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2009-54 Lease Agreement - Tennis Pro Shop Services RESOLUTION 2009-54 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA APPROVING A LEASE AGREEMENT WITH TENNIS AND MORE, LLC TO CONDUCT TENNIS PRO SHOP SERVICES AT THE VILLAGE TENNIS CENTER AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE THE AGREEMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, in conjunction with the completion of the new Village Tennis Center, Village Administration solicited proposals for operation of the pro shop; and WHEREAS, Village Administration is recommending acceptance of the proposal submitted by James Bewley of Tennis and More, LLC and execution of a Lease Agreement with Tennis and More, LLC relating to the operation of the pro shop; and WHEREAS, the Village Council determines that the execution of the Lease Agreement is in the best interests of the residents and citizens of the Village of North Palm Beach. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals are ratified as true and incorporated herein. Section 2. The Village Council of the Village of North Palm Beach, Florida, hereby approves the Lease Agreement with Tennis and More, LLC to conduct tennis pro shop services at the Village Tennis Center, a copy of which is attached hereto as Exhibit "A" and incorporated herein, and authorizes the Mayor and Village Clerk to execute same on behalf of the Village. Section 3. This Resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS 24th DAY OF (Village Seal) ATTEST: ~ -~~cG~C~~~ • VILLAGE CLERK l s LEASE AGREEMENT TO CONDUCT TENNIS PRO SHOP SERVICES AT THE NORTH PALM BEACH TENNIS CENTER THIS LEASE AGREEMENT is made and entered into by and between the VILLAGE OF NORTH PALM BEACH, a Florida municipal corporation, 501 U.S. Highway 1, North Palm Beach, FL 33408, hereinafter referred to as "VILLAGE", and TENNIS AND MORE, LLC, a Florida limited liability company, 145 Bella Vista Way, Royal Palm Beach, FL 33411, hereinafter referred to as "LESSEE". WITNESSETH WHEREAS, the VILLAGE is the owner of the Village of North Palm Tennis Center located at the Village of North Palm Beach Country Club; and WHEREAS, LESSEE desires to lease from the VILLAGE certain facilities within the Tennis Center to provide tennis pro shop products and services to members and guests of the Tennis Center. NOW, THEREFORE, in consideration of the mutual benefits and promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. PREMISES AND ACCEPTANCE BY LESSEE. In accordance with the terms and conditions of this Agreement, and in consideration of the payment of rent as provided herein, the VILLAGE agrees to lease to LESSEE and LESSEE agrees to lease from the VILLAGE, the following Premises: Approximately 560 square feet of tennis pro shop space within the North Palm Beach Tennis Center building, together with the non-exclusive right to utilize the restrooms and upstairs storage area located within the building. Use of the upstairs storage area shall be in accordance with posted load limits. 2. TERM The initial term and duration of this Lease shall be for a period of two (2) years commencing on October 1, 2009, and ending on September 30, 2011. 3. LESSEE OBLIGATIONS. A. During the Term of the Lease Agreement, LESSEE shall operate a tennis pro shop at the Premises a minimum of six (6) days each week and a minimum of five (5) hours per day. LESSEE shall only operate the tennis pro shop when the Tennis Center is open. B. LESSEE shall be the sole and exclusive concessionaire providing tennis equipment and pro shop services at the Village of North Palm Beach Country Club. Pro shop 1 services shall include, at a minimum, racquet stringing, racquet equipment and accessories from numerous suppliers, such as Adidas, Babolat, Bolle, Fila, Gamma, Head, Nike, Prince, Unique Sports and Wilson. LESSEE reserves the right to add or delete suppliers based on sales or quality provided that any substituted brands or suppliers are of similar quality and LESSEE maintains a diverse line of equipment and accessories. C. LESSEE shall provide a comprehensive line of select tennis racquets and accessories, including racquet bags, grips (replacement grips and overgrips), tennis balls, string, vibration dampeners, hats, visors, wrist bands and other miscellaneous accessories. D. LESSEE shall provide tennis apparel and footwear products, featuring, among others, Nike and Adidas, and shall be responsible for all costs of product inventory, in addition the maintenance and safekeeping of all inventory. E. LESSEE shall devote at least one display rack to the sale of apparel depicting the authorized Village of North Palm Beach logo. The Village shall supply the authorized logo to LESSEE. F. LESSEE shall provide, at its sole cost, the staffing necessary to operate the tennis pro shop on the Premises and shall establish the necessary merchant and bank accounts to conduct its business and shall provide all equipment necessary to process cash and credit card sales. G. LESSEE shall report to the Village Manager or his or her designee. 