Loading...
2002-048 NPBCC Restaurant Lease Agreement with J.E.D.L. RESOLUTION 48-2002 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND VILLAGE CLERK TO EN"1'I:R INTO A LEASE AGREEMENT TO CONDUCT FOOD AND BEVERAGE OP}:RA7'IONS AT THE NORTH PALM BEACH COUNTRY CLUB WITH J.E.D.L., INC., A FLORIDA CORPORATION, ATTACHED AS EXHIBIT A; AND, PROVIDING FOR AN EFFF.C77VE DATE. BI: IT KESOLVED BY THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA: Section 1. The Village Council of the Village of North Palm Beach, Florida, does hereby approve the Lease Agreement to conduct food and beverage operations at the North Palm Beach Country Club with J.E.D.L., Inc., a Florida Corporation, attached as Exhibit A. Section 2. The Village Council does hereby authorize and direct the Mayor and Village Clerk to execute the Lease Agreement with J.E.D.L. Inc. for and on behalf of the Village of North Palm Beach. Section 3. This resolution shall take effect immediately upon its adoption. PASSI;ll AND ADOPTED THIS 12th DAY OF SEPTEMBER, 2002. (Village Seal) MA r~ LJ A r r~ • LEASE AGREEMENT TO CONDUCT FOOD AND BEVERAGE OPERATIONSAT THE NORTH PALM BEACH COUNTRY CL UB TIIIS AGREEMENT made this 12th day of SEPTEMBER , 2002, by and between the VILLAGE OF NORTH PALM BEACH, a Florida municipal corporation, hereinafter called "VILLAGE", and J.E.D.L., INC., a Florida corporation, hereinafter called "LESSEE". WITNESSETH: WHEREAS, the VILLAGE is the owner of certain improvements being a part of the North Palm Beach Country Club, which improvements are hereinafter described; and WHEREAS, the LESSEE desires to lease from the VILLAGE said improvements to supply food, beverage and general dining and eating services to the VILLAGE residents, as hereinafter specified the members of the North Palm Beach Country Club and the general public; NOW, THEREFORE, in consideration ofthe premises and ofthe mutual benefits, promises and agreements herein contained, it is agreed as follows: 1. DEMISE AND DESCRIPTION OF PREMISES. The VILLAGE hereby grants LESSEE, and LESSEE hereby accepts from VILLAGE, an exclusive Lease to use and operate the following described premises, hereinafter referred to as "demised premises" to consist of the foyer, dining room, Lounge, Snack Bar, office space, storage areas and the kitchen in the clubhouse building at the North Palm Beach Country Club and covered pool deck area together with non-exclusive right to the use of the restrooms in said building • whenever the facilities are open. LESSEE shall keep rest rooms in demised area in a clean, sanitary condition and in good repair. • 2. TERM. The term of this Agreement shall be for three (3) years commencing on the 1st day of October, 2002, and shall end on September 30, 2005. 3. LESSEE OBLIGATIONS. A. At a minimum, LESSEE shall provide dinners on Friday and Saturday nights between the hours of 5:00 p.m. and 8.:00 p.m. LESSEE will be allowed to provide the Friday and Saturday dinners in the lounge area in the event the main dining room is used for catered events. B. The Lounge shall be open seven days a week from ] 0 a.m. and close no earlier than 7:00 p.m. or 8:00 p.m. during daylight savings time. At a minimum lunch will be served every day in the Lounge from 11:00 a.m. to 2:30 p.m. From June 1 through September 30, LESSEE shall have the option to close on Mondays. C. LESSEE may negotiate contracts with groups desiring useofthefacilitiesonaregular or recurring basis. D. Notwithstanding anything contained herein to the contrary, LESSEE shall close the main restaurant dining room on all election days. As compensation therefore, VILLAGE shall pay to LESSEE the sum of $500.00 for each election day that LESSEE closes. E. If the golf course superintendent closes the golf course on Mondays through Fridays for the balance of the day and LESSEE does not have scheduled events during that day, LESSEE shall have the option to close food and beverage operations for the balance of the day; provided, however, LESSEE agrees that notwithstanding anything herein contained to the contrary that the lounge shall remain open on Fridays, Saturdays, Sundays and holidays irrespective of course • closings; provided, however, LESSEE shall have the right to close on Christmas Eve after 4:00 pm. and Christmas day. The lounge may be closed by LESSEE when there is a declaration of stated -2- • emergency. F. LESSEE shall furnish food and beverages for the VILLAGE'S 4th of July events on Country Club grounds. G. During the term of lease or extension thereof, LESSEE shall conduct on averaee one (1) special event per calendar month at the Country Club. H. Upon expirationofthetermofleaseoroptionterm,whicheverisapplicable,LESSEE shall pay to VILLAGE seventy-five (75%) percent of the then replacement cost for broken, unserviceable or missing logo-embossed dinner plates, which include the large dinner plates, salad plates and bread plates. LESSEE shall report to the VILLAGE Manager or his designee. J. LESSEE shall provide a beverage cart at LESSEE' S sole cost and expense at al I times the golf course