2009-72 Amendment to Lease Agreement with Peas & Carrots RESOLUTION 2009-72
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA APPROVING AN AMENDMENT TO
THE LEASE AGREEMENT WITH PEAS AND CARROTS CATERING, INC.
(D/B/A CONTINENTAL CATERING) FOR FOOD AND BEVERAGE
OPERATIONS AT THE NORTH PALM BEACH COUNTRY CLUB AND
AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE
SAME; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, on or about August 23, 2007, the Village and Peas and Carrots Catering, Inc. ("Peas
and Carrots") entered into a Lease Agreement with an initial term of five years whereby Peas and
Carrots would conduct food and beverage operations at the North Palm Beach Country Club; and
WHEREAS, due to the current economic climate and the losses suffered by its operations at the
Country Club, Peas and Carrots requested that the Village provide financial relief through the
modification of certain monetary requirements and obligations of the Lease Agreement; and
WHEREAS, the financial relief that the Village was able to provide was not sufficient to allow
Peas and Carrots to continue to operate its Country Club food and beverage concession pursuant
to the terms and conditions of the Lease Agreement; and
WHEREAS, Peas and Carrots is in material default and breach of the Lease Agreement due to its
failure to pay rent and its proportionate share of utilities for the months of October and
November, 2009; and
WHEREAS, in exchange for Peas and Carrots' willingness to continue food and beverage
operations at the Country Club while the Village secures a replacement vendor, the Village is
willing to forebear availing itself of the contractual and legal remedies arising out of the material
breach of the Lease Agreement, provided that Peas and Carrots abides by the terms, conditions
and representations set forth in an Amendment to the Agreement; and
WHEREAS, the Amendment to the Lease Agreement provides for a transition period that will
allow Peas and Carrots to continue to conduct food and beverage operations at the Country Club
on a temporary basis, while still reserving the Village's remedies for default should Peas and
Carrots fail to abide by the terms of the Amendment; and
WHEREAS, the Village Council determines that the execution of an Amendment to 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.
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ection 2. The Village Council of the Village of North Palm Beach, Florida, hereby
• approves an Amendment to the Lease Agreement with Peas and Carrots Catering, Inc. d/b/a
Continental Catering, a copy of which is attached hereto as Exhibit "A" and incorporated herein,
and authorizes the Mayor and Village Clerk to execute the document on behalf of the Village.
Section 3. All resolutions or parts of resolutions in conflict herewith are hereby repealed to
the extent of such conflict.
Section 4. This Resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED THIS 10th DAY OF
(Village Seal)
ATT~ST~.
~~~
VILLAGE CLERK
•
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e ' r;
AMENDMENT TO LEASE AGREEMENT
TO CONDUCT FOOD AND BEVERAGE OPERATIONS AT
THE NORTH PALM BEACH COUNTRY CLUB
THIS AMENDMENT TO LEASE AGREEMENT, is made and entered into this ~'~r(
day of December, 2009, by between the VILLAGE OF NORTH PALM BEACH, a Florida
municipal corporation, having its main office at 501 U.S. Highway One, North Palm Beach,
Florida 33408, hereinafter referred to as the "VILLAGE", and PEAS AND CARROTS
CATERING, INC. d/b/a CONTINENTAL CATERING, a Florida corporation, having its main
office at 4521 PGA Blvd., Suite 348, Palm Beach Gardens, FL 33418, hereinafter referred to as
"LESSEE".
WITNESSETH:
WHEREAS, on or about August 23, 2007, the VILLAGE and LESSEE entered into a
Lease Agreement with an initial term of five years ("Lease Agreement") whereby LESSEE would
conduct food and beverage operations at the North Palm Beach Country Club ("Country Club")
from October 1, 2007 through September 30, 2012; and
WHEREAS, LESSEE currently occupies the foyer, dining room, lounge, snack bar, patio,
storage areas, and the kitchen of the clubhouse building at the Country Club ("Demised
Premises"); and
WHEREAS; due to the current economic climate and the losses suffered by its operations
at the Country Club, LESSEE requested that the VILLAGE provide financial relief through the
modification of certain monetary requirements and obligations of the Lease Agreement; and
WHEREAS, the financial relief that the VILLAGE was willing and able to provide was not
sufficient to allow LESSEE to continue to operate its food and beverage operations pursuant to the
terms and conditions of the Lease Agreement; and
WHEREAS, by ahand-delivered letter dated November 20, 2009 ("Non-Payment Letter"),
the VILLAGE served LESSEE with formal written notice that it was in breach of Sections 10 and
17 of the Lease Agreement for failure to pay rent and its proportionate share of the utilities for
October and November, 2009; and
WHEREAS, due to LESSEE's failure to make full payment of all monies owed within
seven (7) days of receipt of the Non-Payment Letter, LESSEE is in material default and breach of
the Lease Agreement pursuant to Section 22(A)(2) and the Village is entitled to avail itself of any
and all remedies provided by law in accordance with Section 22(B) of the Lease Agreement,
including, but by no means limited to, declaring the entire rent for the Initial Term due and payable
and bringing an action for recovery of same and terminating LESSEE'S right of possession of the
Demised Premises; and
WHEREAS, in exchange for LESSEE'S willingness to continue food and beverage
operations at the Country Club while the VILLAGE secures a replacement vendor, the VILLAGE
is willing to forebear availing itself of the contractual and Legal remedies arising out of LESSEE'S
material breach of the Lease Agreement, provided that LESSEE abides by the terms, conditions
and representations set forth in this Amendment; and
WHEREAS, the VILLAGE and LESSEE wish to amend the Lease Agreement to provide
for a transition period that will allow LESSEE to continue to conduct food and beverage operations
at the Country Club on a temporary basis.