4. CONDITION OF THE PREMISES A. LESSEE hereby acknowledges that LESSEE has examined the Premises and that the Premises is in good condition, free from defects or hazards and is sufficient for the purposes for which LESSEE proposes to utilize the Premises. B. LESSEE shall not, without the prior written approval of the VILLAGE, make any changes to or paint the Premises or install or remove any lighting or decorations. Furthermore, the VILLAGE Manager or his or her designee must give written approval for the erection, installation and utilization of any signs, decorations or advertising media. C. It is specifically understood and agreed that VILLAGE has no obligation or duty to inspect the Premises; however, the VILLAGE and each of its authorized agents and employees, shall have the right to enter the Premises during all reasonable hours to examine the property. This right of entry shall likewise exist for the purposes of removing placards, signs, fixtures or alterations that do not conform to this Lease Agreement. However, LESSEE shall remain under a continuing obligation during Phis Lease Agreement to immediately notify the VILLAGE in writing of any condition existing on or in the Premises or the property that maybe considered dangerous or hazardous, even if such condition is open and obvious. D. It is agreed and understood that LESSEE shall not commit, suffer or permit to be done or committed any waste in or on the Premises or any part thereof, and in the event this provision is violated, the VILLAGE shall have the right to take such action, in law or in equity, 2 as VILLAGE shall deem appropriate for the preservation of the Premises. Such option may include, but shall not be limited to, entering upon said premises to rectify said condition, preserve the Premises and take such action as the VILLAGE may deem appropriate, all without liability to the VILLAGE. A violation of this condition by LESSEE shall constitute a breach of the Lease Agreement. 5. LICENSES AND TAXES. LESSEE, at his expense, shall obtain all necessary State, Federal and local licenses and permits, and shall comply with all applicable Federal, State or local rules and regulations, including the Codes and Ordinances of the VILLAGE. 6. EQUIPMENT AND PERSONAL PROPERTY MAINTENANCE. A. The VILLAGE will provide LESSEE with the equipment and personal property listed on Exhibit "A" attached hereto and made a part hereof. The equipment and personal property is hereby included in the Premises and made a part of this Lease Agreement and includes all items specifically mentioned in Exhibit "A". LESSEE shall have the sole responsibility for the repair, replacement and maintenance of all equipment and personal property in the Premises. B. LESSEE is responsible for the day-to-day cleaning of all equipment and personal property. LESSEE shall use and operate said equipment and personal property in a reasonable, prudent manner so as not to accelerate the deterioration of it. LESSEE shall notify VILLAGE of any apparent operational dysfunction of any part of said equipment or personal property. Said notification shall be in writing and shall occur immediately, but no later than five (5) business days after LESSEE should have reasonably discovered any such dysfunction. Notification to the VILLAGE is provided for the sole purpose of obtaining written approval for any repair of such equipment or personal property by LESSEE to ensure that any such repair does not diminish the value of the equipment or personal property. Any equipment or personal property that is replaced under the provisions of this Lease Agreement shall be replaced at LESSEE'S expense with the same or substantially similar item of an equal or better quality in good condition. If LESSEE provides such replacement equipment or replacement personal property as set forth in Exhibit "A", then said equipment or personal property shall become the equipment and personal property of the VILLAGE. C. All VILLAGE equipment and personal property, along with the Premises itself, shall be delivered to the VILLAGE by LESSEE upon termination or expiration of this Lease Agreement without demand by the VILLAGE in the good repair and condition, less reasonable wear and tear. 7. UTILITIES. LESSEE shall be responsible for full payment of all telephone and data communication lines necessary for the operation of the tennis pro shop. The VILLAGE shall be responsible for payment of all remaining utilities, including, but not limited to, electricity, water and sewer service and the alarm system. 