is open for play. 4. PERMITTED USE. A. LESSEE shall use the demised premises to provide food and beverage sales and services, including alcoholic beverages, sales and service and catering sales and services and to supply food, beverage and general dining and eating services to the VILLAGE residents, the members of the North Palm Beach Country Club, and the general public. LESSEE'S permitted use shall include the operation of the beverage and food carts on the golf course. LESSEE shall have the right to utilize either the main dining room or the covered pool deck area for catered functions during the hours LESSEE is required to stay open for lunch; provided, however, either the dining room or the lounge shall be open at all times during the required luncheon hours in order to serve lunch to the • VILLAGE residents, the members of the North Palm Beach Country Club and the general public. B. LESSEE shall provide silverware, crystal, glassware, coffee cups, saucers, flatware and -3- • dishes at his expense and may remove same upon termination of the lease. LESSEE shall also have use of all flatware and dishes owned by the VILLAGE and at the Country Club and LESSEE shall not be liable for loss or damage of such items; LESSEE shall be responsible for loss, damage, or breakage of logo items. C. LESSEE shall have the right to operate vending machines on subject leased premises at locations agreed to between the parties. LESSEE shall be responsible, at its expense, to maintain the machines in good order and repair and to see that they are stocked sufficiently at all times. LESSEE shall be entitled to retain any profits therefrom. D. LESSEE shall not, without the prior written approval of the VILLAGE Council, (a) make any changes to or paint the demised premises; (b) install or remove any exterior lighting, decorations or paintings. VILLAGE Manager or his designee must give approval for the erection, installation and utilization of any signs, decorations or advertising media, which approval shall not be unreasonably withheld. E. LESSEE shall have the right to prepare, serve and sell food and beverages on the golf course at such time and places as agreed between the LESSEE and the VILLAGE Manager. F. So long as LESSEE is not in default, LESSEE can quietly enjoy undisturbed possession of the premises. 5. SCHEDULE OF EVENTS. Lessee agrees to hold a meeting once per month during the term of the Lease with the Country Club Director and such other Country Club staff and Lessees requested by the • Director. The meeting shall be held to discuss schedule of events and to coordinate events and functions between the various departments of the Country Club and for such other purposes set forth by the Country Club Director. -4- • LESSEE shall provide the Village in writing, in advance, a list of bookings by LESSEE of parties, banquets, receptions, dinners, special or other events. If Village desires a special event on the demised premises, LESSEE shall book such event so long as it does not conflict with previously scheduled events and the appropriate Village facilities are otherwise available for the event. 6. LICENSES AND TAXES.• A. 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. B. LESSEE agrees to obtain and keep, at his own expense, an alcoholic beverage license in accordance with the laws of the State of Florida which will allow LESSEE to fully perform the terms and provisions of this Agreement during the term of this Lease. 7. CREDIT SALES. A. The VILLAGE shall charge LESSEE a one percent (1%) fee for administration of all amounts it collects which are due and payable to the LESSEE. Said fee shall be in addition to any other considerations or compensations contained in this agreement, and shall be subtracted from the amounts remitted to LESSEE under this section. LESSEE shall extend credit to Country Club members, the VILLAGE shall attempt to collect same in its ordinary course of business and shall be obliged to remit to the LESSEE only what it collects from such members. B. The parties understand that the VILLAGE bills Country Club members on the last day • of each month after LESSEE has extended credit to the members. At the close of each month, LESSEE shall provide the VILLAGE with all credit information concerning that month, which the -5- • VILLAGE shall bill on the last day of the following month. The VILLAGE shall remit to LESSEE on the 10th of each month the monthly credit which it has collected from the members, less the sum of one thousand ($1,000.00) dollars which the VILLAGE shall advance the LESSEE the 25th day of the preceding month. 