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HomeMy Public PortalAboutnorth beach lease 2017-03282017163715 (2).pdfLEASE AGREEMENT THIS LEASE AGEEMENT ("Lease"), made and entered into as of March 2'/'4017 by and between The City of Tybee Island, Georgia, a municipal corporation, ("Landlord"); and North Beach Bar & Grill, LLC, a Georgia limited liability company, (hereinafter "Tenant"). WITNESSETH: 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 as shown on Exhibit "A" known as 33 Meddin Drive, Tybee Island, Georgia 31328. Note: Landlord and Tenant agree that the Premises, as shown on Exhibit "A" hereto, shall be subject to revision whereby the northern property line of the Premises shall be extended north in order to accommodate the new access ramp as per Section 9 below. 2. Term. This Lease shall be for a term of sixty (60) months and twenty-one (21) days (the "Initial Term") unless renewed, extended or terminated earlier pursuant to the provisions hereinafter set forth. The Initial Term shall commence on April 10, 2017 ("Commencement Date") and shall expire at midnight on April 30, 2022 (the "Expiration Date"). 3. Rent. (a) Base Rent. During the Initial Term, the base rent shall be Three Hundred Sixty Thousand Dollars ($333,850.00) (an annual rent of $66,000.00) due and payable in equal monthly payments of Five Thousand Five Hundred Dollars ($5,500.00) in advance, on the first (1st) day of each calendar month; with a rent of Three Thousand Eight Hundred Fifty Dollars ($3,3850.00) for the period of April 10, 2017 through April 30, 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. No Security Deposit is to be paid by Tenant. (d) Automatic Renewal and Renewal Term. Provided that the Tenant is not in default hereunder, Tenant may extend the lease for one (1) renewal period of five (5) years from May 1, 2022 through April 30, 2027 ("the Renewal Term") on the same terms and conditions 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 1725601.1 1 of the Renewal Term shall be $67,980.00 ($66,000.00 previous year's rent + 3% of $66,000.00) and the second year of the Renewal Term the annual Base Rent shall be $70,019.40 ($67,980.00 previous year's rent + 3% of $67,980.00). 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 or Landlord gives the other party 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 for a full service restaurant including the sale of alcoholic beverages, catering, special events, and the incidental sale of merchandise, e.g. hats and t -shirts, but in no event shall Tenant sell or rent beach equipment or other retail products not related to restaurant services or shall Tenant use Styrofoam products. No other use shall be permitted without the prior written consent of the Landlord and in the event Tenant intends to erect any temporary tent, canopy or covering on the Premises for any special event, Tenant shall obtain Landlord's prior written approval, which shall not be unreasonably withheld. Further, upon the prior written approval, Landlord will reasonably work with Tenant to rope off certain areas and arrange for exclusive parking for the special event. Premises shall not be used for any illegal purposes Tenant shall comply with all laws, ordinances and regulations relating to the improvements, maintenance, use and occupancy of the Premises. 6. Conduct of Business. In conducting its business, Tenant shall at its own cost and expense, procure each and every permit, license, or certificate required in connection with the lawful and proper use of the Premises. Neither the failure on the part of Tenant to procure such permit, license, certificate or other authorization nor the revocation of the same shall in any way affect the liability of Tenant for the payment of rent or the performance or observance of any of the covenants or conditions herein contained on the Tenant's part to be performed and observed. Tenant shall also observe any reasonable requirements of any insurer under any policy affecting the Premises and not do anything that may damage the Premises. Tenant covenants that it will: (a) keep the interior and exterior of the Premises clean at all times; (b) adhere to a no smoking policy in the Premises, but Tenant, its customers, agents, servants, guests, and employees shall be permitted to smoke outside the Premises and on the decks provided that Tenant at its expense police the areas and remove any trash or debris caused by this activity; (c) not allow any animals, birds, bicycles or other vehicles other than wheelchairs inside the Premises, however, dogs shall be permitted on the decks of the Premises; (d) not create or maintain, or allow others to create or maintain, any nuisances, including without limiting the foregoing general language, offensive odors and smoke or dust in, upon, or about the Premises; and (e) maintain and keep current all permits, licenses and authorizations necessary for the operation of a restaurant with consumption of alcohol on the premises. 