HomeMy Public PortalAboutnb concession-10112017102025.pdfSTATE OF GEORGIA )
COUNTY OF CHATHAM )
AGREEMENT
This Agreem is a Lease in the nature of an Operating Agreement and is made and
entered into this �y of , 201, by and between the City of
Tybee Island, a municipal corporation (sometimes referred to as "Landlord" and/or "City") and
Steve Kellam, Bethany Kellam and Todd Morrison, jointly and severally (hereinafter referred to
as "Tenant" or "Proposer").
1. Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, upon the terms, covenants, and conditions, and stipulations which hereinafter follow,
that certain space (hereinafter called "Premises"), to wit: The parties agree that the Leased
Premises is a one story frame building containing approximately 2,350 square feet, exterior
decks, entrance ways and service area. The Premises and operation are those described in the
Request for Proposal, RFP No. 2017-695, concerning the North Beach Concession Operation
and Services.
2. Term. This Lease shall be for a term of sixty (60) months and 1,1/1. days
(the "Initial Term") unless renewed, extended or terminated earlier pursuant to the provisions hereinafter
set forth. The Initial Term shall commence on 0(Thbe: I , 2017 ("Commencement Date") and shall
expire at midnight on 5(1E6 het 3b , 2022 (the "Expiration Date").
3. Rent. (a) Base Rent. During the Initial Term, the base rent shall be Seventy Two
Thousand Dollars ($72,000.00) (an annual rent of $14,400.00) due and payable in equal monthly
payments of One Thousand Two Hundred Dollars ($1,200.00) in advance, on the first 1st) day of
each calendar month; with a rent of /t(%a Dollars ($ /41//9 .00) for
the period of August 41/4, 2017 through August 31, 2017. Base Rent shall be deemed late, and
Landlord shall be entitled to a late fee of five percent (5%) of the amount due, if Base Rent has not
been received by Landlord by 5:00 p.m. on the fifteenth (15th) day of the month.
(b) Place of Payment. The Base Rent, plus any additional rent as hereinafter
described, shall be paid to Landlord in lawful money of the United States of America, at the address
specified in Section 25 hereof for notices or at such other address as Landlord may from time to
time designate in writing. The Base Rent together with additional rent is collectively referred to
herein as "Rent."
(c) Security Deposit. A Security Deposit in the amount of One Thousand Two
Hundred and No/100th ($1,200.00) Dollars is to be paid by Tenant to Landlord
(d) Automatic Renewal and Renewal Tenn. Provided that the Tenant is not in
default hereunder, Tenant may extend the lease for one (1) renewal period of five (5) years from
August 1, 2022 through July 31, 2027 ("the Renewal Term") on the same terms and conditions
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as for the Initial Term except that the Base Rent for each year (the annual rent) shall be increased
by an amount equal to three percent (3%) of the preceding year's annual rent. For example, the
annual Base Rent for the first year of the Renewal Term shall be $14,832.00 ($14,400.00
previous year's rent + 3% of $14,400.00) and the second year of the Renewal Term the annual
Base Rent shall be $15,276.96 ($14,832.00 previous year's rent + 3% of $14,832.00). Annual
Rent shall be payable for the convenience of the Tenant in twelve (12) monthly installments
rounded to the next whole dollar during the renewal term. Tenant and Landlord agree that the Lease
shall be automatically renewed upon this basis unless Tenant gives Landlord notice to the
contrary in writing at least one hundred -eighty (180) days prior to the expiration of the
Initial Term.
(e) Holding Over. If Tenant remains in possession of the Premises beyond
the Term, the tenancy shall be a tenancy at will upon the same terms and conditions as those
applicable to the period immediately preceding the Expiration Date except the monthly Base
Rent shall be 150% of the Base Rent during such preceding period.
4. Returned Checks. In addition to late charges as per Section 3(a), Tenant agrees to
pay $50.00 for any check returned for insufficient funds, closed account, or for any other reason.
5. Use. Premises shall be used as described in the City's Request for Proposal and
the Proposer's response as a concession stand with items for sale and operational methods as
described in the RFP and the response, each of which is incorporated herein and attached to the
original hereof. Upon specific approval of plans and code compliance, including compliance
with all provisions of the Chatham County Health Department, Proposer shall be allowed to
construct a grill on the premises and potentially make other improvements to the building subject
to the approval of the City which approval will not be unreasonably withheld. A photographic
rendering of the proposed grill is attached hereto.