8. EQUIPMENT AND PROPERTY. A. The VILLAGE will provide LESSEE the equipment and utensils listed on Exhibit "A" attached hereto and made a part hereof, which equipment shall be maintained by LESSEE in a state of good repair. Upon the termination of the Lease, the LESSEE shall return to the V ILLAGE all equipment and personal property listed on Exhibit "A" in the same condition as received from the VILLAGE, less reasonable wear and tear. 9. LESSOR OBLIGATIONS. A. VILLAGE agrees to dedicate the inside full page to the VILLAGE Newsletter for promoting a country club calendar and announcing events and dinner schedules at the Country Club for public information purposes. B. LESSOR shall purchase and provide a point of sale (POS) computerized cash register "system" to include accompanying and compatible hardware and software. LESSEE agrees to lease said system from the VILLAGE for monthly installments of $ 554.90 for the service agreement and costs (interest rate) of the VILLAGE. The lease price payable to the VILLAGE may vary, as the loan that this VILLAGE took to purchase the computer system carries a variable interest rate. Upon the VILLAGE having completed payment on its point of sale (POS) computerized register "system," LESSEE shall discontinue lease payments but shall pay all costs of maintenance. If the parties agree • that the system becomes obsolete or unusable, the parties agree to negotiate the purchase and lease -6- • of a new system upon the terms set forth herein whereby LESSEE shall pay the V ILLAGE monthly installments for the service agreement and costs (interest rate). C. LESSEE shall have access to a golf cart when available for the sole purpose of LESSEE checking on his business operations. D. LESSEE shall be assigned up to ten (10) contiguous starting tee times at the golfcourse on Mondays after 12:00 noon. Reservations are required at least ten (10) days prior to the tee times requested by LESSEE and any unused tee times prior to the respective Monday shall be relinquished. The tee times must be assigned and utilized in conjunction with restaurant usage and are intended to be utilized to promote packages that include restaurant usage. 10. UTILITIF,S. The LESSEE shall pay to the VILLAGE his proportionate share of utilities which serve the Country Club building according to the following agreed schedule: Gas - 100% Electricity - 60% Satellite Dish - 100% Telephone - 100% Cable Television - 100% Water & Sewer - 30% Subsequent to execution of this Lease Agreement, the parties agree to establish the proportionate share that LESSEE shall pay for the alarm system. LESSEE, at its sole cost and expense, shall provide monthly pest extermination for the leased premises. The VILLAGE shall provide LESSEE with a monthly statement of such costs. The VILLAGE may offset said expenses from the credit sales amount owed to LESSEE. Any balance remaining shall be immediately paid by LESSEE to the VILLAGE. • 11. IIEALTH. FIRE AND SAFETY REGULATIONS. -7- All employees required by Florida law shall have current food handlers' permits. The • LESSEE shall keep all premises described herein clean, satisfactory and in sanitary condition according to conditions approved by the VILLAGE and state agencies. All refuse and waste materials created in the exercise of this Lease shall be removed by the LESSEE to designated collection points to be removed by the VILLAGE, but the LESSEE shall provide and pay for one of two "dumpsters" or similar receptacles, approved by the VILLAGE, for temporary storage of refuse and waste. All State and local fire, health and safety regulations shall be strictly complied with and at the sole cost of the LESSEE. 12. MAINTENANCE AND EQUIPMENT. LESSEE shall be responsible for repairs to all equipment on the demised premises. LESSEE agrees to pay fifty percent (50%) of all air conditioning and heating unit repairs incurred by the VILLAGE regarding the demised premises. LESSEE shall maintain and repair the furnishings in the demised premises as necessary and shall replace all fumishings which are no longer useful due to negligence or intentional act of LESSEE or LESSEE's employees, agents, guests, patrons or customers. LESSEE shall obtain the permission of the VILLAGE Manager or his designee and a VILLAGE work permit, if necessary, to install or attach to the premises any equipment or fixtures desired by the 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, the 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's ceasing to operate shall be the property of the VILLAGE, without • -8- • expense to the VILLAGE. LESSEE shall be responsible for repairs and maintenance of the bathroom facilities in the front of the demised premises and shall keep same in a sanitary condition on a daily basis. LESSEE shall be responsible for maintaining all plants and foliage located within the demised premises. LESSEE shall be responsible for repair and maintenance ofall glass windows, light fixtures, bulbs and doors in or on the demised premises and shall keep the demised premises in a clean condition on a daily basis. LESSEE shall be responsible for replacement as necessary of carpeting in the demised premises. If LESSEE fails to properly maintain or make needed repairs or replacements as set forth herein, V ILLAGE shall give thirty (30) days written notice to LESSEE to make the specified repairs, replacements or maintenance. If LESSEE disagrees that the repairs, replacements or maintenance needs to be made, LESSEE shall give written notice thereof and deliver