3 8. HEALTH, FIRE AND SAFETY REGULATIONS. A. LESSEE shall keep the Premises clean, satisfactory and in sanitary condition according to conditions approved by the VILLAGE and as regulated by Federal, State and local regulations and agencies. All refuse and waste materials created in the exercise of this Lease Agreement shall be removed by LESSEE to designated collection points to be removed by the VILLAGE. All State, County and local fire, health and safety regulations shall be strictly complied with and at the sole cost of LESSEE. B. LESSEE agrees to permit the appropriate officials to enter the Premises for the purpose of conducting an inspection to ensure compliance with all codes, ordinances, regulations, statutes or other laws. 9. MAINTENANCE AND REPAIRS. A. Once this Lease Agreement is approved and executed by the VILLAGE, LESSEE shall be responsible for repairs and maintenance to all equipment and personal property on and in the Premises as stated above in Paragraph (6) of this Lease Agreement. B. The VILLAGE shall be responsible for maintaining the basic infrastructure, which includes the parking lot, exterior landscape, exterior walls, foundation, roof, and components of the electrical, plumbing, HVAC, water and sewer systems for the Premises, in addition to all other portions of the Tennis Center not occupied by LESSEE, at its sole expense. However, LESSEE shall continue to be solely responsible for all other maintenance of the Premises and shall keep same free and clear of hazards, debris or obstructions. Additionally, VILLAGE shall have no obligation to inspect or visit the Premises to determine the condition of the basic infrastructure of the Premises. It shall be the sole responsibility of LESSEE to inform the LESSOR in writing of any defect or condition in the basic infrastructure that is in need of repair or maintenance, even if such conditions are considered open and obvious. Said notice shall be furnished by LESSEE within five (5) business days of the occurrence of the defect or condition. LESSEE shall be solely responsible for any claims, damages or personal injuries that occur to persons or property lawfully on the Premises described in Paragraph 1 above as a result of any defect or condition of which it failed to notify VILLAGE of and agrees to indemnify and hold harmless the VILLAGE for any claims, losses or damages as a result of all conditions or defects not so notified of. C. LESSEE shall obtain the permission of the VILLAGE Manager or his or her designee and a VILLAGE permit, if necessary, to install or attach to the Premises any equipment or fixtures desired by LESSEE, and if LESSEE ever desires to remove the same, or is required by the VILLAGE to remove the same for any reason consistent with this Lease Agreement, LESSEE shall restore the area of installation or attachments substantially to its condition prior to installation or attachment and make the fact of removal as inconspicuous as reasonably possible. All fixtures which LESSEE does not remove upon LESSEE ceasing to operate or the termination of this Lease Agreement shall be the property of the VILLAGE, without expense to the VILLAGE. 4 10. INSURANCE. A. During the term of this Lease Agreement, the VILLAGE, at its expense, shall maintain casualty insurance upon the building and VILLAGE'S personal property therein in which the Premises is located. This insurance shall protect the VILLAGE from, and shall insure against, loss or damage by fire, windstorm, theft, vandalism and other like casualties. Any sums payable by reason of damage insured against in said casualty insurance policies shall be payable to the VILLAGE and VILLAGE may, but shall not be obligated, to utilized said sums for the reconstruction, replacement or the repair of the loss covered. Any excess of such amount received upon such policies shall be the property of the VILLAGE. In the event the Premises shall be so destroyed or so damaged or injured by fire or other casualty whereby the same shall be untenantable, all insurance proceeds shall be paid to VILLAGE but VILLAGE shall have no obligation to rebuild or repair the damage or render the