6. Services and Utilities. Tenant shall contract for and pay all charges for services
and utilities used in, on or about the Premises including but not limited to, electricity, water and
sewer, gas, telephone/data, security system, exterior lighting, trash removal, pest control, interior
and exterior cleaning, janitorial.
In the event that at any time, Tenant shall fail to promptly pay any of the
foregoing charges, Landlord shall have the right, but not the obligation, to pay such charge or
charges for and on behalf of Tenant and such amounts so paid shall be deemed to be additional
rent hereunder and shall be payable by Tenant to Landlord upon demand. Tenant's failure to pay
for utility charges and to maintain utility services to the Premises or fail to pay Landlord if
Landlord pays any of the foregoing charges on Tenant's behalf shall constitute a breach of this
Lease Agreement.
Landlord shall not be liable in the event of any interruption in the supply of any
utilities or services. Tenant agrees that it will not install any equipment which will exceed or
overload the capacity of any utility facilities serving the Premises and that if any equipment
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installed by Tenant shall require additional utility facilities, the same shall be installed and
maintained at Tenant's expense in accordance with plans and specifications to be approved in
writing by Landlord.
7. Parking. Paid parking is available to the Tenant and its customers, agents,
servants, employees in the adjacent public parking lots and they are entitled to nonexclusive use
of the parking spaces at or near the premises subject to availability. These spaces are not free;
vehicles parking in the designated spaces will require a parking decal or a parking receipt.
8. Landlord's Maintenance, Repair and Alterations. See attached Request for
Proposal and proposal response.
9. Tenant's Maintenance, Repair and Alterations. See attached Request for Proposal
and proposal response.
10. Landlord's Right to Cure. In the event Tenant fails to perforin any of its
obligations hereunder, in addition to any other remedies provided it hereunder or by law, except
as otherwise excluded hereunder, Landlord shall have the right, at its option, to perform such
obligations on behalf of Tenant at any time following thirty (30) days' prior written notice to
Tenant (except in cases of emergency, in which event no notice shall be required and further in
the event of cancellation of insurance upon one day's notice), or such longer time as may
reasonably be required if such obligation cannot be performed within said thirty (30) day period,
provided Tenant has commenced performance within said thirty (30) day period and diligently
pursues performance until complete thereafter. In such event, Tenant shall pay Landlord, as
Additional Rent hereunder, all costs and expenses so incurred by Landlord, including reasonable
attorneys' fees, upon demand by Landlord.
11. Additional Rent and Taxes. Additional Rent shall include but not be limited to the
cost to Landlord to cure as per Section 10. As of the execution of this Lease Agreement, the
Premises are not subject to ad valorem ("property") taxation by Chatham County, the State of
Georgia, the Savannah Chatham County Public School System, or any other governmental taxing
authority. In the event the Premises becomes subject to any property tax, Tenant shall promptly
pay said tax as Additional Rent. Payment of taxes upon the personalty, equipment, inventory,
etc. located within the Premises shall be the sole responsibility of Tenant and Tenant shall
promptly pay said taxes when due.
12. Alterations, Changes, Additions and Signs. No changes, alterations, or additions
shall be made by Tenant to the Premises without the prior, written consent of Landlord, not to be
unreasonably withheld, and any such changes, alterations or additions, to or on the Premises
made with the aforesaid written consent of Landlord shall, at the option of Landlord without
payment to the Tenant remain for the benefit of and become the property of Landlord upon the
termination of this Lease, unless Landlord provides written consent, in its absolute discretion, to
the removal of such at Tenant's cost and expense. Tenant may install, at its expense and without
Landlord's written consent, trade fixtures, movable partitions, furniture, equipment, and other
personal property, and may remove the same at any time prior to the termination of this Lease
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provided that all rent has been paid for the entire term. If any damage is caused to the Premises
by Tenant's removal of any property, Tenant shall bear the cost of any such repair. Tenant shall
not install or maintain any equipment, partitions, furniture, or apparatus, the weight or operation
of which would tend to injure or be detrimental to the Premises or (in Landlord's reasonable
judgment) be loud or offensive to other Tenants. All exterior signs shall be approved by
Landlord in writing, and said approval not to be unreasonably withheld.
13. Insurance. Insurance shall be maintained by Proposer/Tenant as specified in the
Request for Proposal and the response thereto.
