promptly and diligently, to prevent such causes if it is
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feasible to do so, or to minimize or eliminate the effect thereof. The delivery or
performance date will be extended for a period equal to the time lost by reason of
delay, plus such additional time as may be reasonably necessary to overcome the
effect of the delay, provided however, under no circumstances will delays caused by
a force majeure extend beyond 120 calendar days from the scheduled delivery or
completion date of a task unless agreed upon by the parties.
32. Severability.
If any provision of this Agreement is declared void or unenforceable, such provision
will be severed from this Agreement, which will otherwise remain in full force and
effect. The parties will negotiate diligently in good faith for such amendment(s) of this
Agreement as may be necessary to achieve the original intent of this Agreement,
notwithstanding such invalidity or unenforceability.
33. Surviving Provisions.
Notwithstanding any completion, termination, or other expiration of this Agreement, all
provisions which, by the terms of reasonable interpretation thereof, set forth rights and
obligations that extend beyond completion, termination, or other expiration of this
Agreement, will survive and remain in full force and effect. Except as specifically
provided in this Agreement, completion, termination, or other expiration of this
Agreement will not release any party from any liability or obligation arising prior to the
date of termination.
34. Alterations and Improvements.
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 or delayed. 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 Lessor upon the expiration or 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. Lessee shall, at Lessee's expense, remove
all of Lessee's personal property and those improvements made by Lessee which
have not become the property of the Lessor, including trade fixtures and the like. All
property remaining on the Premises after the last day of the term of this lease shall be
conclusively deemed abandoned and may be removed by Lessor and Lessee shall
reimburse Lessor for the cost of such removal.
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35. Independent Contractor. It is expressly understood that the relationship of Lessee to
the City will be that of an independent contractor. Lessee and all persons employed
by Lessee, either directly or indirectly, are Lessee's employees, not City employees.
Accordingly, Lessee and Lessee's employees are not entitled to any benefits provided
to City employees including, but not limited to, health benefits, enrollment in a
retirement system, paid time .off or other rights afforded City employees. Lessee
employees will not be regarded as City employees or agents for any purpose,
including the payment of unemployment or workers' compensation. If any Lessee
employees or subcontractors assert a claim for wages or other employment benefits
against the City, Lessee will defend, indemnify and hold harmless the City from all
such claims.
36. Subcontracting. Lessee may not subcontract work under this Agreement without the
express written permission of the City. If Lessee has received authorization to
subcontract work, it is agreed that all subcontractors performing work under the
Agreement must comply with its provisions. Further, all agreements between Lessee
and its subcontractors must provide that the terms and conditions of this Agreement
be incorporated therein.
37.Assignment. This Agreement may not be assigned either in whole or in part without
first receiving the City's written consent. Any attempted assignment, either in whole or
in part, without such consent will be null and void and in such event the City will have
the right at its option to terminate the Agreement. No granting of consent to any
assignment will relieve Lessee from any of its obligations and liabilities under the
Ag reement.
38. Successor and Assigns, Binding Effect. This Agreement will be binding upon and inure
to the benefit of the parties and their respective permitted successors and assigns.
39. No Third -Party Beneficiaries.
This Agreement is intended for the exclusive benefit of the parties. Nothing set forth
in this Agreement is intended to create, or will create, any benefits, rights, or
responsibilities in any third parties.
40. Non -Exclusivity.
The City, in its sole discretion, reserves the right to request the materials or services
set forth herein from other sources when deemed necessary and appropriate. No
exclusive rights are encompassed through this Agreement outside of those specifically
granted pursuant to Section 2 of this Agreement.
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41. Amendments.
There will be no oral changes to this Agreement. This Agreement can only be modified
in a writing signed by both parties. No charge for extra work or material will be allowed
unless approved in writing, in advance, by the City and Lessee
42. Right to Inspect.
Lessee shall, at his expense, at all times during the terms of this Agreement, keep the
leased 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 leased 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.