1725601.1 2 7. 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 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. 8. Parking. Paid parking is available to the Tenant and its customers, agents, servants, employees in the adjacent public parking lots and are entitled to nonexclusive use of the parking spaces at or near the premises. These spaces are not free; vehicles parking in the designated spaces will require a parking decal or a parking receipt. 9. Landlord's Maintenance, Repair and Alterations. Landlord shall be responsible for maintaining and repairing the roof, including making the repairs needed as of the execution of this Lease; however Landlord shall not be responsible for any repairs or maintenance of the roof if necessitated by an act or omission of Tenant. Landlord shall be responsible for all structural repairs, unless caused by the negligence of Tenant, its employees, contractors or agents. Landlord shall make the necessary alterations to one restroom in order to make it compliant with the American Disability Act ("ADA") and make the alterations or reconstruction of the access ramp located on the northern side of the Premises to make it ADA compliant. Landlord shall widen the paver incline to the deck that is located on the southern side of the Premises so as to be ADA compliant. Landlord shall maintain the flower beds currently under warranty as part of the North Beach Public Restrooms. In performing maintenance and making the repairs and alterations hereunder, Landlord will make all reasonable effort to undertake such with minimal disruption of Tenant's business. Landlord shall not be responsible or liable for any consequential costs, expenses or damages in any way related to a defective condition of the Premises or the repair of such condition including, without limitation, liability for loss of income, business, or profits or any other costs. 10. Tenant's Maintenance, Repair and Alterations. Tenant, its members, manager(s) and/or related predecessor entity, have occupied the Premises and conducted a restaurant business therein since approximately August, 1993 and as a consequence are fully familiar with the condition of the Premises and thereby accept the Premises in their "as is" condition. Except as otherwise specifically provided in section 9 above, Tenant shall be responsible for all maintenance and repair of the Premises and thus, Tenant shall, at its sole cost and expense, keep the Premises in a safe, and serviceable condition and free from any infestation by insects, rodents, or other pests, and, make all needed maintenance, repairs, and replacements for the proper operation of Tenant's business in, upon and 1725601.1 3 about the Premises, including, but not limited to, all maintenance, repairs, and replacements to and to keep the same in good condition and repair: (i) doors, windows, window frames, plate glass, door closures, door frames and store fronts; (ii) all plumbing and sewage facilities within the premises, including free flow up to the connection to the main sewer line; (same shall not include improvements or alterations to existing line(s) unless said improvements or alterations are necessary due to Tenant's negligent acts or omissions, including but not limited to poor maintenance of grease trap) (iii) all fixtures; (iv) all electrical systems; (v) all sprinkler systems and landscape areas with the exception of the flowerbeds adjacent to the public walkway; (vi) all interior and exterior walls, floors, and ceilings; (vii) the porches, decks of and the approaches to the Premises; (viii) all repairs, replacements, or alterations required by any governmental authority; (ix) HVAC system; and (ix) all necessary repairs and replacements of Tenant's trade fixtures required for the proper conduct and operation of Tenant's business, including but not limited to the grease trap, which shall be cleaned on a monthly basis or more frequently if needed. Tenant shall at all times during the Term comply with all building, zoning, health or other applicable rules, regulations or laws, whether federal, state or local in effect as of the date of this Lease, whether now or hereafter in effect, relating to or otherwise arising out of Tenant's particular use or and/or occupancy of the Premises and shall at Tenant's expense make any improvements or alterations to the Premises necessary to comply with such requirements. Tenant shall also make any repairs or replacements caused by vandalism to the