14. Destruction of or Damage to Premises. If the Premises (are damaged or destroyed
so that the Premises becomes totally or partially untenantable, Landlord shall be required, to the
extent of available insurance proceeds, to repair or restore the Premises to the state of its
existence as of the date of this Lease as expeditiously as is practical under the circumstances,
unless Tenant elects to terminate this Lease as hereinafter described in this Section. Any
insurance proceeds received by Landlord with respect to Tenant's trade fixtures, property owned
by Tenant, or property which Tenant may remove from the Building pursuant to this Lease, and
not used for repair or rebuilding such items, shall be held in trust for Tenant and delivered to
Tenant upon request.
Tenant may terminate this Lease by giving written notice to the Landlord within
thirty (30) days after the occurrence of any damage or destruction to the Premises which will, in
the opinion of an independent third party architect or engineer, reasonably renders more than
Fifty (50%) Percent of the Premises untenantable for a period longer than Ninety (90) days. In
the event that this Lease is terminated, neither party shall be further obligated to the other except
that Tenant shall be responsible to pay Landlord all rent and other charges due hereunder to the
date of such ttaunnation. Tenant may remove any non-structural improvements made by Tenant
or other property owned by Tenant.
In the event that the Premises are damaged or destroyed by fire, storm, or other
casualty so that the Premises shall be rendered totally or partially untenantable, the until the
Premises are rebuilt or restored to their former condition by Landlord, the payment of rent shall
be reduced in the same proportion as the number of square feet of the Premises occupied by the
Tenant prior to the loss or destruction. Rental shall automatically be reinstated as portions of the
Premises are returned to use by Tenant (provided it is commercially reasonable for Tenant to
conduct at least a portion of its business thereon) and shall be fully reinstated upon completion of
the repairs or restoration by Landlord.
15. Force Majeure. Whenever a period of time is herein prescribed for action to be
taken by Landlord, Landlord shall not be liable or responsible for, and there shall be excluded
from the computation of any such period of time, any delays due to strikes, riots, Acts of God,
shortages of labor or materials, wars, governmental laws, regulations or restrictions, or any other
causes of any kind whatsoever which are beyond the control of Landlord; provided, however, the
number of Force Majeure days will not be sixty (60) days.
16. Indemnity. Tenant hereby indemnifies and releases Landlord from, and agrees to
hold Landlord harmless against, any and all liability, loss, cost, damage or expense arising from
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injury to Tenant or Tenant's servants or employees, or any invitee or business visitor or person
while in, about or upon the Premises, except if due to the sole gross negligence of Landlord, its
agents, employees, contractors, invitees or licensees. In addition, Tenant indemnifies and
releases Landlord from, and agrees to hold Landlord harmless against, all claims for damages to
persons or property arising by reason of the use or occupancy of the Premises, including all
reasonable attorneys' fees and other expenses incurred by Landlord as a result thereof, except if
due to sole gross negligence of Landlord, its agents, employees, contractors, invitees or
licensees. Furthermore, Tenant indemnifies Landlord and agrees to compensate and hold
harmless Landlord in connection with any damage or injury to Landlord or Landlord's property,
the Premises, or any property, or any other party or parties, person or persons, if due to any
negligence or willful misconduct of Tenant, or any of its employees, servants, agents,
representatives or invitees, or otherwise occurring in connection with any default of Tenant
hereunder. The provisions of this section shall survive any termination of this lease.
17. Condemnation.
(a) Complete Taking. If at any time during the Tenn, title to the entire Premises
should become vested in a public or quasi -public authority by virtue of the exercise of a taking by
condemnation or the right of eminent domain (or transfer in lieu thereof) or in the event that title to
a portion of the Premises should be so taken or transferred rendering continued use by Tenant
commercially unreasonable, then this Lease shall terminate as of the time of vesting of title, after
which neither party shall be further obligated to the other except that Tenant shall be responsible to
pay Landlord all Rent and other charges due hereunder for the current Lease year owed to Landlord
up to the date of such termination. Tenant may remove any non-structural improvements made by
Tenant or other property owned by Tenant.