43. Compliance with Applicable Laws.
a. General. Lessee must procure all permits and licenses and pay all charges and
fees necessary and incidental to the lawful conduct of business. Lessee must stay
fully informed of existing and future federal, state, and local laws, ordinances,
executive orders, and regulations that in any manner affect the fulfillment of this
Agreement and must comply with the same at its own expense. Lessee bears full
responsibility for training, safety, and providing necessary equipment for all Lessee
personnel to achieve throughout the term of the Agreement. Upon request, Lessee
will demonstrate to the City's satisfaction any programs, procedures, and other
activities used to ensure compliance.
b. Drug -Free Workplace. Lessee is hereby advised that the City has adopted a policy
establishing a drug-free workplace for itself and those doing business with the City
to ensure the safety and health of all persons working on City contracts and
projects. Lessee will require a drug-free workplace for all Lessee personnel
working under this Agreement. Specifically, all Lessee personnel who are working
under this Agreement must be notified in writing by Lessee that they are prohibited
from the manufacture, distribution, dispensation, possession, or unlawful use of a
controlled substance in the workplace. Lessee agrees to prohibit the use of
intoxicating substances by all Lessee personnel and will ensure that Lessee
personnel do not use or possess illegal drugs while in the course of performing
their duties.
c. Federal and State Immigration Laws. Lessee agrees to comply with the
Immigration Reform and Control Act of 1986 (IRCA) in performance under this
Agreement and to permit the City and its agents to inspect applicable personnel
records to verify such compliance as permitted by law. Lessee will ensure and
24
keep appropriate records to demonstrate that all Lessee personnel have a legal
right to live and work in the United States.
i. As applicable to Lessee, under this provision, Lessee hereby warrants to the
City that Lessee and each of its contractors will comply with, and are
contractually obligated to comply with, all federal - immigration laws and
regulations that relate to their employees (hereinafter "Lessee Immigration
Warranty").
ii. A breach of the Lessee Immigration Warranty will constitute as a material
breach of this Agreement and will subject Lessee to penalties up to and
including termination of this Agreement at the sole discretion of the City.
iii. The City retains the legal right to inspect the papers of all Lessee personnel
who provide services under this Agreement to ensure that Lessee or its
contractors are complying with the Lessee Immigration Warranty. Lessee
agrees to assist the City in regard to any such inspections.
iv. The City may, at its sole discretion, conduct random verification of the
employment records of Lessee and any subcontractor to ensure compliance
with the Lessee Immigration Warranty. Lessee agrees to assist the City in
regard to any random verification performed.
v. Neither Lessee nor any subcontractor will be deemed to have materially
breached the Lessee Immigration Warranty if Lessee or subcontractor
establishes that it has complied with the employment verification provisions
prescribed by Sections 274A and 2748 of the Federal Immigration and
Nationality Act.
d. Nondiscrimination. Lessee represents and warrants that it does not discriminate
against any employee or applicant for employment or person to whom it provides
services because of race, color, religion, sex, national origin, or disability, and
represents and warrants that it complies with all applicable federal, state, and local
laws and executive orders regarding employment. Lessee and Lessee's personnel
will comply with applicable provisions of Title VII of the U.S. Civil Rights Act of
1964, as amended, Section 504 of the Federal Rehabilitation Act, the Americans
with Disabilities Act (42 U.S.C. § 12101 et seq.), and applicable rules in
performance under this Agreement.
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44. Removal of Equipment.
Upon the termination or expiration of the Agreement for whatever cause, the Lessee
shall have 15 days to remove, at his own expense, its equipment, signs, insignia, and
other indicia of its tenancy or use.
45. Liens.
Lessee shall have no power or authority to permit mechanic's or materialrnen's liens
to be placed upon the Premises in connection with maintenance, alterations, or
modifications. Lessee shall, within 15 days after notice from Lessor, discharge any
mechanic's liens for materials or labor claimed to have been furnished to the Premises
on Lessee's behalf. Lessee agrees to indemnify and save harmless the Lessor by
reason of any mechanic's Tien which has not been discharged and which may be
asserted as a claim against the leased 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 100 percent of the cost of construction of
the contemplated improvements to the demised premises.
46. Eminent Domain.
If the whole or any part of the premises hereby leased shall be taken by any public
authority under power of eminent domain, then the term of this lease shall cease on
the part so taken from the date title vests pursuant to such taking, and the rent and
any additional rent shall be paid up to that day, and if such portion of the Demised
Premises is so taken as to destroy the usefulness of the premises for the purpose for
which the premises were leased, then from that day the Lessee shall have the right to
either terminate this lease or to continue in possession of the remainder of the same
under the terms herein provided, except that the rent shall be reduced in proportion to
the amount of the premises taken. The parties agree that the Lessee shall not be
entitled to any damages by reason of the taking of this leasehold or be entitled to any
part of the award for such taking, or any payment in lieu thereof.