Premises tenantable but there shall be a prorated abatement or prorated refund of the rental amounts required to be paid hereunder. B. It is specifically provided, as part of this provision, that the VILLAGE shall not be obligated in any way whatsoever to provide any insurance protecting LESSEE, it being the specific intent of the parties that the insurance to be provided in subparagraph (A) shall be for the protection of the VILLAGE'S property and not the property of LESSEE. LESSEE may, at its own expense, obtain such casualty insurance, as in the exercise of its discretion it deems appropriate, so as to protect any property upon the premises owned by it. C. Commercial General Liability: To the extent the insurance described herein is available in the commercial market, LESSEE shall maintain and prior to commencement of this Lease Agreement, provide the Village with evidence of Commercial General Liability insurance to include: (1) Premises/Operations, Products/Completed Operations, and Personal/Advertising injury for limits of not less than $1,000,000 per occurrence; (2) Fire Damage for limits of not less than $250,000 per occurrence; (3) Medical Payments for limits not less than $5,000 per person; and, (4) a General Aggregate limit of not less than $2,000,000. The policy shall also provide the VILLAGE with a thirty (30) Day Written Notice of Cancellation or Non-Renewal and include the VILLAGE as an Additional Insured. D. Workers' Compensation and Employer's Liability: If LESSEE falls under the State of Florida Workers' Compensation Law, coverage shall be provided for all employees. The coverage shall be for statutory limits in compliance with the applicable state and federal laws. The policy must include Employer's Liability with a limit of $500,000.00 for each accident or disease. The policy shall also provide the VILLAGE with a thirty (30) day Written Notice of Cancellation or Non-Renewal. E. If, at any time, any of the policies shall be or become unsatisfactory to the VILLAGE as to form or substance, or if any of the carriers issuing such policies shall be or become unsatisfactory to the VILLAGE, LESSEE shall promptly obtain a new and satisfactory policy in replacement. If any policy is canceled and is not promptly replaced, this Lease Agreement shall automatically terminate when any insurance coverage expires. 5 11. INDEMNITY AND HOLD HARMLESS. A. Except for known conditions for which LESSEE notifies the VILLAGE, LESSEE shall have the sole responsibility to ensure that the Premises is maintained in a safe and non- hazardous condition. Except for known conditions for which LESSEE notifies the VILLAGE, LESSEE agrees to indemnify and hold harmless the VILLAGE for any damages or personal injury or death occurring to individuals or property on the Premises as a result of any condition on the Premises or LESSEE'S failure to comply with the provisions of Section 4.C. LESSEE agrees and understands that indemnification under this provision includes all claims, damages, all costs and attorneys' fees through and including all trial and appellate proceedings and further includes any costs and attorneys' fees incurred in establishing VILLAGE's right and entitlement to indemnification under this provision. B. LESSEE, for itself and on behalf of its legal representatives, waives, releases and forever discharges VILLAGE and its officers, employees and agents, committees and representatives and their successors and assigns of and from every and all claims, actions, and causes of action for any personal injury, which maybe suffered or sustained by anyone entering onto the Premises in and agrees to indemnify and hold harmless VILLAGE from any such claims or causes of action by whomever or wherever made, including costs and expenses of legal defense through all trial and appellate proceedings in the event a claim is asserted. LESSEE agrees and understands that indemnification under this provision includes all claims, damages, all costs and attorney's fees through and including all trial and appellate proceedings and further includes any costs and attorneys' fees incurred in establishing VILLAGE's right and entitlement to indemnification under this provision. 12. ASSIGNMENT AND SUB-LEASE. This Lease Agreement shall not be assigned or sub-leased in whole or in part by LESSEE without the express written consent of the VILLAGE, which consent shall be determined at the sole discretion of the VILLAGE. 