HomeMy WebLinkAbout2007-229 r .y
LEASE AND CONCESSION AGREEMENT
THIS LEASE AND CONCESSION AGREEMENT (" Lease" ) is entered into this
1st day of August, 2007 (" Effective Date" ) , by and between Indian River County, apolitical
subdivision of the State of Florida , 1800 27th Street , Vero Beach , FL 32960 (" County" ) and
Capcan , Inc. , a Florida corporation whose mailing address is 3414 Cherokee Drive , Vero
Beach , FL . 32960 ("Tenant" ) .
BACKGROUND RECITALS
A. The County issued a Request for Proposals in April , 2007 for food and beverage
concession services at the County Administration Building , and re-issued the
Request for Proposals with a response date of June 20 , 2007 ;
B . Pursuant to the Request for Proposals , the County's duly-constituted Selection
Committee received proposals and ranked the firms that responded to the Request
for Proposals based on the evaluative criteria set forth in the Request for Proposals;
C . The Tenant was the highest ranked respondent to the Request for Proposals and ,
on July 17 , 2007 , the County approved the Selection Committee recommendation to
contract with Tenant to provide the food and beverage concession services set forth
in the Request for Proposals and this Agreement; and
D . Tenant is willing and able to perform the food and beverage concession services at
the County Administration Building for County as set forth in this Agreement on the
terms and conditions set forth below .
NOW THEREFORE , in accordance with the mutual covenants hereinafter contained
and other good and valuable consideration , the receipt and adequacy of which are hereby
acknowledged , the parties hereto agree as follows :
ARTICLE 1
1 . 1 . TERM . This Lease shall have an initial term of five (5 ) years commencing upon the
Effective Date (" Initial Term" ) , subject to early termination as provided herein .
1 . 2 . RENEWAL TERM . Provided the County and Tenant agree to renew the Lease (as it
may have been modified from time to time ) on mutually beneficial terms ; and further
provided that the Tenant is not in default under any of the terms and conditions of this
Lease or any other written agreement between Tenant and the County , this Lease may be
renewed for a maximum of seven (7 ) successive terms of one ( 1 ) year (each , a " Renewal
Term" ) , for a maximum aggregate of twelve ( 12) years combined Initial Term and Renewal
Terms . Each Renewal Term is subject to all of the provisions set forth in this Lease .
Notwithstanding the foregoing , the County may extend or renew this Lease beyond the
twelve ( 12 ) years if deemed to be in the best interest of Indian River County . Renewal of
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the mutually agreeable Lease terms and conditions shall be completed one hundred and
twenty ( 120 ) days prior to the end of the Initial Term , and forty-five (45 ) days prior to the
end of each Renewal Term .
ARTICLE 2
2 . 1 . LEASED PREMISES DESCRIPTION . The County shall lease to Tenant an area that
is approximately 1 , 334 sq ft of space on the first floor of the new main County
Administration Building , 180127" Street , Vero Beach FL 32960 (" Leased Premises" ) as
shown on Exhibit "A" attached hereto and incorporated herein in its entirety by this
reference .
ARTICLE 3
3 . 1 . RENT. Subject to adjustment as set forth in this Lease , and commencing September
1 , 2007 , Tenant shall pay, without abatement , set-off or other deductions , minimum net rent
(" Rent" ) in the amount of Four Hundred and 001100 Dollars ($400 . 00 ) per month for each
month during the Initial Term . Such Rent shall be payable as set forth herein , without
billing , on or before the 1st (first) day of each month . The Rent due and payable under this
Lease is net to the County and Tenant shall bear all costs and expenses , except as
otherwise set forth in this Lease .
3 .2 . LATE RENT CHARGE . The Rent payable hereunder shall be considered delinquent if
it is not received by the County's Finance Department on or before the 10th (tenth ) day of
each month . Delinquent Rent payments shall include , as additional rent hereunder, a Fifty
Dollar ($50 . 00 ) service charge plus interest at the rate of eighteen percent ( 18% ) per
annum calculated from the day the Rent is due until received by the County' s Finance
Department,
3 . 3 . SALES TAX. In addition , the Tenant shall be liable for the prevailing State of Florida
Sales and Use Tax imposed on the Rent for the leasehold estate granted under this Lease
("Sales Tax" ) . The Sales Tax shall be paid by the Tenant to the County's Finance
Department with the Rent, and the County shall transmit the Sales Tax to the Florida
Department of Revenue .
3 .4 . PAYMENT OF RENT. The Tenant shall pay all Rent, Sales Tax , and other charges
under this Lease to the County' s Finance Department, 1801 27"' Street , Vero Beach , FL
32960 by check made payable to " Indian River County Board of County Commissioners' .