(b) Partial Taking. In the event of a partial taking of the Premises or transfer in lieu
thereof which does not render continued occupancy and use by Tenant commercially unreasonable,
then this Lease shall continue, provided, however, that payments of Rent shall be reduced in the
same proportion as the number of square feet of the Premises taken or transferred bears to the total
number of square feet of the Premises prior to the taking or transfer in lieu thereof. In all other
respects this Lease shall be unaffected.
(c) Condemnation Award. In the event of any such taking or transfer in lieu thereof,
whether of the entire Premises or a portion thereof, it is expressly agreed and understood that all
sums awarded, allowed or received in connection with the loss of fee simple title to the Premises or
a portion thereof shall belong to Landlord; provided, however, the foregoing shall not prevent
Tenant from seeking compensation in its own name on its own behalf of the loss of Tenant's right to
use and occupy the Premises under this Lease, and other incidental and consequential damages.
18. Assignment and Subletting. Tenant shall not, without written notice to Landlord
and the prior written consent of Landlord, in each instance, directly or indirectly, voluntarily or
involuntarily, by operation of law, merger, consolidation, reorganization or otherwise, mortgage,
hypothecate, pledge, encumber, sell, transfer or assign this lease, in whole or in part, or sublease
all or any part of the Premises, or permit the use or occupation of all or any part of the Premises
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by any party (all of the foregoing being collectively referred to as an "Assignment"). The sale or
transfer of a majority membership interest in Tenant or a majority of Tenant's voting stock shall
constitute an Assignment for purposes of this section. Tenant shall promptly reimburse Landlord
for Landlord's costs and expenses, including, without limitation, reasonable attorneys' fees, in
connection with any proposed Assignment.
Tenant shall not sublease the Premises in whole or in part without the prior
written consent of Landlord. which consent shall not be unreasonably withheld or delayed.
Notwithstanding anything to the contrary provided in this Section, Tenant shall be permitted to
assign its interest in the Lease, without the consent of the Landlord, in connection with granting a
Leasehold Mortgage (as hereinafter defined) or to an "Affiliate." For purposes hereof, "Affiliate"
shall mean (1) any majority shareholder of Tenant or majority member of Tenant or (2) any
corporation, partnership, limited liability company, trust or other entity controlling, controlled by
or under common control with Tenant or a majority member of Tenant.
Any such subletting or assignment shall not release Tenant from its obligations hereunder
unless Landlord expressly agrees to release Tenant.
19. Default by Tenant. The occurrence of any of the following shall constitute a
material default and breach of this lease by Tenant: (a) any failure by Tenant to pay rent or to
make any payment required to be made by Tenant hereunder which failure shall continue for ten
(10) days after written notice thereof by Landlord to Tenant; (b) the abandonment or vacating, in
whole or in part, of the Premises by Tenant without the payment of rent (c) failure to discharge
any lien filed against the Premises on Tenant's account which failure shall continue uncured for
thirty (30) days after Tenant's actual notice of its filing; (d) a failure by Tenant to observe and
perform any other provision of this lease to be observed or performed by Tenant, which failure
shall continue for thirty (30) days after written notice thereof by Landlord to Tenant, (except in
the event of failure to maintain any of the insurance as per Section 14 and Exhibit B,
Tenant's failure continues for three (3) days after written notice); provided, however, that if
the nature of such default is such that the same cannot reasonably be cured within such 30 -day
period, Tenant shall not be deemed to be in default if Tenant shall within such period commence
such cure and thereafter diligently prosecute the same to completion; (e) the making by Tenant
or any guarantor of any general assignment for the benefit of creditors; (f) the filing by or
against Tenant or any guarantor of a petition to have Tenant adjudged bankrupt or of a petition
for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days); (g) the appointment
of a trustee or receiver to take possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this lease, where possession is not restored to Tenant within
thirty (30) days; (h) the attachment, execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this lease, where such seizure is
not discharged within ten (10) days; or (j) the cessation of business for a period of ten (10)
consecutive days due to a government agency ordering cessation of business, e.g. Georgia
Department of Revenue for unpaid sales taxes, etc.