NOW, THEREFORE, in consideration of the mutual benefits and promises set forth in the
Lease Agreement and in this Amendment and other good and valuable consideration, the receipt of
suff ciency of which is hereby acknowledged by both parties, LESSEE and the VILLAGE agree as
follows:
RECITALS.
The foregoing recitals are hereby ratified as true and incorporated herein.
2. FORFEITURE OF SECURITY DEPOSIT.
Immediately upon execution of this Amendment by both parties, LESSEE agrees to
disclaim any right or interest in and forfeit to the VILLAGE the security deposit currently held by
the VILLAGE pursuant to Section 18 of the Lease Agreement. The monies owed by LESSEE to
the VILLAGE in accordance with the terms of the Lease Agreement shall be offset by the amount
of the security deposit set forth in the Lease Agreement.
3. OPERATION BY LESSEE
A. LESSEE shall continue to operate at the Country Club in accordance with the terms
and conditions of the Lease Agreement until such time as this Amendment is terminated in
accordance with Section 6 below.
B. LESSEE shall not book or schedule any new special events after January 1, 2010
without prior written approval of the Village Manager; however, the Village Manager shall advise
whether approval is granted within three (3) business days of notice from the Lessee, and approval
shall not be unreasonably withheld. All deposits for special events collected by LESSEE after the
effective date of this Amendment shall be deposited in an escrow or trust account of a local
attorney of LESSEE'S choosing and shall not be distributed without prior written consent of the
Village, which notice of consent shall be given within three (3) business days prior to the
scheduled event and shall not be unreasonably withheld.
4. PAYMENT OF RENT
A. LESSEE and the VILLAGE agree that LESSEE shall continue to operate at the
Country Club in a rent deferral status commencing retroactive to October 1, 2009 ("Rent Deferral
Period").
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B. During the Rent Deferral Period, LESSEE shall pay to the VILLAGE, on a monthly
basis, a sum equal to fifty percent (50%) of the net profit derived by LESSEE from food and
beverage operations at the Country Club. The net profit shall be calculated by subtracting normal
operating expenses from the total revenue generated from the food and beverage operations. For
the purposes of this Amendment, normal operating expenses shall include all expenses customarily
incurred during the operation of the business, including, but not limited to, LESSEE'S
proportionate share of the utilities, LESSEE'S food and beverage costs, LESSEE's personnel costs,
professional fees and LESSEE'S debt service. Net operating expenses shall not include any other
personal payments or obligations to creditors and lenders.
C. The payment required by subsection B above shall be calculated on a monthly basis
and paid to the VILLAGE by the twentieth (20th) day of the following month and shall be
accompanied by financial statements detailing the total revenue and net operating expenses. The
financial statements shall be management compilation statements maintained in the ordinary
course of business and signed by the CFO or CPA for LESSEE and shall still be submitted even if
no payment is due. If the twentieth day of the month falls on a weekend, the payment, if any, and
the financial statements shall be due on the next business day. LESSEE shall submit the required
financial statements and pay to the VILLAGE the amounts, if any, due and owing for the months
of October and November, 2009 within fifteen (15) business days after the effective date of this
Amendment.
MARKETING OF THE FACILITIES
During the Rent Deferral Period, the VILLAGE retains the right to market the Country
Club facilities and to access and show the facilities to prospective vendors at all times, with at least
one half (1/2) days advance notice to Lessee. LESSEE agrees to cooperate in the VILLAGE'S
efforts to market the facilities and shall provide access for such purposes. While conducting such
activities on site, the VILLAGE shall use its best efforts not to disturb LESSEE's business
operations.
6. TERMINATION
A. Either the VILLAGE or LESSEE may terminate this Amendment and the
underlying Lease Agreement upon thirty (30) days' written notice to the other party, subject to the
Reservation of Remedies set forth in Section 7 below.
B. Notwithstanding the foregoing, termination by LESSEE shall be not effective until
February 1, 2010 to allow the VILLAGE sufficient time to secure a replacement vendor at the
Country Club.
7. RESERVATION AND WAIVER OF REMEDIES
A. The VILLAGE reserves the right to assert any all available remedies for LESSEE's
default and material breach of the Lease Agreement as set forth in the Agreement or as otherwise
provided by law, including, but not limited to, the assertion of a landlord's lien pursuant to Section
83.08, Florida Statutes, et seq.
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B. Notwithstanding the foregoing, if, at the time this Amendment is terminated by
LESSEE or the VILLAGE, and LESSEE has complied with each and every term and condition of
this Amendment, including those incorporated herein by reference, the VILLAGE shall waive all
of its remedies for default as set forth in the Lease Agreement or as otherwise provided by law, and
the VILLAGE shall release LESSEE from any and all liability, monetary or otherwise, arising out
of LESSEE'S material breach of the terms of the Lease Agreement.
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8. REMAINING PROVISIONS.
All remaining provisions of the Lease Agreement, to the extent not modified herein, shall
remain in full force and effect and be binding on the parties. In the event of an express conflict
between the Lease Agreement and this Amendment, the terms of this Amendment shall control.
9. EFFECTIVE DATE.
This Amendment shall be effective upon execution by both parties hereto.
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(VILLAGE SEAL) ~~~ '~
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ATTEST: ~ '
VILLAGE CLERK
IN WITNESS WHEREOF, the parties have executed this Amendment to Lease Agreement
as of the date first above written.
V
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Witnesses:
~~1~ ~Y ~~~'t`10~
Print Name:
Print Name:
APPROVED AS TO FORM AND LEGAL
SUFFICIENCY:
By: .~
VILLAGE ATTORNEY
PEAS AND CARROTS CATERING, INC.
d/b/a CONTINENTAL CATERING
By:
RANDY EPS~, IN, Owner/CEO
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