3 . 5 . RENTAL ADJUSTMENT. On October 15`, 2008 , and annually on each October 1st
thereafter, including all Renewal Terms , the Rent shall be adjusted in an amount that is the
greater of ( i )three percent (3% ) ; or ( ii ) the percentage change in the index known as the
" United States Bureau of Labor Statistics Consumer Price Index (CPI ) for All Urban
Consumers for the South , all items , 1982-84 equals 100" ("CPI ") I for the immediately
preceding twelve ( 12 ) month period of July to July. If the CPI ceases to be published , the
successor index shall be used . In no event shall the Rent be less than the Rent set for
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the previous year of this Lease . The County shall provide notice to Tenant of any
adjustment on or before August 15 of each year of this Lease .
3 . 6 . PAYMENT OF OBLIGATIONS . Tenant shall pay all federal , state and local taxes ,
fees, and other costs lawfully assessed against its operations under this Lease provided ,
however, that Tenant shall not be deemed to be in default of its obligations under this
Lease for failure to pay such taxes , fees or costs pending the outcome of any legal
proceedings instituted to determine the validity of same. Nothing contained in this Lease
shall be deemed to be a waiver of any tax exemption or immunity applicable to the Leased
Premises or the new County Administration complex.
3 . 7 . SECURITY DEPOSIT. The Tenant shall deposit with the County' s Finance
Department, a Cashier's Check or Certified Check payable to " Indian River County Board of
County Commissioners" in the amount of Twelve Hundred Dollars ($ 1200 . 00 ) to be held in
escrow by the County until September 30 , 2012 and thereupon returned to Tenant by
County.
ARTICLE 4
4 . 1 . CONCESSION SERVICES . Upon the terms and conditions set forth in this Lease ,
Tenant shall provide food and beverage concession services , together with other sundry
items , at the Leased Premises of the nature, quality, and prices as set forth initially on
Exhibit " B" attached hereto and incorporated herein in its entirety by this reference . The
County reserves the right to require changes , upon reasonable notice and despite the
County's previous approval , in the nature or price of the food and beverage , if in the sole
discretion of the County , if such a change is desirable in providing the best service to the
public. Further, Tenant has the right to modify the nature or price of the food and beverage
offerings to meet the requests and requirements of the public and market conditions ,
provided that all price changes are subject to review and input from the County
Administrator or his designee . Where Tenant has adjusted prices in any month , Tenant
shall provide written price adjustment and justification information with the next succeeding
Rent payment. In addition , Tenant shall furnish coin operated vending machines in both
new County Administration Buildings for cold beverages and miscellaneous snacks. These
machines will be located with the approval of the Director of General Services . The Tenant
represents that it has , or will secure at its own expense , all necessary fully qualified
personnel required to provide the food and beverage concession services under this Lease .
Such personnel shall not be employees of the County .
4 . 2 . EQUIPMENT . Tenant shall furnish all equipment, food , beverages , food service
products, coin operated vending machines , labor, and supervision necessary to maintain a
quality food service in an efficient operation . Tenant is responsible for all food preparation
equipment needed to operate the food services , including but not limited , to coolers ,
stoves , sinks , ice machines , etc . All equipment is to include any required safety or fire
prevention equipment necessary for proper operation . Outside ventilation is not provided in
the Leased Premises , and Tenant acknowledges and agrees that no cooking equipment
that requires ventilation such as fryers or grills will be permitted in the Leased Premises .
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Tenant further acknowledges and agrees that it is prohibited from possessing , dispensing ,
selling , using , or giving away, any tobacco products of any nature whatsoever from , in ,
around , or in connection with , the Leased Premises, it being the intent of Indian River
County that the new County Administration complex shall be a "Smoke-Free Campus" .
4 . 3 . CLEANING ; TRASH . Tenant shall meet standards of City of Vero Beach franchise
solid waste collection and disposal specifications , and Tenant is solely responsible for the
disposal of any solid waste not accepted by the City . Tenant shall provide appropriate
trash receptacles within the Leased Premises. Tenant shall be responsible , at its sole cost
and expense , for all interior cleaning of the Leased Premises to maintain the food service
operations under this Lease in a sanitary and first-class condition .
4 .4 . COMPLIANCE . Tenant shall have a current business tax receipt for each year of the
lease term and pay all taxes and assessments which shall be imposed or assessed by any
and all governmental authorities in connection with the business or operation conducted
under this Lease . Tenant shall meet all federal , state , county, and municipal laws ,
ordinances , policies , and rules applicable to the operation of the food and beverage
concession under this Lease including , without limitation , the Occupational Safety and
Health Administration (OSHA) , the Florida Department of Labor and Employment Security
and the Indian River County Public Health Department.