Upon the occurrence of any event of default, Landlord may exercise any one or
more of the following remedies, it being agreed that pursuit of any remedy provided in this
Lease shall not preclude pursuit of any other remedy or remedies herein provided or provided by
law, and that any of such remedies may be pursued regardless of whether or not the default
continues to exist and whether or not Landlord accepts or has accepted rent subsequent to the
occurrence of such default: (a) Terminate this lease by giving notice to Tenant, in which event
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Tenant shall immediately surrender possession of the Premises and Landlord shall repossess
itself thereof by using such force as may be necessary, without being guilty of trespass, forcible
entry, detainer or other tort, Tenant having, subject to any claims of Landlord, ten (10) days
thereafter to remove any personal property belonging to Tenant which remains on the Premises,
and which thereafter shall become the property of Landlord; or (b) With or without terminating
this lease, and without notice to Tenant, enter upon the Premises or any part thereof, change the
locks and relet the Premises, without advertisement, by private negotiations, and for any term
and rental rate which Landlord in its sole discretion determines. Tenant shall be liable to
Landlord for all rent due hereunder and for all of Landlord's reasonable costs and expenses,
including attomey's fees and real estate commissions in connection with any reletting, and all
costs needed to bring the Premises into similar condition as existed at the time this lease was
executed, normal wear and tear excepted.
20. Signs. Tenant shall not place or use signs or other materials intended to attract
attention upon the outside walls, fences or roof of the Premises or exterior grounds of the
Premises that can be seen from the public areas surrounding the Premises without the written
consent of the Landlord whose consent shall not be unreasonably withheld.
21. Entry for Carding, etc. Landlord may card the Premises "For Rent" or "For Sale"
ninety (90) days before the termination of this Lease. Landlord may enter the Premises at
reasonable hours and with at least 24 hours advance notice to the Tenant to exhibit same to
prospective purchasers or Tenants or to make repairs to Landlord's adjoining property, if any.
22. Tenant Notices. Tenant hereby appoints as his agent to receive service of all
dispossessory or distraint proceedings and notices hereunder, and all notices required under this
lease, the person in charge of the Premises at the time, or occupying the Premises, and if no
person is in charge of, or occupying the Premises, then such service or notice may be made by
attaching the same on the main entrance of the Premises. A copy of all notices under this lease
shall sent be regular mail except those notices that pertain to Tenant's Default shall be sent by
certified or registered United States Mail, postage paid, or sent via courier to: Todd Morrison,
1603 Second Avenue, Tybee Island, GA 31328, with a copy to Josh Walker, Esq., Ziegler &
Walker, P.C., 636 Stephenson Avenue, Savannah, GA 31405.
23. Landlord Notices. All Tenant notices, elections, demands, requests and other
communications to the Landlord hereunder shall be in writing, signed by the Tenant and shall be
delivered in person or sent by certified or registered United States Mail, postage paid, or sent via
courier to: City of Tybee Island, Attention: City Manager, 403 Butler Ave., Tybee Island, GA
31328, with a copy to: Edward M. Hughes, City Attorney, P.O. Box 9946, Savannah, GA 31412
(2 East Bryan Street, 10th Floor, Savannah, GA 31401 for in person delivery).
24. Personal Property Taxes and Additional Taxes. During the Term of this lease,
Tenant shall pay all taxes levied upon any trade fixtures, furnishings, equipment and all other
personal property of Tenant contained in the Premises If at any time during the term of this
Lease, or any extension or renewal thereof, there shall be assessed or imposed a license fee,
property tax on the Premises or a tax or assessment measured by the rent payable under this
Lease, then all such taxes, assessments or fees shall be the obligation of Tenant. Tenant shall
pay and discharge the same as it would the imposition of personal property taxes under this
section and as Additional Rent as per Section 13. Nothing herein or in this Lease otherwise
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contained shall require or be construed to require Lessor to pay any inheritance, estate,
succession, transfer, gift, franchise, income or profit taxes that are or may be imposed upon
Tenant, its successors or assigns. Tenant shall not be obligated to pay real property tax.
25. Early Termination of Lease. No termination of this lease prior to the normal
ending thereof, by lapse of time or otherwise, shall affect Landlord's right to collect rent for the
period prior to termination thereof.
26. Mortgagee's Rights. Tenant agrees that this lease and all rights of Tenant
hereunder are and shall be subject and subordinate to any mortgage now or hereafter
encumbering the Premises, to all advances made or hereafter to be made upon the security of
such mortgage, to all amendments, modifications, renewals, consolidations, extensions and
restatements of such mortgage, and to any replacements and substitutions for such mortgage.
The terms of this provision shall be self -operative and no further instrument of subordination
shall be required. Tenant, however, upon request of any party in interest, shall execute promptly
such instrument or certificates as may be reasonably required to carry out the intent hereof,
whether said requirement is that of Landlord or any other party in interest, including, without
limitation, any mortgagee.
