HomeMy Public PortalAboutnb grill.pdfMODIFICATION AGREEMENT
AND RELEASE BY TENANT
WHEREAS, the City of Tybee Island (hereinafter "the City") owns a certain property with
a restaurant building thereon located in the North Beach area of the City; and
WHEREAS, the City has leased the property and improvements pursuant to a Lease
Agreement, a copy of which is attached hereto, to the North Beach Bar and Grill, LLC f/k/a
Beachcremes, Inc. (hereinafter "NBGR") and the lease attached hereto has renewed for an
additional five-year term effective 4/1/2022; and
WHEREAS, a dispute arose between the parties hereto concerning the City's storing
hurricane debris in the parking lot adjacent to the building and property which is the subject matter
of the lease which allegedly disrupted the business and operations of NBGR; and
WHEREAS, the NBGR initiated a lawsuit, Civil Action No. STCV2001851-SA, claiming
damages and other relief against the City for alleged losses occurring as a result of the storage of
the debris following Hurricane Matthew; and
WHEREAS, at the time of Hurricane Matthew and the alleged damage claim, NBGR was
under a different lease agreement with the City; and
WHEREAS, the City denies any liability to the NBGR and/or its principals for the claims
asserted or for any claims whatsoever and the Agreement referred to herein is not an admission of
any fault, liability, or wrongdoing by the City, its agents, employees and/or representatives, all of
which continues to be denied; and
WHEREAS, in order to resolve all issues between the parties, conclude the litigation and
document the Agreement between the parties hereto, this Agreement is entered in order to confirm
the settlement of the claims upon the following terms and conditions:
NOW, THEREFORE, it is hereby agreed as follows:
1. NBGR will cause the Civil Action No. STCV2001851-SA pending in the State Court
of Chatham County to be dismissed with prejudice and will execute any other
appropriate documents to ensure the case is completely dismissed, including all court
required forms to close the case.
2. It is agreed that that the consideration of rent foregone and reduced is made in order to
fully resolve the dispute and is made without any admissions of fault or liability on the
part of the City and, in fact, the City expressly denies any liability or responsibility
whatsoever on its part, or that of its agents, employees, or representatives and it is
making the compromise described herein in order to buy peace and avoid further
expense and litigation costs.
3. In consideration of the reduced rent by $1,000.00 per month for a period of thirty (30)
months beginning on August 1, 2022 and ending on February 28, 2025 for the
resolution of all claims, NBGR and/or its principals ("Releasing Parties") have or claim
to have against the City, its agents, representatives, employees, or contractors, the
Undersigned Releasing Parties do hereby release, acquit and discharge any claims for
damages, compensation, loss or any other assertion of a claim to relief arising from or
alleged to result from the storage of hurricane debris in the North Beach parking lot
following Hurricane Matthew in 2016 through the current date. And further,
notwithstanding any terms or provisions of the current lease, recognizing the needs of
the City in emergency circumstances, the Releasing Parties discharge and hold
harmless the City for any claims which may arise in the future from the necessity of
the storage of storm debris or other necessity or emergency of man-made, natural, or
by Acts of God or any other cause whatsoever for the City taking control of the use of
the parking lot or lots consisting of the North Beach parking lot and/or the parking lot
adjacent to the generally western side of the NBGR business, except as expressly
limited herein. The Undersigned acknowledges that the City retains all rights to control
the land area around the leased premises in the City's absolute discretion, and it may
close the entire parking or other areas, temporarily or permanently without entitlement
or right to compensation, damages, or claim of any type whatsoever by the Releasing
Parties.
4. Notwithstanding the foregoing, the parties agree that the City may utilize the parking
lots for storm debris storage and/or other City needs, particularly from or arising from
emergencies of any type and it may close lots to all access when necessary, however it
is recognized that the NBGR has certain legal requirements with regard to parking
under City ordinances and/or Health Department compliance requirements and certain
needs for the successful operation of its restaurant such that, in the event it is
determined that NBGR is prohibited by the City or the Health Department from legally
operating as a result of the City's use of all parking lots available in proximity to
NBGR, that all rent may be forgiven during that time period upon application by the
NBGR to the then current City Council. Unless for some reason the City requires use
of the parking lots in proximity to NBGR under its legal authority to do so, there will
be no cause of action for or in the NBGR against the City arising from such action.
However, nothing will prevent the NBGR petitioning the then City Council for relief,
forbearance or other accommodation as a result of the then situation and the City agrees
that the existence of this Agreement will not prevent nor be the basis for the denial of
such request except to the extent such claims are expressly released herein. NBGR
agrees that any decision of the City Council in reference to a request for forbearance,
or relief, or other accommodation as a result of lots being closed and used by the City,
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once acted upon by the then sitting City Council, shall not be actionable in any way,
under any theory and the City Council's decision on such request is final.
Except as expressly modified herein, the terms of the lease attached hereto shall remaining
in full force and effect. The provisions of the lease in Section 3(d)
increase shall not be based upon the actual rent paid as modified herein but rather are to be
calculated based on the original rental amounts. That is, for the rent commencing on August 1,
2022, the total rent will be reduced by $1,000.00 per month but the percentage increase to go into
effect May, 2023 shall be calculated as if the reduction as modified herein had not occurred: 3%
of the original lease amounts is calculated and added to what the rent would be and then reduced
by the $I,000.00 agreed to herein until the March 1, 2025 payment, at which time no further
reductions will apply.
WITNESS:
WITNESS:
572-572,20516 Releaeo 6.21-2022
I Item #10. i
LANDLORII:
THE CITY OF TYBEE ISLAND, GEORGIA,
A MUNICIPAL CORPORATION
Shirley Sessions, Mfror
Jan LeViner, Clerk of Council
Approved as to form: ,� , k -c t
Edward M. Hughes, City Attorney
TENANT:
NORTH BEACH BAR & GRILL, LLC
By:
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Kathryn L. Williams, Manager
George.$ rigg,, , Mair4;
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