4 . 5 . HOURS OF OPERATION . Tenant shall be open for business at the Leased Premises
Monday through Friday , during the minimum initial operating hours of 7 : 00 a . m . till 3 : 00
p . m . daily, year round , and closed on Saturday, Sunday, and official County holidays . The
County reserves the right to require changes , upon reasonable notice and despite the
County's previous approval , in the hours or days of operation , if in the sole discretion of the
County, such a change is desirable in providing the best service to the public. Tenant
acknowledges and agrees that: (a ) the food service at the Leased Premises is not limited
to only County employees , and is open to the public; and (b) County employees are
allowed to consume food and beverages brought from the outside within the Leased
Premises with no obligation to make any purchase from Tenant.
4 . 6 . EMERGENCY . During any federally , State of Florida , or locally declared disaster or
other emergency (herein " Emergency" ) , the County reserves the right to have the full and
exclusive use of the Leased Premises for as long as reasonably necessary as the County ,
in its sole discretion , acting as the Indian River County Emergency Services District , shall
determine , for any and all appropriate governmental purposes in connection with such
Emergency . Tenant acknowledges that the County has paramount response and recovery
obligations before , during and in the immediate aftermath of an Emergency , and that
fulfilling the County's food and beverage needs shall be the top business priority of Tenant
during the Emergency . At the County' s request, Tenant shall cooperate with the County in
Emergency food and beverage planning . Further, Tenant shall be open for business
during the hours that the County requires in connection with any Emergency to provide food
and beverage service, even if the hours required are different from non -Emergency hours.
Further, County reserves the right to have Tenant provide daily food and beverage
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services to meet the needs of the County, in connection with such emergency, on such
terms and conditions as mutually agreed by County and Tenant .
4 . 7 . PUBLIC CONTACT . Tenant shall maintain good public relations with users of the
facility and cooperate with Indian River County officials in all matters pertaining to the
Leased Premises and the food service. Any and all personal property placed on the Leased
Premises by Tenant or others shall be at the risk of the Tenant or others and the County
shall not be liable for any damage or loss to such personal property for any cause
whatsoever. The County's Director of General Services or his designee may submit a
written report to the Tenant enumerating any problem areas encountered in connection with
operations under this Lease ; and Tenant will provide written documentation of action to be
taken to resolve any such problems .
4 . 8 . COUNTY OBLIGATIONS . County will furnish seating and tables within the Leased
Premises ; all electrical service, including HVAC ; water and sewer services ; pest and
vector control ; limited solid waste collection as set forth in this Lease ; and all structural
maintenance for the Leased Premises. The County may , but is not obligated to, furnish
seating and tables within the outdoor area immediately adjacent to the Leased Premises.
4 .9 . Tenant acknowledges and agrees that: (a ) it is entering into this Lease based on its
own independent investigation of the Leased Premises and has satisfied itself as to the
general and local conditions and the various conditions which might affect the operation of
Tenant's food and beverage concession business and sanitary maintenance of the Leased
Premises ; (b) its independent investigation included the speculative nature of food and
beverage concession services in general and at the Leased Premises in particular; and (c)
there is no guarantee of any nature whatsoever from the County with respect to the amount
of sales or revenues generated at or from the Leased Premises .
4 . 10 . ADVERTISING . Concurrently with the execution of this Lease, or prior to September
11 2007 , the County may install signage at the sole expense of the Tenant at such places
as are determined by the County . Subject to the written approval of the Director of
General Services , Tenant may place non-permanent advertising materials at the Leased
Premises at Tenant's expense . In addition , Tenant shall post the prices of the items sold
from the Leased Premises in a conspicuous place in or on the Leased Premises .
4 . 11 . INGRESS AND EGRESS . Subject to any rules or regulations governing the use of
the new County Administration Building Complex, Tenant and Tenant's agents , servants ,
patrons, invitees , and suppliers of service and furnishers of materials shall have the right of
ingress and egress to and from the Leased Premises .
4 . 12 . INSPECTION BY THE COUNTY. The County and its agents , including without
limitation the Indian River County Public Health Department , with or without notice , may
make periodic inspections of the Leased Premises to determine whether the Tenant is
operating in compliance with the terms and conditions of this Lease . The Tenant shall be
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required to make any and all changes required by the County and its agents as a result of
such inspections .