same to the Village Manager at Village Hall within the said thirty (30) day notice. Upon VILLAGE receiving written notice by LESSEE objecting to the repairs, replacements or maintenance, VILLAGE shall review the matter. If upon reviewing the matter the VILLAGE makes the determination that the repairs, replacements or maintenance should be made, then VILLAGE shall notify LESSEE, who must make the repairs, replacements or maintenance within fifteen (15) days from the notification by VILLAGE or within the original thirty (30) days the VILLAGE originally notified LESSEE, whichever is later. If LESSEE fails to make the stated repairs, replacements or maintenance within the time frame specified herein, then LESSOR shall have the right to make the repairs, replacements or maintenance • and charge LESSEE the reasonable costs thereof. If the VILLAGE determination involves -9- replacement of carpeting and VILLAGE replaces the carpeting, LESSEE shall have the right to pay • the cost of carpeting, including installation, over a period of six (ti) equal monthly installments. 13. INSURANCE. A. The VILLAGE shall carry fire insurance with extended coverage on the premises and on all the personal property thereon which is owned by the VILLAGE, including the property installed or placed in the areas covered by this Lease for LESSEE's use. The LESSEE shall carry such fire insurance as the LESSEE deems advisable as to the property owned by the LESSEE. B. Commercial General Liability: The LESSEE shall maintain and, prior to commencement ofthis contract, provide the Village with evidence ofCommercial 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 $100,000 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 orNon-Renewal and include the Village as an Additional Insured. C. Liquor Liability. The LESSEE shall maintain and, prior to commencement of this contract, provide the Village with evidence of Liquor Liability Insurance with limits of not less than $500,000 each person/$1,000,000 each incident. 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. Liquor Liability may be included within the commercial general liability policy, but would need to be so specified on the Certificate of Insurance. • D. LESSEE shall carry plate glass insurance on the demised premises. -10- • E. LESSEE shall name the VILLAGE as an additional insured on all such policies and shall provide written proof of all insurance coverage within ten (10) days after signing the LEASE. F. Business Automobile Liability. The LESSEE shall maintain and, prior to commencement of this contract, provide the VILLAGE with evidence of Business Automobile Liability insurance to include: 1) coverage for any automobile -Symbol I for limits of not less than $1,000,000 combined single limit (bodily injury & property damage) per accident and 2) Personal Injury Protection (Florida no-fault) with full statutory limits. The policy shall also provide the VILLAGE with a Thirty (30) Day Written Notice of Cancellation orNon-Renewal and include the VILLAGE as an Additional Insured. A single limit policy can be substituted with $500,000 bodily injury/$1,000,000 bodily injury per accident, and $250,000 property damage per accident. G. Workers' Compensation and Employers Liability. The LESSEE shall maintain and, prior to commencement of this contract, provide the VILLAGE with evidence of Workers' Compensation insurance providing Florida statutory (F.S. 440) limits to cover all employees and include Employers Liability coverage with limits of not less than $500,000 for accidents or disease. The policy shall also provide the VILLAGE with a Thirty (30) Day Written Notice of Cancellation or Non-Renewal. H. 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, the LESSEE shall promptly obtain a new and satisfactory policy in replacement. If any policy is canceled and is not promptly replaced, this Lease shall automatically terminate when any insurance coverage expires. • 14. INDEMNITY. -11- • LESSEE agrees to indemnify and hold harmless LESSOR, at all times after date of this Agreement, against and in respect of all liabilities, claims, damages, deficiencies, actions, proceedings, demands, assessments, judgements, costs and expenses, including a reasonable attorney's fee at the trial and appellate level, incident to any of the foregoing by reason of LESSEE's conduct of business from and after date of this Agreement upon the demised premises. Such indemnification shall include damage to the property of the VILLAGE or injury to employees or agents of the VILLAGE arising out of the conduct, operation, acts or omissions of the LESSEE hereunder. 15. ASSIGNMENTS. LESSEE shall have the one time right of assignment of subject lease agreement to a Florida corporation for profit to be formed by LESSEE in which LESSEE and his immediate family own more than fifty one (51 %) percent of the stock of the corporation. If LESSEE makes a transfer of more than fifty (50%) percent of the common stock of the corporation to a third party or otherwise transfers control of the corporation, such action shall constitute an impermissible assignment ofthis lease. The parties acknowledge that the VILLAGE has negotiated for the services of the LESSEE, EDWARD P. D'AMBRA and he agrees to remain liable for full performance of the terms and provision ofthis agreement, including, but not limited to, the payment of rent in the event that the corporation is in default. 