Notwithstanding the foregoing and so long as no event of default on the part
of Tenant under the lease shall exist which would entitle Landlord to terminate the Lease,
Landlord agrees to execute and require any holder of a subsequently granted mortgage or
deed to secure debt ("Mortgagee") to execute a subordination, non -disturbance and
attornment agreement containing customary terms reasonably satisfactory to Tenant for
recording in the Chatham County, Georgia records.
In the event of any proceedings are brought for the foreclosure of, or in the event
of exercise of the power of sale under, any mortgage covering the Premises, or in the event the
interest of Landlord under this lease shall be transferred by reason of deed in lieu of foreclosure
or other legal proceedings, Tenant shall, at the option of the transferee or purchaser at
foreclosure or under power of sale (sometimes hereinafter called "Such Person"), adorn to Such
Person and shall recognize and be bound and obligated hereunder to Such Person as the Landlord
under this lease; provided, however, that no Such Person shall be (i) bound by any payment of
Rent for more than one (1) month in advance, except prepayments in the nature of security for
the performance by Tenant of its obligations under this lease (and then only if such prepayments
have been deposited with and are under the control of Such Person); (ii) bound by any
amendment or modification of this lease made without the express written consent of the
mortgagee; (iii) obligated to cover any defaults under this lease of any prior landlord (including
Landlord); (iv) liable for any act or omission of any prior landlord (including Landlord); (v)
subject to any offsets or defenses which Tenant might have against any prior landlord (including
Landlord); or (vi) bound by any warranty or representation of any prior landlord (including
Landlord) relating to work performed by any prior landlord (including Landlord) under this
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lease. Tenant agrees to execute any attornment agreement not in conflict herewith requested by
Landlord, the mortgagee or Such Person. Tenant's obligation to attorn to Such Person shall
survive the exercise of any such power of sale, foreclosure or other proceeding. Tenant agrees
that the institution of any suit, action or other proceeding by any mortgagee to realize on
Landlord's interest in the Premises pursuant to the powers granted to a mortgagee under its
mortgage, shall not, by operation or law or otherwise, result in the cancellation or termination of
the obligations of Tenant hereunder. Landlord and Tenant agree that notwithstanding that this
lease is expressly subject and subordinate to any mortgages, any mortgagee, its successors and
assigns, or other holder of a mortgage or of a note secured thereby, may sell the Premises in the
manner provided in the mortgage and may, at the option of such mortgagee, its successors and
assigns, or other holder of the mortgage or note secured thereby, make such sale of the Premises
subject to this lease.
27. Estoppel Certificates. Upon request by either party, the other party agrees to
furnish, within fifteen (15) days from such request, a certificate stating that there are no
amendments or modifications to this lease (or specifying the amendments or modifications, if
such exist); stating that the other party is not in default (or specifying the defaults, if such are
claimed); and stating whether this lease is in full force and effect.
28. Mechanic's Liens. Tenant shall not suffer any mechanic's lien to be filed against
the Premises by reason of work, labor, services, or material performed or furnished to Tenant or
anyone holding the Premises, or any part thereof, through or under Tenant. If any mechanic's lien
or any notice of intention to file a mechanic's lien shall at any time be filed against the Premises,
Tenant shall, at Tenant's cost, within thirty (30) days after notice of the filing of any mechanic's
lien given by Landlord to Tenant, cause the same to be removed or discharged of record by
payment, bond, order of a court of competent jurisdiction, or otherwise. If Tenant shall fail to
remove or discharge any mechanic's lien or any notice of intention to file a mechanic's lien
within the prescribed time, then, in addition to any other right or remedy of Landlord, Landlord
may, at its option, procure the removal or discharge of the same by payment, bond or otherwise.
Any amount paid by Landlord for such purpose, together with all legal and other expenses of
Landlord in procuring the removal or discharge of such lien or notice of intention, together with
interest thereon at the highest permissible rate, shall be and become due and payable by Tenant
to Landlord as Additional Rent, and in the event of the Tenant's failure to pay same within thirty
(30) days after demand, it shall be added to and be due and payable with the next month's Rent.
Nothing contained in this lease shall be construed as a consent on the part of Landlord to subject
Landlord's estate in the Premises to any lien or liability arising out of Tenant's use or occupancy
of the Premises.