4 . 13 . IMPROVEMENTS ; FUTURE IMPROVEMENTS . Tenant agrees that all
improvements and any changes made to the Leased Premises shall be at its sole expense
and must have the prior written approval of the Director of General Services or designee .
Further, the forgoing approval shall not be deemed to be the approval of the County
Building Department or any other regulatory arm of the County . Tenant shall not alter or
modify any portion of the Leased Premises or the improvements constructed therein
without first obtaining written approval from the County. Tenant shall submit for approval
by the County detailed plans and specifications for any and all future proposed leasehold
improvements at least forty-five (45) days prior to the anticipated date of installation of
such improvements . Any such improvements shall be made , installed , and/or constructed
at the sole cost of Tenant and Tenant shall coordinate with County during any
construction , as appropriate . Tenant agrees that all equipment, furnishings and
improvements provided shall meet the requirements of all applicable codes , including ,
without limitation , building , fire , and other related codes . All improvements made by
Tenant to the Leased Premises which are so attached to the Leased Premises that they
cannot be removed without material injury to the Leased Premises , shall become the
property of County upon installation or completion of the improvement. Following the
installation of any approved additional equipment, furnishings , and improvements , Tenant
shall provide to the County a statement setting forth the cost of such equipment and
improvements as completed .
4 . 14 . QUIET ENJOYMENT . If and so long as Tenant performs all of its obligations under
this Lease, County covenants that Tenant shall and may quietly hold and enjoy the Leased
Premises , subject to any applicable laws , ordinances , and governmental regulations , and to
any governmental actions .
ARTICLE 5
5 . 1 . INDEPENDENT CONTRACTOR RELATIONSHIP . The Tenant is , and shall be , in
the performance of all food and beverage concession services and activities under this
Lease an independent contractor, and not an employee , agent or servant of the County . All
persons engaged in any of the food and beverage concession services performed pursuant
to this Lease shall at all times , and in all places , be subject to the Tenant's sole direction ,
supervision and control . The Tenant shall exercise control over the means and manner in
which it and its employees perform the food and beverage concession services , and in all
respects the Tenant's relationship and the relationship of its employees to the County shall
be that of an Independent contractor and not as employees or agents of the County .
5 . 2 . NO PLEDGE OF CREDIT . The Tenant shall not pledge the County's credit or make
it a guarantor of payment or surety for any contract, debt, obligation , judgment , lien , or any
form of indebtedness .
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5 . 3 . SUCCESSORS . This Lease shall be binding on the County and its administrators
and on the Tenant and its permitted successors in interest .
5 . 4 . PROHIBITION ON ASSIGNMENT . Tenant shall not, directly or indirectly , assign ,
sublease , or transfer the Lease , or any interest therein , or any portion of the Leased
Premises (the foregoing herein collectively "Transfer" ) , without the express prior written
consent of the County. County shall not unreasonably withhold its consent to any Transfer.
Any such attempted Transfer without County approval shall be null and void and may, at
the option of the County , be deemed an event of default under this Lease . Tenant
acknowledges and agrees that the County has the right, in granting or withholding consent
to any Transfer , to consider, among other things , the financial responsibility and business
reputation of the proposed assignee , sublessee , or transferee (the foregoing herein
collectively "Transferee" ) ; and any other items that Indian River County Board of County
Commissioners , in its sole discretion , deems appropriate . If Tenant seeks County's
consent for a Transfer, Tenant shall submit to County a written request therefor,
accompanied by the following documentation : ( i ) the name , address , and telephone
number of the proposed Transferee ; (ii ) an explanation of the food and beverage
concession services that the proposed Transferee will or is likely to make of the Leased
Premises ; and ( iii ) a financial statement or other reasonably detailed financial information
concerning the proposed Transferee . Tenant acknowledges and agrees that: (a ) the
County Administrator or his designee , or the Indian River County Board of County
Commissioners , has the right to request any additional information deemed necessary to
make the decision relating to consent to the Transfer; and ( b) any such request for a
Transfer is expressly subject to the approval of the Transfer by the Board of County
Commissioners at a formal meeting thereof, and such Transfer shall become effective only
when signed by the Transferee and approved by the Board , which consent shall not be
unreasonably withheld . The foregoing covenant shall be binding on the permitted
successors in interest of Tenant. The foregoing covenant shall be binding on the permitted
Transferees of Tenant. The prohibition on Transfers shall not prohibit a change in the form
in which Tenant conducts business . Tenant will be released from further liability under this
Lease in the event of an approved Transfer; provided that the County's consent to any
Transfer, or County's acceptance of Rent from any Transferee , will not otherwise relieve
Tenant from any pre-existing obligation to County under this Lease .