13. ANTI-DISCRIMINATION. LESSEE shall not discriminate against any employee or applicant for employment to be employed in the performance of this Lease Agreement with respect to its hire, tenure, term, condition or privileges or employment, or any matter directly or indirectly related to employment, because of his or her race, color, religion, national origin, ancestry, sex or age. LESSEE shall not discriminate against hiring the disabled. 14. SCHEDULE OF RENT. A. LESSEE agrees to pay and the VILLAGE agrees to accept as rent for the Premises during the first year of the Lease Agreement, the sum of SEVEN HUNDRED TWENTY DOLLARS ($720.00). Rent shall be paid in consecutive monthly installments on the first day of each month as further described below, plus all sales, use and other specified taxes and charges, if any. The rent paid by LESSEE during the second year of the lease term, commencing October 1, 2010, shall be negotiated by the parties. 6 B. LESSEE shall remit any taxes and charges payable with respect to the rental of real property and tangible personal property to VILLAGE on a monthly basis as stated herein and in accordance with the applicable Florida Department of Revenue rules and in compliance with any applicable Florida Statutes. C. Each monthly payment shall be due and payable to the VILLAGE at the beginning of each month and shall be past due creating a violation of this Lease Agreement if paid after the tenth (10th) day of each calendar month. 15. DEPOSIT. Upon execution of the Agreement, LESSEE shall pay the sum of $720.00 to the VILLAGE as non-interest earning security for LESSEE'S faithful performance of each and every of LESSEE'S obligations under this Lease Agreement, including, but not limited to the timely payment of monies. Upon termination or expiration of the Lease Agreement and upon LESSEE's faithful performance of each and every of its obligations in this Lease Agreement, the security deposit shall be returned to LESSEE less any deductions itemized in writing by the VILLAGE within thirty (30) days after the termination of this Lease Agreement. Damages to the Premises, with the exception of normal wear and tear and depreciation, shall be deducted from the deposit and/or such other amount necessary to cure any default by LESSEE, or to compensate the VILLAGE for any damage or loss suffered by the VILLAGE by reason of LESSEE's default shall be deducted from the deposit. 16. LIENS ON LESSEE'S PROPERTY. LESSEE shall pay all debts and obligations in the conduct of business on the Premises and LESSEE shall not incur any indebtedness or lien which would impair LESSEE's ability to fully perform the terms and provisions of this Lease Agreement. LESSEE shall permit no improvements to the Premises or other property of VILLAGE to be made which might result in a mechanic's lien against said Premises or other property without first providing a performance and payment bond to pay for said improvements. LESSEE shall not advertise or in any way inform the public or suppliers that the Premises are operated by the VILLAGE or the North Palm Beach Country Club, and shall inform all third parties that LESSEE operates the Premises. 17. RIGHTS OF VILLAGE NOT WAIVED. The failure of the VILLAGE to exercise any right hereunder, including any rights to terminate, shall not be waived as to any subsequently arising right to act hereunder or as to any default to LESSEE thereafter occurring; and, a failure to act by the VILLAGE shall not constitute a waiver as to any subsequent arising right to act on default. 18. DEFAULT. A. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease Agreement by LESEE: 1. The vacating or abandonment of the Premises by LESSEE. 7 2. The failure by LESEE to make payment of rent or any other payment required to be made by LESSEE under this Lease Agreement, as and when due, where such failure shall continue for a period of ten (10) days after written notice thereof from the VILLAGE to LESSEE. 3. The failure by LESSEE to observe or perform any of the covenants, conditions or provisions to be observed or performed by LESSEE, where such failure shall continue for a period of ten (10) days after written notice thereof from the VILLAGE to LESSEE; provided, however, that if the nature of LESSEE'S default is such that more than ten (10) days are reasonably required for its cure, LESSEE shall not be deemed to be in default if LESSEE commences such cure within said ten-day (10) period and thereafter diligently pursues such cure to completion. 