47. VECHS.
Lessee acknowledges that it, it's applicants for employment, employees, or
volunteers, work or will work with children, the elderly, or the disabled. Therefore, if
not otherwise required to conduct background checks by law, Lessee voluntarily
agrees to register with the Florida Department of Law Enforcement ("FDLE") to
participate in the Volunteer & Employee Criminal History System ("VECHS") for
background checks, as authorized by the National Child Protection Act ("NCPA"), as
amended, and Florida Statute 9430542 (1999), as may be amended from time to
time. Lessee agrees to secure the highest level of background screening available
under VECHS, and that this level of background screening is necessary to effectively
26
screen out those not suitable for contact with children, the elderly or the
disabled. Lessee voluntarily agrees to require such screenings in accordance with
the processes and procedures set forth by the FDLE and the FBI in order to secure
criminal history information on its employees, volunteers and applicants. The Lessee
acknowledges that the VECHS program is not available to entities currently mandated
to obtain background checks by statute or other law. Lessee shall pay all costs
associated with such background checks and will submit an Affidavit of Criminal
Background Screening in substantially the form attached hereto, and incorporated
herein, as Attachment F. Lessee shall secure releases from screened parties, use
said criminal history information only as permitted by law and shall unilaterally make
the determination of a screened parties' fitness and suitability for working with
children, the elderly or the disabled. Lessor shall not be required to make such a
determination under any circumstance. Lessee shall submit the Affidavit of Criminal
Background Screening to Lessor prior to beginning its operations under this
agreement. If for any reason, including denial of eligibility by the Florida Department
of Law Enforcement, Licensee is unable to secure background checks in accordance
with the VECHS program, Licensee shall secure the highest level of background
screening allowed by law.
48. CPR Training.
Lessee agrees to provide CPR training and certification for at least one employee on
site per shift.
49. Mortgages.
This lease and the rights of the Lessee hereunder are hereby made subject and
subordinate to all bona fide mortgages now or hereafter placed upon the said
premises by the Lessor and any other owner provided, however, that such mortgages
will not cover the equipment and furniture or furnishings on the premises owned by
the Lessee. The Lessee further agrees to execute any instrument of subordination
which might be required by mortgagee of the Lessor.
50. Hinderance or Interruption.
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 leased premises for the term of the
Agreement without hindrance or interruption by Lessor.
27.
51. Notices.
Notices hereunder shall be given only by registered letter and shall, unless otherwise
expressly provided, be deemed given when the letter is 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.
To Lessee:
Alexandra of Clearwater Beach Inc.
615 Pinellas St..
Clearwater, FL 33757
Attn: Lisa Chandler
Steve Chandler
To Lessor:
City of Clearwater
P.O. Box 4748
Clearwater, FL 33756-4748
Attn: Art Kader
Director of Parks and Recreation
52. Certified Public Accountant.
if the Certified Public Accountant providing the annual audit required in this Agreement
is not an independent Certified Public Accountant, Lessee at the City Manager's
option, agrees to make all records of gross sales pertaining to this Agreement
available to an independent Certified Public Accountant chosen by the City Manager,
for the purpose of confirming the fair representation of the previously submitted audits.
Any such audit provided for in this paragraph may not go back for more than three
years. If an Independent Certified Public Accountant, chosen by the Lessor, audits
the business operated hereunder, and finds that a fair representation of the gross
revenues understates Agreement revenue due the Lessor, the cost of the independent
audit shall be borne by the Lessee; if the independent audit confirms the fair
representation of the Lessee or overstates Agreement revenue due to the Lessor, the
Lessor shall pay for the audit.
53. Signage.
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 Food Concession
Complex 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
Manager or their designee. However, the Lessee shall provide menu -type board or
boards to be placed inside the food concession area so that they will be plainly visible
to the public and list the food and drink items for sale with their corresponding prices.
Lessee also will place a sign inside the food concession area so it will be plainly visible
to the public, which states that the concession area and beach rentals are operated
by Lessee and not Lessor. The Lessor will be responsible for signs at the entrance of
the restrooms indicating appropriate gender. A sign denoting the price list of all beach
equipment rentals must be posted by the Lessee at the entrance to the Food
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Concession Complex as well as at one other point must post from which the rental of
beach equipment has heretofore been authorized.