5 . 5 . PROHIBITION ON ENCUMBRANCES . Tenant shall not mortgage, pledge , or
encumber this Lease , in whole or in part , or the leasehold estate granted under this Lease ,
to any other person , firm or entity. Any attempted mortgage , pledge , or encumbrance of
this Lease , or the leasehold estate granted under this Lease , shall be void and may , at the
sole option of the County, be deemed an event of default under this Lease . This covenant
shall be binding on the permitted successors in interest of Tenant .
5 . 6 . NON-DISCRIMINATION . Tenant for itself, and its permitted successors in interest, as
a part of the consideration for this Lease , does hereby covenant and agree that no person
shall be excluded from participation in , be denied the benefits of, or be otherwise subjected
to discrimination in , the use of the food and beverage concession services offered in or at
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the Leased Premises on the basis of age , sex, disability , race , color, national origin , creed ,
religion or ancestry .
5 . 7 . INDEMNIFICATION . The Tenant shall indemnify and hold harmless the County , its
officers , agents , servants , and employees from and against any and all losses , liabilities,
suits , claims or causes of action (including reasonable attorneys' fees and court costs)
brought on account of any injuries or damages received or sustained by any person ,
persons , or property which may arise , directly or indirectly, from any misconduct or
negligent act or omission of the Tenant, its agents , servants or employees in the operation
of the food and beverage concession in the Leased Premises , or otherwise in connection
with this Lease .
5 . 8 . TIME OF THE ESSENCE . Except for " unavoidable delays" , it is hereby understood
and agreed between County and Tenant that time is of the essence throughout this Lease .
The term " unavoidable delay" shall mean delays due to strikes, acts of God , the provisions
of any federal , state , County or municipal law or regulation , or the decision orjudgment of
any court of competent jurisdiction , inability to obtain labor or materials , governmental
restrictions or delays , civil commotion , public health emergencies , labor disputes , fire ,
unavoidable casualty or similar causes beyond the control of Tenant or the County, as the
case may be .
5 . 9 . SURRENDER. At the expiration or termination of the Initial term or any Renewal Term
of this Lease , or earlier termination hereof, Tenant shall peaceably and quietly leave ,
surrender, and deliver the Leased Premises to County, broom clean , and in thorough
repair, good order, and safe condition , reasonable wear and tear excepted , as it was at the
beginning of the Lease; and Tenant shall , at Tenant's expense , remove all of Tenant's
personal property and those improvements made by Tenant which have not become the
property of County , and repair all injury done by or in connection with the installation or
removal of the personal property and improvements . All property of Tenant remaining on
the Leased Premises after the applicable last day of this Lease shall be conclusively
deemed abandoned and may be removed by County, and Tenant shall reimburse County
for the cost of such removal . County may have any such property stored at Tenant's risk
and expense . It is the intention of the parties to this Lease that all furnishings and
equipment as defined under the laws of the State of Florida purchased or leased by Tenant ,
shall be and will always remain the personal property of the Tenant.
5 . 10 . RECORDS .Tenant shall keep records of food services performed and the costs
therefor under this Lease , and the County shall have the right to review those records upon
three (3) days prior written notice . These records shall become the property of the County
upon termination of the Lease .
ARTICLE 6
6 . 1 NO LIABILITY FOR DAMAGE OR INJURY. The County shall not be liable for any
damage or injury which may be sustained by any party or persons in , at , on , or about the
Leased Premises .
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6 .2 DAMAGE . Tenant shall repair all damage to the Leased Premises caused by the
Tenant, its employees , agents , servants , or independent contractors in connection with the
operation of the Leased Premises .
6 . 3 OTHER DAMAGE TO OR DESTRUCTION OF LEASED PREMISES . If the Leased
Premises is partially damaged , but not rendered unusable for the purposes of this Lease ,
the County or its agents , at its sole option may, but shall not be required to , repair the
Leased Premises with due diligence, using insurance proceeds , and a pro rata
adjustment of the rent payable hereunder for the period of business interruption , if any,
shall be made . In the event the Leased Premises is totally destroyed or rendered unusable
for the Tenant's purposes , the County or its agents, at its sole option may, but shall not be
required to, begin to reconstruct or repair the Leased Premises , using insurance proceeds,
within a reasonable amount of time and shall continue the work diligently and the fee
payable hereunder shall be abated until such time as the Tenant is able to resume
operations . At the option of the County or Tenant , this Lease may be terminated in the
event of partial or total destruction of the Leased Premises or the term of this Lease may be
extended by the number of days that the Tenant is unable to operate the food and
beverage concession services due to damage to the Leased Premises .