4. If LESSEE should commence, in any court pursuant to any statute either of the United States or of any State, an insolvency or bankruptcy proceeding (including without limitation a proceeding for liquidation, reorganization or for adjustment of debts of an individual with regular income), or if such a proceeding is commenced against LESSEE or any said guarantor and either an order for relief is entered against such party or such party fails to secure a discharge of the proceeding within one hundred and twenty (120) days of the filing thereof, or if LESSEE or any said guarantor becomes insolvent or is unable or admits in writing his or her inability to pay his or her debts as they become due, or makes an assignment for the benefit or creditors or petitions for or enters into an agreement within his or her creditors or a custodian is appointed or takes possession of LESSEE'S or any said guarantor's property, whether or not a judicial proceeding is instituted in connection with such arrangements or in connection with the appointment of such custodian. B. In the event of any default or breach by LESSEE, the VILLAGE may at any time thereafter, without notice or demand and without limiting the VILLAGE in the exercise of any right or remedy which the VILLAGE may have any reason of such default or breach, do the following: 1. Declare the entire rent for the balance of the Initial Term, or any portion thereof, due and payable forthwith, and bring an action for the recovery thereof. 2. Terminate LESSEE's right to possession of the Premises by any lawful means and retake possession thereof for the account of the VILLAGE, in which event LESSEE shall immediately surrender possession of the Premises to the VILLAGE and all further liability under this Lease Agreement on the part of LESSEE and the VILLAGE shall terminate. 3. Maintain LESSEE'S right to possession, in which event this Lease Agreement shall continue in effect whether or not LESSEE shall have abandoned the Premises. In such event, the VILLAGE shall be entitled to relet the Premises and to enforce all of the VILLAGE's rights and remedies under this Lease Agreement, including the right to recover the rent and other sums due as they become due. 8 4. Pursue any other remedy now or hereafter involving LESSEE under the Bankruptcy Code, 11 U.S.C. Section 101 et seq., if this Lease Agreement is assumed by LESSEE's trustee in bankruptcy (after he or she has cured all existing defaults, compensated the VILLAGE for any loss resulting therefrom and provided adequate assurance of future performance), then this Lease Agreement may not be assigned by the trustee to a third party, unless such party (a) executes and delivers to the VILLAGE an agreement in recordable form whereby such party assumes and agrees with the VILLAGE to discharge all obligations of LESSEE under this Lease Agreement; and (b) has a net worth and operating experience at least comparable to that possessed by LESSEE and any guarantor hereof as of the time of execution of this Lease Agreement. C. If the VILLAGE should exercise any of its remedies hereunder, LESSEE shall be liable for and shall pay to the VILLAGE the costs of removing and storing LESSEE'S or other occupant's property; the costs of repairing, altering, remodeling or otherwise putting the Premises into condition that approximates the condition at the time of commencement of the Lease Agreement, ordinary wear and tear excepted; real estate commissions actually paid; that portion of the leasing commission paid by the VILLAGE applicable to the unexpired term of this Lease Agreement, if applicable; and, all reasonable expenses incurred by the VILLAGE to relet the premises, including attorney's fees. D. If this Lease Agreement should be terminated, or the Lease should expire, the VILLAGE shall have the immediate right thereafter to reenter the Premises and to remove all persons and LESSEE's property therefrom. Such property may be stored in a public warehouse or elsewhere at the cost of, and for the account of LESSEE, all without service of notice or resort to legal process (all of which LESSEE expressly waives). In such event, the VILLAGE shall not be deemed guilty of trespass or become liable for any loss or damage which maybe occasioned thereby. E. The rights and remedies granted herein to the VILLAGE are distinct, separate and cumulative remedies, and the exercise of any of them shall not be deemed to exclude the VILLAGE's right to exercise any or all of the others. All charges payable to LESSEE under the terms of this Lease Agreement shall be deemed rent for the purpose of the VILLAGE exercising its remedies. F. No waiver of any covenant or condition or of the breach of any covenant or condition of this Lease Agreement shall be taken to constitute a waiver of any subsequent breach