Premises or any part thereof if said damage is not covered by insurance. Should Tenant neglect to perform any of its obligations as set forth in this section at all times throughout the term of this Lese, Landlord shall have the right (but not the obligation) to cause any such obligation to be accomplished, and all costs reasonably incurred in connection therewith shall be repaid by Tenant to Landlord as Additional Rent, due on the next rental installment date Further, Tenant's failure or neglect to perform any of the obligations in this section shall constitute a breach of this Lease Agreement, even if Landlord performs and seeks to be repaid as Additional Rent. Tenant shall have no obligation for repair or reconstruction of any damage to the Premises, not including Tenant's fixtures, furnishings and equipment, caused by fire or other casualty and covered by Landlord's insurance, unless said damage is the result of Tenant's negligent or intentional acts or omissions. Tenant shall be liable for and shall hold Landlord harmless with respect to any damage or injury to Landlord or Landlord's property, the Premises, or property of Landlord's other tenants, or anyone else, if due to any act, omission or neglect of Tenant, Tenant's agents, employees, licensees or invitees. Approved Notwithstanding anything to the contrary herein, Tenant, at its sole cost, is to make all non- structural repairs to the premises and to make all structural repairs which were caused by its own negligence or the negligence of its employees or agents. Further, Landlord shall not be responsible for structural repairs that would have been covered by Landlord's insurance, but are not covered due to Tenant failing to give timely notice of the needed repair to Landlord which results in a denial of coverage. Tenant shall within three (3) months of the execution of this Lease Agreement construct an eight (8) foot tall privacy fence on the northwestern portion of the Premises for the purposes of screening from public view Tenant's storage container(s) and garbage and refuse receptacles, including but not limited to Tenant's dumpster(s), garbage cans, grease trap containers, etc. Any dumpster must be located on a concrete pad. Tenant shall be responsible for maintenance of the privacy fence. If in the event the ADA accessible ramp to be constructed by Landlord as per Paragraph 9 will require and include a concrete landing, Tenant may delay the start of construction of the privacy fence, so as to 1725601.1 4 have the concrete pad poured for the dumpster(s) at same time as concrete pad is poured for the ADA accessible ramp, with Tenant responsible for cost of the concrete dumpster pad. In that event, construction of the privacy fence shall begin immediately after pouring of the concrete pad and completed within thirty (30) days of the pouring of the concrete pad. All accessory buildings or structures of any kind, including storage buildings, dumpsters and trash cans must be Federal Emergency Management Act ("FEMA") compliant, including tie downs and capable of removal. Once the paved ramp to the deck is widened by the Landlord, Tenant shall remove the wood ramp on the eastern side of the Premises so that it does not encroach over the boundary of the Premises. Any alterations or other construction undertaken by Tenant which requires a building permit shall also be separately approved by Landlord, i.e. the issuance of a building permit is not approval by Landlord for compliance with this provision, and the approval required by this Lease shall be written approval by the City Manager, not to be unreasonably withheld. 11. Landlord's Right to Cure. In the event Tenant fails to perform 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. 12. Additional Rent and Taxes. Additional Rent shall include but not be limited to the cost to Landlord to cure as per Section 11. 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 13. 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 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 1725601.1 5 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. 14. Insurance. Tenant shall maintain insurance coverages in compliance with the Insurance Specifications contained in Exhibit "B" attached hereto. Tenant also agrees to maintain a Special Form property and casualty insurance coverage against loss or damages to its personal property and improvements. Such insurance shall also cover Tenant's loss of income in an amount sufficient to cover Tenant's obligations for expenses of this Lease for a period of at least twelve (12) months. Tenant shall deliver to Landlord a certificate of insurance at least fifteen (15) days prior to the Commencement Date, and a renewal certificate at least fifteen (15) days prior to the expiration of the policy which it covers. Such policies must provide for thirty (30) days' prior written notice to Landlord in the event of a material change or cancellation of such policy. Such property insurance coverage shall provide for replacement cost valuation. 