6 . 4 . INSURANCE . The Initial Term of this Lease shall not commence until all insurance
required to be provided by Tenant under this Lease has been obtained by the Tenant and
proof of insurance , in the form of original certificates of insurance , has been delivered to
and approved by the County Purchasing Office . The Certificates shall clearly indicate that
the Tenant has obtained insurance of the type , amount, and classification as required in
strict compliance with this Article and that no material change or cancellation of the
insurance shall be effective without providing at least thirty (30) days prior written notice to
the County. All insurance policies shall be issued by companies authorized to do business
under the laws of the State of Florida . The policies of insurance shall be primary and
written on forms acceptable to County and placed with insurance carriers approved and
licensed by the Department of Insurance for the State of Florida and meet a minimum A. M .
Best & Company rating of no less than A: VI I . Compliance with the foregoing requirements
shall not relieve the Tenant of its liability obligations under this Lease . From time to time
during the Initial Term and all Renewal Terms of this Lease , the County reserves the right
to require reasonable amendments to the insurance requirements as to amounts or types
of coverage by providing reasonable prior written notice to Tenant .
6 . 5 . LOSS DEDUCTIBLE PAYMENT . The County shall be exempt from , and in no way
liable for, any sums of money which may represent a deductible under any insurance
policy. The payment of any such deductible shall be the sole responsibility of the Tenant.
6 . 6 . WORKERS' COMPENSATION INSURANCE . The Tenant shall take out and
maintain , during the Initial Term and all Renewal Terms of this Lease , applicable workers'
compensation insurance for all of its employees employed in connection with the business
operated under this Lease . Such insurance shall fully comply with the Florida Workers'
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Compensation Law Chapter 440 , Florida Statutes . The workers' compensation insurance
policy required by this Lease shall also include Employer's Liability .
6 . 7 . PUBLIC LIABILITY INSURANCE . Tenant shall procure and shall maintain broad
form commercial general liability insurance ( including contractual coverage) and
commercial automobile liability insurance in amounts not less than set forth herein . The
County shall be an additional named insured on these policies with respect to all claims
arising out of the food and beverage concession services : (i ) Commercial General Liability
of $500 , 000 combined single limit (other than automobile) for bodily injury and property
damage to include (A) Premises/Operations ; ( B ) Independent Contractors ; (C )
Products/Completed Operations ; ( D ) Personal Injury; and ( E) Contractual Liability ; ( ii )
Business Auto Liability, $500 , 000 combined single limit for bodily injury and property
damage ; (A) Owned/Leased Automobiles ; (B) Non-Owned Automobiles ; and (C ) Hired
Automobiles
6 . 8 . ALL RISK PROPERTY INSURANCE . The County may , but shall not be obligated
to , self-insure the Leased Premises for "all-risks ," including flood damage . Any insurance
obtained by the County pursuant to this Lease shall specifically exclude the contents of the
Leased Premises .
ARTICLE 7
7 . 13ERMINATION BY COUNTY FOR DEFAULT. The County shall have the right to
terminate this Lease upon the occurrence of any of the following (each an " Event of
Default"): (a) Institution of proceedings in voluntary bankruptcy by the Tenant; ( b) Institution
of proceedings in involuntary bankruptcy against the Tenant if such proceedings continue
for a period of ninety (90 ) days and are not dismissed ; (c) Assignment by Tenant for the
benefit of creditors; (d ) Abandonment by Tenant of the Leased Premises or discontinuance
of food and beverage concession operations at the Leased Premises ; (e) Failure of Tenant
to pass a Indian River County Public Health Department health or sanitation inspection ; (f)
Default of, non-performance , or other non-compliance with , any covenant of any nature
whatsoever under this Lease ; or (g ) Failure to pay when due any Rent or additional rent.
7 . 2 Upon the occurrence of an Event of Default, the County shall send a written notice to
Tenant , in the manner set forth in this Lease , setting forth the Event of Default in specific
detail and the date this Lease shall terminate in the event Tenant does not cure the default.
7 . 3 Within thirty (30 ) days following receipt of a default notice for defaults other than
7 . 1 (e ) Failure of Tenant to pass a Indian River County Public Health Department health or
sanitation inspection , Tenant shall have cured the default to the reasonable satisfaction of
the County . With respect to a default under 7 . 1 (e) Failure of Tenant to pass a Indian River
County Public Health Department health or sanitation inspection , the County shall require
Tenant to commence to cure such default immediately , and to have such default cured
within three (3) calendar days from receipt of notice by Tenant of the failed health or
sanitation inspection . Further, the County reserves the right, in its sole discretion , to
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terminate this Lease at any time , upon five (5) days written notice to Tenant, in the event
Tenant receives two (2 ) notices of failed health or sanitation inspections within any six (6 )
month period , whether or not Tenant has cured the condition that gave rise to the failed
health or sanitation inspections .