of such covenant or condition nor to justify or authorize the non-observance on any other occasion of the same or of any other covenant or condition hereof, nor shall the acceptance of rent by the VILLAGE at any time when LESSEE is in default under any covenant or condition hereof be construed as a waiver of such default or of the VILLAGE's right to terminate the Lease Agreement on account of such default, nor shall any waiver or indulgence granted by the VILLAGE to LESSEE be taken as an estoppel against the VILLAGE, it being expressly understood that if at any time LESSEE should be in default in any of his or her covenants or conditions hereunder, an acceptance by the VILLAGE of rent during the continuance of such default or the failure on the part of the VILLAGE promptly to avail itself of such other rights or remedies as the VILLAGE may have shall not be construed as a waiver of such default, but the 9 VILLAGE may at any time thereafter, if such default continues, terminate this Lease Agreement on account of such default. G. LESSEE waives all claims for damages by reason of the VILLAGE'S exercising its right to re-enter the Premises and take possession of the property located therein, or damages by reason of any distress warrant, forcible detainer proceedings, sequestration proceedings or other legal process. H. The VILLAGE shall not be in default unless the VILLAGE fails to perform its obligations required of the VILLAGE within a reasonable time, but in no event later than ten (10) days after written notice by LESSEE to the VILLAGE specifying wherein the VILLAGE has failed to perform such obligations; provided, however, that if the nature of the VILLAGE'S obligations is such that more than ten (10) days are required for performance, the VILLAGE shall not be in default if the VILLAGE commenced performance within such ten (10) day period and thereafter diligently prosecutes the same to completion. I. LESSEE hereby acknowledges that late payment by LESSEE to the VILLAGE of rent and other sums due hereunder will cause the VILLAGE to incur costs not contemplated by this Lease Agreement, the exact amount of which will be extremely difficult to ascertain. Accordingly, if any installment of rent or any other sum due from LESSEE shall not be received by the VILLAGE or the VILLAGE's designee within ten (10) days after such amount shall be due, LESSEE shall pay to the VILLAGE a late charge equal to five percent (5%) per annum of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs the VILLAGE will incur by reason of late payment by LESSEE. Acceptance of such late charge by the VILLAGE shall in no event constitute a waiver of LESSEE's default with respect to such overdue amount, nor prevent the VILLAGE from exercising any of the other rights and remedies granted hereunder. 19. TERMINATION OF AGREEMENT BY THE VILLAGE Notwithstanding the provision of Section 20 above, or any other provision of this Lease Agreement, the VILLAGE may terminate the Lease Agreement, for any or no reason, by providing LESSEE with sixty (60) days' written notice. 20. NOTICES. Any notice, request, demand, approval, consent or other communication which the VILLAGE or LESSEE may be required or permitted to give to the other party shall be in writing and shall be mailed by certified mail, return receipt requested, at the address specified below. Notwithstanding the foregoing, the VILLAGE may give notice to LESSEE by personal delivery to the Premises. TO LESSEE: TENNIS AND MORE, LLC 145 Bella Vista Way Royal Palm Beach, FL 33411 Attn: James Bewley 10 TO VILLAGE: VILLAGE OF NORTH PALM BEACH ATTN: James Knight, Village Manager 501 U.S. Highway 1 North Palm Beach, FL 33408 Notice shall be deemed given when hand delivered or not later than three (3) days after same shall have been deposited in an official United States Post Office, postage prepaid. 21. SURRENDER. Upon the expiration or termination of this Lease Agreement, LESSEE shall deliver and surrender to the VILLAGE the Premises in good repair and condition with ordinary wear and tear excepted, and shall deliver any keys in LESSEE'S possession to the VILLAGE. Before surrendering the Premises, LESSEE shall remove all of its personal property. If LESSEE should fail to restore the Premises as aforesaid or if LESSEE should fail to repair any damage caused by the removal of LESSEE's property from the Premises, the VILLAGE may restore the Premises, and all such costs incurred thereby shall be an expense of LESSEE. VILLAGE shall have the right to defray such costs by deducting same from LESSEE'S security deposit (if required). LESSEE'S obligation to perform this provision shall survive the termination or expiration of this Lease Agreement. If LESSEE should fail to remove its property upon the termination or expiration of this Lease Agreement, said property shall be deemed abandoned and shall become the property of the VILLAGE. 