16. ANTI-DISCRIMINATION. The LESSEE shall not discriminate against any employee or applicant for employment to be employed in the performance of this Lease with respect to its hire, tenure, term, condition or • privileges or employment, or any matter directly or indirectly related to employment, because of his _12_ or her race, color, religion, national origin, ancestry, sex or age. The LESSEE shall not discriminate • against hiring the handicapped. 17. SCHEDULE OF RENT. LESSEE shall pay LESSOR rent during each fiscal year of the Village during the term of Lease on a monthly basis in the amount of $4,583.33 per month or the respective percentage hereinafter set forth, whichever is greater. (A) $4,583.33 per month or 7.5% of gross sales per month (plus Florida State Sales Tax thereon), whichever is greater, up to the amount of $50,000.00 rent during the fiscal year; provided, however, if 7.5% does not equal the sum of $4,583.33 during either the month of October or November of a fiscal year (or both), LESSEE shal I pay only 7.5% for such month or months, whichever is applicable, with the difference to be paid to LESSOR in full by the following February 15 of the fiscal year. When LESSEE has paid LESSOR total rent of $50,000.00 during a fiscal year, the percentage shall be reduced to 4%of gross sales. When LESSEE has paid LESSOR a total of $70,00.00 rent during a fiscal year, the percentage shall be reduced to 2% of gross sales for the balance of the fiscal year. The minimum rent of $4,583.33 per month shall be discontinued in any fiscal year when LESSOR has paid LESSEE rent totaling $55,000.00 and LESSEE during the balance of the fiscal year shall thereafter pay LESSOR rent in accordance with the applicable percentages set forth above. If the Golf Course is closed for major repairs or renovations, LESSEE shall not be required to pay during such closure the minimum rent of $4,583.33 per month but shall only pay the • applicable percentage of gross sales specified herein above. -13- Any reference to rent in this paragraph 17 is exclusive of Florida State Sales Tax and • LESSEE shall in addition pay all Florida State Sales Tax on the rent paid to LESSOR. LESSEE shall provide LESSOR with copies of Florida State Sales Tax reports and all other business records of LESSEE necessary for LESSOR `s determination of the amount of gross sales: 18. DEPOSIT. LESSEE has deposited with VILLAGE under a preceding lease the sum of Four Thousand Five Hundred ($4,500.00) Dollars cash as security for LESSEE's faithful performance of LESSEE's obligations and also deposited with the VILLAGE the sum of Five Thousand ($5,000.00) Dollars towards the estimated first and last months rent on the premises. The deposit for security and first and last months rent placed under the preceding lease is now a part of this lease, and upon default by LESSEE, the VILLAGE may use, apply or retain all or any portion of the deposit to cure such default, or to compensate the VILLAGE for any damage or loss suffered by the VILLAGE by reason of LESSEE'S default. If the deposit is in the form of cash, the VILLAGE shall place the security deposit of $4,500.00 in an interest-bearing account, and the interest shall belong to the LESSEE unless it is needed to cover the purposes of this paragraph. 19. OPTION TO RENEW. A. Provided LESSEE has fully performed all terms and provisions of this lease agreement during the initial term including, but not limited to, payment of all sums of rent, LESSEE shall have one (1) three (3) year option to renew this lease agreement upon the same terms and provisions provided the parties are able to agree on the amount of rent to be paid during the option term. • B. To exercise the option to renew, the LESSEE must notice LESSOR on or before April -14- 1, 2005. The notice shall be delivered in accordance with the provisions ofparagraph 23 ofthis lease • and shall be delivered to Village Hall, 501 U. S. Highway One, North Palm Beach, Florida 33408. 20. LIENS ON LESSEE'S PROPERTY. LESSEE shall pay all debts and obligations in the conduct of business on the demised premises and LESSEE shall not incur any indebtedness or lien which would impair LESSEE's ability to fully perform the terms and provisions ofthis Agreement. The LESSEE shall permit no improvements to the property to be made which might result in a mechanic's lien against said 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 demised premises aze operated by the VILLAGE or the North Palm Beach Country Club, and shall inform all third parties that LESSEE operates the demised premises. 21. 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 the LESSEE thereafter occurring; and a failure to act by the VILLAGE shall not constitute a waiver as to any subsequently arising right to act on default. 