29. No Estate. This lease does not convey to or create in the Tenant any interest or
estate in the Premises. Tenant's sole rights with respect to the Premises as set forth in this lease.
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30. Quiet Enjoyment. So long as Tenant observes and performs the covenants and
agreements contained herein, it shall at all times during the lease term peacefully and quietly
have and enjoy possession of the Premises, but always subject to the terms hereof.
31. Hazardous Substances and Mold. Tenant agrees (i) that Tenant will not violate
any environmental laws; (ii) that the Tenant will not cause or permit any condition which would
create hazardous material contamination or mold conditions on the Premises; (iii) to give notice
to the Landlord immediately upon the Tenant's acquiring knowledge of the presence of any
hazardous material or mold on the Premises; (iv) to give notice to the Landlord immediately of
any notice of violation of any laws, rules or regulations regulating hazardous materials or any
requests for information from any federal, state, county, regional or local governmental authority
concerning hazardous materials and hazardous materials contamination or mold on the Premises;
and (v) to promptly comply with any governmental requirements requiring the removal,
treatment or disposal of such hazardous materials or hazardous materials contamination or mold
contamination and provide the Landlord with satisfactory evidence of such compliance. Tenant
covenants and agrees at all times to indemnify, hold harmless and defend Landlord, its
successors and assigns, as owner of the Premises from and against any and all liability, loss,
damages, cost (including, without limitation, all of Landlord's clean-up costs and all expenses,
fees, transportation, testing, decontaminating and other related or similar expenses), expense
(including without limitation, reasonable attorney's fees and expenses), cause of action, suit,
claim, demand or judgment against the Landlord and/or the Tenant and/or the Premises of any
nature, arising directly or indirectly from (i) Tenant's breach or failure to comply with Tenant's
environmental covenants under this lease, or (ii) Tenant's breach of any law or regulation
pertaining to mold, hazardous materials, hazardous substances or solid or hazardous waste
materials or other waste -like or toxic substances located on, emanating from, or relating to, or
affecting the Premises, or any contiguous property, including, but not limited to, liens or claims
of any federal, state or municipal government or quasi -governmental agency or any third
persons, any environmental law, federal, state or municipal law or regulation or tort, contract or
common law. This Indemnity shall survive the expiration or sooner termination of this lease and
shall not merge into any document executed in conjunction herewith or be deemed waived or
released by any action or omission of Landlord in dealing with any environmental matters.
32. Holding Over. If Tenant remains in possession of the Premises beyond the
expiration or termination of this lease, then Tenant shall be a Tenant from month to month upon
the same terms and conditions as those applicable to the most recent period, except that Tenant
shall pay rent to Landlord in an amount equal to the monthly rent then in effect multiplied by a
factor of 1.50.
33. Attorney's Fees and Interest. If any rent or other sum owing under this Lease is
collected by or through an attorney at law, Tenant agrees to pay reasonable attorneys' fees,
together with all costs and expenses, and a right to such attorneys' fees and expenses shall be
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deemed to have accrued upon the commencement of such action and shall be enforceable
whether or not such action is prosecuted to judgment. All other sums due hereunder shall bear
interest at the rate of fifteen percent (15%) per annum after maturity.
34. Governing Law. This lease is a Georgia contract and shall be construed and
enforced in accordance with the laws of the State of Georgia.
35. Severability. If any provision of this lease shall be declared invalid or
unenforceable for any reason by a court of competent jurisdiction, the parties declare that it shall
be severable, and that all remaining provisions of this lease shall remain in full force and effect.
36. Rights Cumulative. All rights, powers and privileges conferred hereunder upon
parties hereto shall be cumulative and not restrictive of those given by law.
37. Waiver of Rights. No failure of Landlord to exercise any power given Landlord
hereunder, or to insist upon strict compliance by Tenant of his obligations hereunder and no
custom or practice of the parties at variance with the terms hereof shall constitute a waiver of
Landlord's right to demand exact compliance with the terms hereof.
38. Transfer of Landlord's Interest. If Landlord shall sell, assign or transfer all or any
part of its interest in the Premises or in this lease to a successor in interest which expressly
assumes the obligations of Landlord hereunder, then Landlord shall thereupon be released or
discharged from all covenants and obligations hereunder, and Tenant shall look solely to such
successor in interest for performance of all of Landlord's obligations. Tenant's obligations under
this Lease shall in no manner be affected by Landlord's sale, assignment, or transfer of all or any
part of such interest(s) of Landlord, and Tenant shall thereafter attom and look solely to such
successor in interest as the Landlord hereunder.