54. Coin-operated Devices.
No coin-operated toilets or other coin-operated devices will be allowed in the
aforementioned restroom facilities except upon written authorization of the City
Manager. 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 Concession Area.
55. Public's Right.
Lessee's exclusive right, as referenced in Section 2 of this Agreement, to rent beach
equipment from the leased premises does not deny members of the public the right to
bring their own equipment for personal use.
56. Public Records Disclosure.
Lessee shall comply with Lessor's requests for documents to fulfill a public records
request, as may be required by Fla. Statute 119. All requests for public records will
be administered by Lessor.
IF THE LESSEE HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE LESSEE'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT: 727-562-4092,
Rosemarie.Call@myclearwater.com,112 S. Osceola Ave., Clearwater, FL 33756.
The Lessee's agreement to comply with public records law applies specifically to:
a. Keep and maintain public records required by the City of Clearwater (hereinafter
"public agency") to perform the service being provided by the Lessee hereunder.
b. Upon request from the public agency's custodian of public records, provide the
public agency with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the
cost provided for in Chapter 119, Florida Statutes, as may be amended from time
to time, or as otherwise provided by law.
c. Ensure that the public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law for the duration of the contract term and following completion of the contract if
the Lessee does not transfer the records to the public agency.
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d. Upon completion of the contract, transfer, at no cost, to the public agency all public
records in possession of the Lessee or keep and maintain public records required
by the public agency to perform the service. If the Lessee transfers all public
records to the public agency upon completion of the contract, the Lessee shall
destroy any duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements. If the Lessee keeps and maintains
public records upon completion of the contract, the Lessee shall meet all applicable
requirements for retaining public records. All records stored electronically must be
provided to the public agency, upon request from the public agency's custodian of
public records, in a format that is compatible with the information technology
systems of the public agency.
e. A request to inspect or copy public records relating to a public agency's contract
for services must be made directly to the public agency. If the public agency does
not possess the requested records, the public agency shall immediately notify the
Lessee of the request and the Lessee must provide the records to the public
agency or allow the records to be inspected or copied within a reasonable time.
f. The Lessee hereby acknowledges and agrees that if the Lessee does not comply
with the public agency's request for records, the public agency shall enforce the
contract provisions in accordance with the contract.
g.
A Lessee who fails to provide the public records to the public agency within a
reasonable time may be subject to penalties under Section 119.10, Florida
Statutes.
h. If a civil action is filed against a Lessee to compel production of public records
relating to a public agency's contract for services, the court shall assess and award
against the Lessee the reasonable costs of enforcement, including reasonable
attorney fees, if:
i. The court determines that the Lessee unlawfully refused to comply with the
public records request within a reasonable time; and
ii. At least eight business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the Lessee has
not complied with the request, to the public agency and to the Lessee.
i. A notice complies with subparagraph (h)2. if it is sent to the public agency's
custodian of public records and to the Lessee at the Lessee's address listed on its
contract with the public agency or to the Lessee's registered agent. Such notices
must be sent by common carrier delivery service or by registered, Global Express
30
J•
Guaranteed, or certified mail, with postage or shipping paid by the sender and with
evidence of delivery, which may be in an electronic format.
A Lessee who complies with a public records request within eight business days
after the notice is sent is not liable for the reasonable costs of enforcement.
Audits and Records.
Lessee must preserve the records related to this Agreement for five years after
completion of the Agreement. The City or its authorized agent reserves the right to
inspect any records related to the performance of work specified herein. In
addition, the City may inspect any and all payroll, billing or other relevant records
kept by Lessee in relation to the Agreement. Lessee will permit such inspections
and audits during normal business hours and upon reasonable notice by the City.
The audit of records may occur at Lessee's place of business or at City offices, as
determined by the City.
57. Background Check.
The City may conduct criminal, driver history, and all other requested background
checks of Lessee personnel who would perform services under the Agreement or who
will have access to the City's information, data, or facilities in accordance with the
City's current background check policies. Any officer, employee, or agent that fails the
background check must be replaced immediately for any reasonable cause not
prohibited by law.
58. Lessee shall not advertise any business not operated at, on, or from the premises
without the prior written consent of the City Manager or their designee.
59. Standards of Operation Provision.
Lessee shall keep and provide a copy of their standards of operation to Lessor within
30 days of the date of this Agreement. Standards of operation should include process
for money collection and accounting thereof; as well as items such as dress code,
equipment repair and replacement, training program for employees, maintenance
training and customer relations.