7 . 4 In the event Tenant fails to cure the Event of Default within thirty (30 ) days , or within
three (3 ) calendar days from receipt of notice by Tenant of a failed health or sanitation
inspection , as applicable , this Lease shall be deemed to be terminated with no further
action by the County. In no event , however, shall such termination relieve Tenant of its
obligation to pay any and all remaining rent due and owing to the County for the period up
to and including the date of termination or to provide any and all remaining reports to the
County for such period .
7 . 5 . COUNTY RIGHTS . Nothing contained in this Lease shall restrict the rights of the
County to terminate this Lease upon written notice to Tenant as set forth in this Lease . The
County has the right to terminate this Lease at any time , upon sixty (60) days advance
written notice to Tenant if the food and beverage service is deemed by the County to be
unsatisfactory and Tenant has not cured the deficiencies .
7 . 6 . TERMINATION BY TENANT. Tenant shall have the right, upon providing thirty (30 )
days prior written notice to the County, to terminate this Lease at any time after the
occurrence of one or more of the following events : (a) Issuance by any court of competent
jurisdiction of any injunction substantially restricting the use of the Leased Premises for
commercial purposes , and such injunction remaining in force for a period of more than
sixty (60 ) calendar days ; or ( b ) A breach by the County of any of the terms , covenants or
conditions contained in this Lease and the failure of the County to remedy such breach for
a period of thirty (30 ) calendar days after receipt of written notice thereof. Tenant has the
right, with prior written notice of sixty (60 ) days to County, to terminate this Lease if, in the
sole opinion of Tenant , profitable sales cannot be reached by Tenant under this Lease .
The notice to County shall specify the date by which Tenant intends to stop food and
beverage operation under this Lease.
7 . 7 . EXCUSE . Tenant shall not be considered in default for a failure to perform if such
failure arises out of unavoidable delays as defined in this Lease through no fault or
negligence of the Tenant .
7 . 8 . RIGHT OF POSSESSION ON DEFAULT. The County may retake possession of the
Leased Premises without judicial action upon surrender or abandonment of the Leased
Premises by the Tenant. Should Tenant fail to cure a default under the Lease Agreement
or in the alternative to surrender or abandon possession of the Leased Premises within the
time provided , the County shall have the right to recover possession of the Leased
Premises as provided by law . The County's retaking of possession of the Leased
Premises , whether by the Tenant's surrender or abandonment of the Leased Premises , or
by judicial action , shall not be deemed a waiver of any of the County' s other claims , rights
or remedies and will not terminate the Lease , absent notice of termination by the County .
11
ARTICLE 8
8 . 1 . NOTICE . Any notice , request, demand , consent, approval or other communication
required or permitted by this Lease shall be given or made in writing and shall be served
(as elected by the party giving such notice) by any of the following methods : (i ) Hand
delivery to the other party; (ii ) Delivery by commercial overnight courier service ; (iii ) Mailed
by registered or certified mail ( postage prepaid ) , return receipt requested , at the following
addresses :
Tenant: Capcan , Inc. County: General Services Division
Attn : Patricia A. Cannon , President Attn : Tom Frame , Director
3414 Cherokee Drive 1801 27`h Street
Vero Beach , FL . 32960 Vero Beach , FL 32960
Notice given in accordance with the provisions of this Lease shall be deemed to be
delivered and effective on the date of hand delivery or on the second day after the date of
the deposit with an overnight courier or on the date upon which the return receipt is signed
or delivery is refused or the notice is designated by the postal authorities as not delivered
as the case may be , if mailed . Facsimile transmission is acceptable notice effective when
received , provided , however, that facsimile transmissions received ( i . e . , printed ) after 5: 00
p . m . or on weekends or holidays , will be deemed received on the next day that is not a
weekend day or a holiday. The original of the notice must additionally be mailed . Either
party may change its address, by written notice to the other party given in accordance with
the provisions of this Lease .
8 .2 . ENTIRETY OF LEASE . This Lease incorporates and includes all prior and
contemporaneous negotiations , correspondence , conversations , agreements or
understandings applicable to the matters contained herein and the parties agree that there
are no commitments , agreements , or understandings of any nature whatsoever concerning
the subject matter of the Lease that are not contained in this document. Accordingly , it is
agreed that no deviation from the terms hereof shall be predicated upon any prior or
contemporaneous representations or agreements , whether oral or written .