39. Time of Essence. Time is of the essence of this Lease.
40. Prior Agreements. This Lease defines the rights, duties and obligations of the parties
with respect to the Premises and supersedes all prior agreements and understandings between the
parties with respect thereto for the time period of this lease.
41. Definitions. "Landlord" as used in this Lease shall include first party as well as
its representatives, assigns and successors in title to the Premises. "Tenant" shall include second
party, as well as its representatives, and if this lease shall be validly assigned or sublet, shall
include also Tenant's assignees or subleasees, as to the Premises covered by such assignment or
sublease. "Agent" shall include third party, together with its successors, assigns, heirs and
representatives. "Landlord", "Tenant", and "Agent" include male and female, singular and plural,
corporation, partnership or individual, as may fit the particular parties.
42. Authority of Tenant. If Tenant signs as a corporation or limited liability company,
execution hereof shall constitute a representation and warranty by the Tenant that Tenant is a
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duly organized and existing corporation/or limited liability company, that Tenant has been and is
qualified to do business in the State of Georgia and is in good standing with the State of Georgia,
that the corporation or limited liability company has full right and authority to enter into this
Lease, and that all persons signing on behalf of the corporation were authorized to do so by
appropriate corporate action or in the event of a limited liability company that all persons signing
on behalf of the company are authorized to do so in a duly executed operating agreement. If
Tenant signs as a partnership, trust, or other legal entity, execution hereof shall constitute a
representation and warranty by the Tenant that Tenant has complied with all applicable laws,
rules, and governmental regulations relative to Tenant's right to do business in the State of
Georgia, that such entity has the full right and authority to enter into this Lease, and that all
persons signing on behalf of the Tenant were authorized to do so by any and all necessary or
appropriate partnership, trust, or other action.
43. Recording of Lease. Landlord and Tenant agree that this Lease shall not be
recorded; provided, however, upon the request of either party, the other party shall join in the
execution of a Memorandum of the Lease for the purpose of recording same. The Memorandum
shall describe the parties, the demised Premises, the Tenn of the Lease, and shall incorporate the
Lease by reference.
44. Counterparts. This instrument may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
45. Broker. Neither party has employed the services of a real estate broker, in
connection with this Lease. Both parties agree to indemnify the other party against any claims for
commission or compensation by any real estate broker claiming by, through or under said parties.
46. Construction. Any gender used herein, whether masculine, feminine or neuter, shall
be deemed to refer to any other gender applicable to the party to whom such use of gender relates.
The use of the singular herein shall be deemed to include the plural and, conversely, the plural shall
be deemed to include the singular, where appropriate.
47. Special Stipulations. In so far as the following stipulations conflict with any of
the foregoing provisions, the following shall control:
(a) The terms of the Agreement will include and hereby incorporates the
Request for Proposal No. 2017-695 issued by the City and the response of Steve Kellam,
Bethany Kellam and Todd Morrison (hereinafter "Proposers") except to the extent that the terms
of this Agreement are inconsistent with the provisions of the proposal or Request for Proposal in
which event, the terms of this Agreement shall control. Concession items may include beer,
wine, snacks, soft drinks, bottled water, recreational gear and food prepared on the premises
subject to the approval of the Mayor and Council; however, no products packaged or made of
Styrofoam or glass may be sold nor may beach chairs and umbrellas be rented or sold, and the
provisions of the Special Conditions and Specifications as stated in the Request for Proposal
shall apply and are incorporated herein expressly.
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(b) The City shall, at all times upon reasonable notice to the Tenant, have
access to the premises and shall the right to access for repairs, inspections, servicing, treatments
and monitoring as necessary or required for any water well or other utilities on the premises.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease Agreement to be
duly executed under seal as of the day and year first above written.
WITNESS: LANDLORD:
Approved as to form:G,
WITNESS:
THE CITY OF TYBEE ISLAND, GEORGIA,
A MUNICIPAL CORPORATION
By:
Attest:
ason Buelterman
Edward M. Hughe§, C" r ttorney
Rev 08.17.17
By.
Todd Morrison
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