Since the Lessee and Lessor are in a relationship to serve the needs of the public and
at the same time be as profitable as possible for both parties, the Lessor reserves the
right to not only review standards of operations and intemal controls but also to make
suggestions and recommendations for improvement.
60. Beach Rental Equipment Condition.
To keep beach rental equipment in "new or as new condition". Lessee shall provide
a replacement and repair schedule for all rental equipment covered by this agreement.
31
New beach rental products, if offered, must be approved by the City Manager prior to
offering to the customers.
61. Attorney Fees and Costs.
Each Party shall be responsible for its own attorneys' fees and costs in the collection
of any delinquent rent or additional payments or in the enforcement of any provision
of this Lease.
62. Miscellaneous.
a. This contract shall bind the Lessor and its assigns or successors, and the Lessee
and assigns and successors of the Lessee.
b. It is understood and agreed between the parties hereto that time is of the essence
of this contract and this applies to all terms and conditions contained herein.
c. It is understood and agreed between the parties hereto that written notice sent by
certified or registered mail, or hand delivered to the premises leased hereunder,
shall constitute sufficient notice to the Lessee, and written notice sent by certified
or registered mail or hand delivered to the office of the Lessor shall constitute
sufficient notice to the Lessor, to comply with the terms of this contract.
d. The rights of the Lessor under the foregoing shall be cumulative, and failure on the
part of the Lessor to exercise promptly any rights given hereunder shall not operate
to forfeit any of the said rights.
e. The Lessee herewith covenants and agrees that no hazardous materials,
hazardous waste, or other hazardous substances will be used, handled, stored or
otherwise placed upon the property or, in the alternative, that such materials,
wastes or substances may be located on the property, only upon the prior written
consent of the Lessor hereunder, and only in strict accord and compliance with
any and all applicable state and federal laws and ordinances. In the event such
materials are utilized, handled, stored or otherwise placed upon the property,
Lessee expressly herewith agrees to indemnify and hold Lessor harmless from
any and all costs incurred by Lessor or damages as may be assessed against
Lessor in connection with or otherwise relating to said hazardous materials, wastes
or substances at any time, without regard to the term of this lease. This provision
shall specifically survive the termination hereof.
f. The laws of the State of Florida shall govern this Lease, and any action brought by
either party shall lie in Pinellas County, Florida.
32
g.
Lessee agrees that the premises shall be utilized as a public activity area, which
shall include a Safe Zone for lost children, transit stop, information dissemination
point, distribution point for City business and other City and civic sponsored
promotions and entertainment activities. The Lessor can restrict any activity,
including but not limited to entertainment, promotions, items for sale or rent by
Lessee on the premises that are not acceptable as determined by the City
Manager at their sole discretion. Failure of the Lessee to make any changes
required by the City Manager will result in default and Lessor shall be entitled to
all the remedies provided for in this agreement.
h. It is understood that the Lessor has an agreement with a non-profit group entitled
"Sunsets at Pier 60" to promote tourism, entertainment and events on Pier 60 and
in Pier 60 Park. This organization has the right to operate and use portions of Pier
60 for retail vendors and service providers, as well as the park pavilion and open
grass areas for events and activities. This agreement will not be in conflict with or
items sold by the Lessee.
33
ret_
IN WITNESS WHEREOF, the parties hereto have set their hands and seal this 3 day
of okevw-! , 2026.
Signed:
WITNESS
Signature
Elul J3lai'v
Print Name
kaiL 8(FAIStrict
Signature
(1kax* JL1tkfto-
Print Name
Countersigned:
Bruce Rec
Mayor
Approved as to form:
Melissa Isabel
Assistant City Attorney
34
By:
FIELDS, INC.
Steven F. Chandler, President
ta• akaltel
By:
Lisa M. Chandler
CITY OF CLEARWATER, FLORIDA
ennrfer Poirrier
City Manager
Rosemarie CaII
City Clerk
ATTACHMENT A
LEASED PREMISES: BAREFOOT BEACH HOUSE
N. T.S.
This is not a survey
BAREFOOT
8EACH HOUSE
BAREFOOT BEACH HOUSE
RESTROOMS
POO someio
C
CITY OF CLEARWATER
PARKS AND RECREATION
DRAWN BY
Lee Cheek
CHECKED BY
Attachment A
Barefoot Beach House
Leased Premisies
2.zH)$ Att.cI....t N
wart
1 OF 1
29S - 1SE
$•3'202C
IUCT•TVMfI. NG 07 -
DATE DRAWN
35
N. 7:S.
ATTACHMENT B
LEASED PREMISES: PIER 60 CONCESSIONS
3,
CONCE5.510N
.5TAND
*et
r -
Sep
IV t r
ff,1-.111.