15. 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 termination. 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. 16. 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. 1725601.1 6 17. 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 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. 18. Condemnation. (a) Complete Taking. If at any time during the Term, 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. 19. 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 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 1725601.1 7 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. 20. 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 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 1725601.1 8 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 attorney'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. 21. 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. 22. 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. 23. 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: Kathryn Williams, 1501 Chatham Ave., Tybee Island, GA 31328 and a copy provided to counsel, J. Scott Vaughan, 7505 Waters Avenue, Suite B-1, Savannah, Georgia 31406. 24. 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). 25. Storage. All food and food products, condiments, beverages, both alcoholic and non-alcoholic and all other consumable/ingestible items shall be stored entirely within or on the Premises, except to the extent that the Georgia Department of Public Health approves and authorizes the storage of these items in the Battery Garland. Tenant may have off-site storage with third parties for dry goods, e.g. linens, merchandise, cups, plates, utensils, cleaning supplies, etc. 26. 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 1725601.1 9 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 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. 27. 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. 28. 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, nondisturbance 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"), attom 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 lease. Tenant agrees to execute any attornment agreement not in conflict herewith requested by Landlord, the mortgagee or Such Person. Tenant's obligation to attom 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 1725601.1 10 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. 29. 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. 30. 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. 31. 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. 32. 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. 33. 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 1725601.1 11 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. 34. 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. 35. 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 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. 36. Governing Law. This lease is a Georgia contract and shall be construed and enforced in accordance with the laws of the State of Georgia. 37. 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. 38. Rights Cumulative. All rights, powers and privileges conferred hereunder upon parties hereto shall be cumulative and not restrictive of those given by law. 39. 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. 1725601.] 12 40. 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 attorn and look solely to such successor in interest as the Landlord hereunder 41. Time of Essence. Time is of the essence of this Lease. 42. 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. 43. 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. 44. 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 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. 45. 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 Term of the Lease, and shall incorporate the Lease by reference. 46. 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. 1725601.1 13 47. 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. 48. 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. 49. Special Stipulations. In so far as the following stipulations conflict with any of the foregoing provisions, the following shall control: 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: WITNESS: LANDLORD: THE CITY OF TYBEE ISLAND, GEORGIA, A MUNICIPAL CORPORATION By: Attest: mon Buelterman, Mayor Jan LeViner, Clerk of Council Approved as to form: .ZZpat e. ��GBu [.