22. DEFAULT. I. The occurrence of any one or more of the following events shall constitute a material default and breach of the Lease by LESSEE: A. The vacating or abandonment of the Demised Premises by LESSEE. B. The failure by LESSEE to make payment of rent or any other payment required to be made by LESSEE hereunder, as and when due, where such failure shall continue for • -15- a period of three (3) days after written notice thereof from the VILLAGE to LESSEE. • C. The failure byLESSEEtoobserveorperformanyofthecovenants,conditions or provisions to be observed or performed by LESSEE, other than described in Paragraphs 22A and 22B above, 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 period and thereafter diligently pursues such cure to completion. D. If LESSEE or any guarantor 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 thirty (30) days of the filing thereof, or if LESSEE or any said guarantor becomes insolvent or is unable or admits in writing his inability to pay his debts as they become due, or makes an assignment for the benefit or creditors or petitions for or enters into an agreement within his creditors or a custodian is appointed or takes possession of LESSEE's or any said guazantor's property, whether or not a judicial proceeding is instituted in connection with such arrangements or in connection with the appointment of such custodian. E. The discovery by the VILLAGE that any financial statement given to the VILLAGE by LESSEE, any assignee or LESSEE, any subtenant of LESSEE, any successor in interest of LESSEE or any guarantor of LESSEE's obligations, and any of them is materially false. • -16- II. A. 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 the following: 1. Declare the entire rent for the balance of the Lease Term, or any thereof, due and payable forthwith, and bring an action for the recovery thereof. 2. Terminate LESSEE'S right to possession of the Demised 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 Demised Premises to the VILLAGE and all further liability under the Lease on the part of LESSEE and the VILLAGE shall terminate. 3. Maintain LESSEE'S right to possession, in which event the Lease shall continue in effect whether or not Lessee shall have abandoned the Demised Premises. In such event, the VILLAGE shall be entitled to relet the Demised Premises and to enforce all of the VILLAGE'S rights and remedies under the Lease, including the right to recover the rent as it becomes due. 4. Pursue any other remedy now or hereafter involving LESSEE under the Bankruptcy Code, 1 I U.S.C. Section 101 et seq., if the Lease is assumed by LESSEE'S tn~stee in bankruptcy (after he has cured all existing defaults, compensated the V ILLAGE for any loss resulting therefrom and provided adequate assurance of future performance), then the Lease 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 THE Lease, (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 the Lease; and ©) grants to the VILLAGE, to secure the performance of such party's • -17- obligations under the Lease, a security interest in such party's merchandise, inventory, personal • property, fixtures, furnishings and accounts receivable (and in the proceeds of all of the foregoing) with respect to his operations in the Demised Premises, and in connection therewith, such party shall execute such security agreements, financing statements and other documents (the forms of which are to be prepared by the VILLAGE) as are necessary to perfect such lien. B. 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 Demised Premises into condition acceptable to a new tenant or tenants; real estate commissions actually paid; that portion of the leasing commission paid by the VILLAGE applicable to the unexpired term of the Lessee, ifapplicable; and all reasonable expenses incurred by the VILLAGE, including attorneys' fees. C. If the Lease should be terminated, or the Lease Term should expire, the VILLAGE shall have the immediate right thereafter to reenter the Demised Premises and to remove all persons and 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 may be occasioned thereby. D. 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 chazges payable to LESSEE under the terms of the Lease shall be deemed rent for the purpose of the VILLAGE exercising its remedies. -18- E. No waiver of any covenant or condition or of the breach of any covenant or • condition ofthe lease 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 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 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 VILLAGE may at any time thereafter, if such default continues, terminate the lease on account of such default. F. LESSEE waives all claims for damages by reason of the VILLAGE'S exercising its right to re-enter the Demised 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. G. The VILLAGE shall not be in default unless the VILLAGE fails to perform obligations required of the VILLAGE within a