22. HOLDING OVER. If LESSEE should remain in possession of all or any part of the Premises after the termination or expiration of this Lease Agreement, with the consent of the VILLAGE, which the VILLAGE shall have the unconditional discretion to grant or deny, then LESSEE shall be deemed to hold the Premises from month to month subject to all of the terms and provisions thereof, except only as to the term of this Lease Agreement; provided, however, if LESSEE holds over without the consent of the VILLAGE, then the rent payable during such period as LESSEE shall continue to hold the Premises or any part thereof shall be one hundred twenty five percent (125%) of the highest monthly payment of rent and additional charges theretofore paid during the term of the Lease Agreement. 23. ENFORCEMENT COSTS. In any legal action or other proceeding is brought for the enforcement of this Lease Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as court awarded costs (including, without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or proceeding, in addition to any other relief to which such party or parties may be entitled. 11 24. MISCELLANEOUS. A. The parties hereto specifically intend that LESSEE'S operation and conduct of business upon and in the Premises shall be solely as an independent contractor and nothing herein is intended nor shall it be construed by the parties hereto, nor by any third party, as creating a relationship of principal and agent, employer or employee, partnership or joint venture between the parties hereof. Neither the method of computation of rent, nor any other provisions contained herein, nor any acts of the parties hereto, shall be deemed to create any relationship between the parties hereto other than the relationship of Lessor and Lessee. B. The invalidity of any provision of this Lease Agreement as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision hereof. C. Time is of the essence in every particular, especially where the obligation is t® pay monies. D. In the event any payments are not made as and when due in accordance with the terms and conditions of this Lease, or should it become necessary for the VILLAGE to make any payments otherwise required to be made by LESSEE under this Agreement, then all such payments shall bear interest form the date due at the highest lawful rate of interest. E. The captions used herein are for convenience only and do not limit or amplify the provisions hereof. F. Each provision performable by LESSEE shall be deemed both a covenant and a condition. This Lease Agreement contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Lease Agreement maybe modified in writing only, signed by the parties in interest at the time of modification. G. Subject to the provisions hereof restricting assignment or subletting by LESSEE and regarding the VILLAGE's liability, this Lease Agreement shall bind the parties, their personal representatives, successors and assigns. The Lease Agreement shall be governed by the laws of the State of Florida with venue in Palm Beach County, Florida. H. This Lease Agreement shall not be construed more strongly against either party regardless of who was more responsible for its preparation. 25. SUBORDINATION. The rights of LESSEE under this Lease Agreement shall be subject and subordinate to the lien of any bona fide encumbrance or other like instrument whereby the VILLAGE may place the Premises or this Lease Agreement as security for the payment of money or other obligation. [Remainder of page intentionally blank -signatures on the next page] 12 IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the date first above written. Witnesses: ~~ ~' Print Nam LESSEE: Witnesses: VILLAGE: VILLAGE OF NORTH PALM BEACH sy: (VI ATTEST: VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By:~ VILLAGE ATTORNEY TENNIS AND MORE, LLC, a Florida limited liability company By: Print N e• ~J Title: 13 EXHIBIT "A" List of Village Equipment and Personal Property 1 Front Counter 1 Back Counter 1 6' Wall Display 1 6' Wall Unit Display/Base Cabinet 2 Two-Way Display 1 Small Garment Table with Pullout Trays 1 Movable Cube 1 Racquet Display 8 Waterfall Arms 6 Straight-Out Arms 4 12" x 14" Shelves 4 42" x 14" Shelves 6 Racquet Display Arms 1 42" Rod & Corbel Set 14