Pier 60
Parking Lot
This Is not a survey
CITY OF CLEARWATER
PARKS AM RECREATION
DRAWN BY
Lee Cheek
CHECKED BY
Attachment B
Pier 60 Concessions
Leased Premisies
11115. r
11120481ILASImiseset $1
1 OF 1
SIKINTINKSPANO 07 29S 15E
DATE DRAWN 1143,2026
36
ATTACHMENT C
BEACH EQUIPMENT
RENTAL AREA
This is not a survey
C
CITY OF CLEARWATER
PARKS AND RECREATION
DRAWN EY
Lee Cheek
CHECKED BY
Attachment C
Beach Equipment Rental Area
211164H_Atrelsrt OS
MIST
1 OF 1
sect-TINNY-ro 0 07 • 29S • 1 SE
DATE DRAWN S131202E
BEACH EQUIPMENT RENTAL AREA
37
ATTACHMENT D
HYATT SERVICE STANDARDS
Attachment D
HYATT CLEARWATER BEACH RESORT
BEACH CONCESSION CRITERIA QUALITY STANDARDS
FURNITURE (1001
Chaise lounge
Manufacturer: Tropitone Spinnaker chaise lounge chair with arms (Model #159932) (if
suitable for beach use)
Otherwise: Steamer/Deck Chair — Canvas
Ntanufa cturer: Harrison & Todd
UMBRELLAS (60)
Aluminum pole
Cast aluminum stand-alone bases
Manufacturer: Galtech: Market Umbrella — 9' (or equal)
Sunbrella Fabric (mildew resistant/UV resistant)
CUSTOM BEACH CABANAS — 78" X 64" X 64" (401
Marine grade fabric
SIDE TABLES,211
Cast Aluminum _ 22" round x 17"
Manufacturer: Tropitone (orequal)
UNIFORMS
TropicatStiirtwith Khaki shorts and skirt
White tennis shoes with white ankle socks
EMPLOYEES (2)
properly groomed hair
Clean-shaven or well-groomed facial hair
Clean, neat overalfappearance
Professional; courteous attitude
KEY ISSUE -
Ability to charge hotel guests on room account
38
ATTACHMENT E
HYATT CONCESSION AREA
CITY OF CLEARWATER
PARKS AND RECREATION
DRAWN BY
Vt. Lee Cheek
CHECKED BY
Attachment E
Hyatt Regency Clearwater Beach Resort
& Spa Approximate Beach Lease Area
2026-03a. A66616 63
sscr.rwwsRac 07
DATE DRAWN
39
1 OF 1
• 295 1SE
12,19.2025 40,
ATTACHMENT F
AFFIDAVIT OF CRIMINAL BACKGROUND SCREENING
LESSEE NAME: OM1 th' 4 e1Q.oJwo4&1 /6tcte,haita.
DATE:
IE).) 010).4
By si • ning this form, I am swearing or a arming that all individuals employed by
(XI( 1 LA /. �. •. !_ I (Lessee) or providing services to
City under t 1! Lease Agreement on behalf of Lessee on City property have been
background screened in accordance with the background screening requirements set
forth in Lease Agreement and been deemed eligible by Lessee to provide services as
described in Lease Agreement. The information contained in this Affidavit is up to date
as of the date this Affidavit is furnished to City Parks and Recreation Department per the
requirements of Section 26 of the Lease Agreement.
All individuals providing services under the Lease Agreement on City property are listed
below. Each individual shall be identified by name, birth date and date deemed eligible.
(List of Individuals)
Signature of Affiant
Sworn to and subscribed before me this 1S4 day of AuthQ,, 20 .
( O °�s"•• FAITH D. WALLEY
-1. G•
?� �'• Notary Public • State of Florida
Commission # HH
t35
'°f . .. My Comm. Expires Jul 28, 2029
Notary Public
My Commission Expires:
My signature, as Notary Public, verifies the Affiant's identification has been validated by
\NOD/(A hMsv\
40