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
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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.
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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
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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
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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
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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.
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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
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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
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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