✓� Dana F. Braun, City Attorney TENANT: NORTH BEACH BAR & GRILL, LLC 1725601.1 By: By: L. illiams, Manager 14 1725601.1 EXHIBIT "A" PREMISES 15 LINE DIRECTION DISTANCE UNE DIRECTION DISTANCE L1 N 8612'43" W 2.38' L12 N 0913'39" E 12.37' L2 N 79'43'40" W 6.70' L13 N 80'53'42" E 1.14' L3 S 02'42'09" W 3.71' LI4 N 09'06'18" E 18.36' L4 S 48'02'44" W 2.85' L15 N 80'59'08" W 1.81' L5 N 86'03'30" W 5.97' L16 N 10'20'25" E 9.14' L6 5 0212'51" W 5.42' L17 N 17'02'44" W 0.97' L7 N 02'30'24" E 5.45' L18 N 34'26'15" W 10.68' L8 N 87'29'36" W 4.25' LI9 N 19'23'22" W 6.30' L9 N 02'30'24" E 5.87' L20 N 36'01'18" W 11.75' L10 N 22'41'42" W 5.29' L21 N 54'31'58 E 2.03' L11 N 64'06'34" W 9.29' THE COORDINATES SHOWN ON THIS PLAT ARE BASED ON THE GEORGIA GRID COORDINATE SYSTEM EAST ZONE NAD 83 (2011 ADJUSTMENT) USING A CHAMPION TKO DUAL FREQUENCY GPS UNIT AND eGPS VRS NETWORK. N 737878.8195 E 1066196.2382 R.B.S. EAVES CITY OF TYBEE ISLAND N 737897.7631 S 03'33'09" E 1066136.7379m-...,, 14 81' R.B.S. C.O.W.(TYPICAL) 0 F.B. 013-50-H C.O.W. = CORNER OF CONCRETE WALL C.O.D. = CORNER OF WOOD DECK C.H.R. = CORNER OF HANDRAIL C.O.B. = CORNER OF BUILDING R.B.S. = 1/2" REBAR SET GRID NORTH CITY OF TYBEE NORTH BEACH PARKING LOT WOOD RAMP S 03'30'39" W fP0INT ON EDGE OF RAMP 33,26'::::;:::_.. S 03'26.36" W .• ................................... .............................. ' D.................................. 25 49 LNI C.O.D. . . C.O.D. I____. ::WOODDECKiFttirii!:r`.r "Ny ............................. . MI O O N� :: C:::.::: L3{'C.o.O. .. ::............ _..._... . c.o. - R) co 1n EXISTING ONE STORY FRAME BUILDING (NORTH BEACH GRILL) n o 13.. L16 �r 114 A7 00` C.H.R. CITY OF TYBEE ISLAND NORTH BEACH REST ROOMS C.O.D. C.H.R. CO N POINT ON WALL C.O.W.(TYPICAL) CITY OF TYBEE ISLAND PORTION OF BATTERY BRUMBY STATE OF GEORGIA CHATHAM COUNTY NOTE: ACCORDING TO 'FIRM' 13051CO213 & 214 DATED 9/26/08 THIS SITE IS IN A VE -15 FLOOD ZONE. PLAT SHOWING LOCATION OF PROPOSED 0.14 ACRE LEASED AREA FOR THE NORTH BEACH GRILL, LOCATED IN FORT SCREVEN WARD, TYBEE ISLAND, GEORGIA AND KNOWN AS No. 33 MEDDIN DRIVE. FOR: CITY OF TYBEE ISLAND DATE OF SURVEY: MAY 3, 2016 DATE OF PLAT:. MAY 5, 2016 SCALE: 1"= 20' a' 20' 40' BERT BARRETT, JR. LAND SURVEYING, P.C. 145 RUNNER ROAD SAVANNAH, GA. 31410 (912) 897-0661 LSF000671 E.O.C. PER POINT < ERROR/POINT ADJ. METHOD E.O.C. PLAT TOTAL STATION < 0.05 NONE 1/ 26,851 TRIMBLE 5603 THIS SURVEY WAS PREPARED IN CONFORMITY WITH THE TECHNICAL STANDARDS FOR PROPERTY SURVEYS IN GEORGIA AS SET FORTN IN CHAPTER 180-7 GF THE RULES OF THE GEORGIA BOARD OF REgS1RAIION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS AND A5 SET FORTH IN THE GEORGIA PLAT ACT QQG.A. 15-6-67. EXHIBIT "B" INSURANCE SPECIFICATIONS GENERAL LIABILITY: Occurrence Limit (Bodily Injury / Property Damage) $1,000,000 Occurrence Limit (Personal Injury) $1,000,000 Premises Medical Payments $ 5,000 Fire Damage Liability $ 100,000 Products / Completed Operations Aggregate $1,000,000 General Aggregate $1,000,000 REQUIREMENTS: • 1996 Commercial General Liability (ISO) Form, or broader; • Endorsed to include as Additional Insured(s): The City of Tybee Island, Georgia, a municipal corporation • Additional Insured Endorsement must include Products/Completed Operations • Endorsed to include Blanket Contractual Liability coverage for this agreement and Broad Form Property Damage, including Products/Completed Operations, if not included in the policy form; • Coverage provided on a primary and non-contributory basis, as to any coverage maintained by the Additional Insured. II. LIQUOR LEGAL LIABILITY: Occurrence Limit $1,000,000 III. WORKERS' COMPENSATION: Georgia's applicable Statutory Benefits; IV. UMBRELLA LIABILITY: Liability per Occurrence $1,000,000 REQUIREMENTS: • Must include coverage for the Indemnity provision contained herein. • Endorsed to include as Additional Insured: The City of Tybee Island, Georgia, a municipal corporation V. FIRE/CASUALTY: • Fire and extended coverage insurance (contents broad form) on Tenant's personal property located in the Premises in amounts reasonably deemed adequate by Tenant to fully insure such personal property. 1725601.1 16 1725601.1 VI. ALL POLICIES: • Additional Insured status (where required) provided on a non-contributory basis; • 30 -day Notice of Cancellation with notice to Certificate Holder required; • Endorsed to include Waiver of Subrogation in favor of Additional Insured; • Insurance carrier having a current A. M. BEST CO. rating of A -VII, or better; • Insurance carrier must be licensed on an admitted basis to do business in the State of Georgia; • Coverage must be evidenced by Certificate of Insurance 17