reasonable time, but in no event later than ten (]0) days after written notice by LESSEE to the VILLAGE and to the holder of any first mortgage covering the Demised Premises whose name and address shall have theretofore been furnished to LESSEE in writing, specifying wherein the VILLAGE has failed to perform such obligations; • -19- provided, however, that ifthe nature ofthe VILLAGE'S obligations is such that more than ten (]0) • days aze 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. H. LESSEE hereby acknowledges that late payment byLESSEEtotheVILLAGE of rent and other sums due hereunder will cause the VILLAGE to incur costs not contemplated by the lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but aze not limited to, processing and accounting chazges, and late chazges which may be imposed on the VILLAGE by the terms of any mortgage covering the Demised Premises. 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 (]0) days after such amount shall be due, LESSEE shall pay to the VILLAGE a late charge equal to ten percent (10%) 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. 23. 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 required, at the address specified in the lease, or to such other address as either party shall have designated by written notice to the other. Notwithstanding the • -20- foregoing, the V ILLAGE may give notice to LESSEE by personal delivery to the Demised Premises. • 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. 24. SURRENDER. Upon the expiration or termination of the lease, LESSEE shall deliver and surrender to the VILLAGE the Demised Premises in the same condition as it was upon delivery of possession thereto, or may have been put by the VILLAGE, ordinary wear and tear excepted, and shall deliver all keys and combinations to locks, safes and vaults to the VILLAGE. Before surrendering the Demised Premises, LESSEE shall remove all his unattached personal property, including trade fixtures, alterations, additions and decorations, and shall repair any damage caused thereby. All floor coverings, window, wall and ceiling treatments shall not be removed from the Demised Premises and shall be the property of the VILLAGE. If LESSEE should fail to restore the Demised Premises as aforesaid or if LESSEE should fail to repair any damage caused by the removal of LESSEE'S property from the Demised Premises, the VILLAGE may restore the Demised Premises, and all such costs incurred thereby shall be an expense of LESSEE. LESSOR shall have the right to defray such costs by deducting same from LESSEE'S security deposit. LESSEE'S obligation to perform this provision shall survive the end of the Lease Term. If LESSEE should fail to remove his property upon the expiration of the lease, said property shall be deemed abandoned and shall become the property of the VILLAGE. 25. HOLDING OVER. If LESSEE should remain in possession of all or any part of the Demised Premises after the expiration of the lease term, with the consent of the VILLAGE, which the VILLAGE shall have the • -21- unconditional discretion to grant or deny, then LESSEE shall be deemed to hold the Demised • Premises from month to month subject to all of the terms and provisions thereof, except only as to the term of the lease; 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 Demised 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 lease term. 26. AD VALOREM TAXES. LESSEE shall be responsible for and pay all taxes imposed by governmental authorities including ad valorem taxes imposed pursuant to and by reason of the lease of restaurant facilities to LESSEE. 27. MISCELLANEOUS. A. The parties hereto specifically intend that LESSEE'S operation and conduct of business upon the Demised 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 the lease 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. D. The captions used herein are for convenience only and do not limit or amplify • _22_ the provisions hereof. • E. Each provision performable by LESSEE shal I be deemed both a covenant and a condition. The lease 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. The lease may be modified in writing only, signed by the parties in interest at the time of modification. F. Subject to the provisions hereof restricting assignment or subletting by LESSEE and regarding the VILLAGE'S liability, this lease shall bind the parties, their personal representatives, successors and assigns. The lease shall be governed by the laws of the State of Florida. G. LESSEE, in conjunction with the Village, shall establish and enforce a dress policy. 28. DEFINITION. The term "Village Council" as used herein shall included designees of the Village Council. WITNESS the following signatures and seals the date and year first above written. VILLAGE OF NORTH PALM BEACH -23- (Village Seal) • • WITNESS: ~a ~~ ~~,~.Q~: village~d in ing•726-final . ., INC. (SEAL) _Zq_ r~ U EXHIBIT "A" BACK KITCHEN 2-CHAR GRILLS 1-FLAT TOP CRILL W1TH OVEN 1-4 BURNER WITH OVEN 2-SINGLE FRYOLATORS 1-CONVECTION OVEN 1-PIZZA OVEN 1-FLAT TOP GRILL