8 . 3 . MODIFICATION . This Lease may be modified , altered , or amended only by a
written document authorized and executed by both parties with the formality and of equal
dignity herewith . This Lease may not be amended , altered or modified by oral agreements
or understandings between the parties unless they are reduced to a written document
authorized and executed by both parties with the formality and of equal dignity herewith .
8 .4 . GOVERNING LAW . This Lease shall be governed by the laws of the State of
Florida and any and all legal action instituted because of this Lease shall be instituted in
Indian River County.
8 . 5 . REMEDIES . No remedy herein conferred upon any party is intended to be exclusive
of any other remedy and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at law or in
12
equity or by statute or otherwise . No single or partial exercise by any party or any right,
power, or remedy hereunder shall preclude any other or further exercise thereof.
8 . 6 . NO WAIVER. All remedies provided in this Lease shall be deemed cumulative and
additional , and not in lieu or exclusive of each other or of any other remedy available to
either party, at law or in equity. Each right, power and remedy of the parties provided in
this Lease shall be cumulative and concurrent and shall be in addition to every other right,
power or remedy provided for in this Lease or now or hereafter existing at law or in equity
or by statute or otherwise . The failure of either party to insist upon compliance by the other
party with any obligation , or exercise any remedy, does not waive the right to do so in the
event of a continuing or subsequent delinquency or default. A party's waiver of one or
more defaults does not constitute a waver of any other delinquency or default. The
County's acceptance of payments under this Lease shall not be construed to operate as a
waiver of any rights under this Lease or of any cause of action arising out
of the performance of this Lease .
8 . 8 . COSTS . If any legal action or other proceeding is brought for the enforcement of this
Lease or because of an alleged dispute , breach , default, or misrepresentation in connection
with any provisions of this Lease , each party shall bear its own costs .
8 . 9 . SURVIVAL . Except as otherwise expressly provided herein , each obligation in this
Lease to be performed by Tenant shall survive the termination or expiration of this Lease .
8 . 10 . SEVERABILITY. If any term , covenant or provision of this Lease , or the application
thereof to any person or circumstances shall , to any extent , be held invalid or
unenforceable for the remainder of this Lease , then the application of such terms or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected , and each and every other term and provision of this
Lease shall be deemed valid and enforceable to the fullest extent permitted by law.
8 . 11 . CAPTIONS . Captions in this Lease are included for convenience only and are not to
be considered in any construction or interpretation of this Lease or any of its provisions .
8 . 12 . CONSTRUCTION . All pronouns and any variations thereof shall be deemed to refer
to the masculine , feminine or neuter, singular or plural , as the identity of the party or parties
may require . The parties hereby acknowledge and agree that each was properly
represented by counsel or had the opportunity so be represented , and this Lease was
negotiated and drafted at arm 's-length so that the judicial rule of construction to the effect
that a legal document shall be construed against the drafter shall be inapplicable to this
Lease .
8 . 14 . PUBLIC RECORDS . The Tenant shall comply with the provisions of Chapter 1191
Florida Statutes ( Public Records Law) in connection with this Lease .
13
Rug 02 2007 1 : 17PM The Beef and Barrel Resta ( 931 ) 456 - 9215 P . 2
Aug 02 2007 D : 10 HP LASERJET FOX 772 - 567 - 0304 P . 1
8. 15. COUNTERPARTS. Th's Lease may be executed in one or more counterparts, each
of which shall be deemed to be an original copy and all of which shall constitute but one
and the same instrument.
8. 16. GENERAL, The Background Recitals are true and correct and form a material
part of this Lease.
IN WITNESS WHEREOF, the parties hereto have accepted, made , and executed
this Lease upon the terms and conditions above stated on the day and year first written
above.
TE : CAACA I COUNTY:
BOARD OF COUNTY COMMISSIONERS
By : IND RIVER COUNTY
aricaA. an non
Tale: President B
Attest: J h A. Be
C Administrator, under delegatlon
By : o thority in consent agenda item 7G,
rp Sec[ ry Board of County Commissioners
Meeting of July 24, 2007
Approved as to form and leg all
swfi
arian . Fel
Assistant County Attorney
14
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Clerk Clerk clerk Permit I1 FOR TELECOM. ENCL. P1WE_2
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OPEN MON-FRI 7:00 AM TILL 3 :40 PM Cir�l' �v -"Cup '•
EAT IN - TAKE OUT Qotat .ed Boo -. bowl,..3.25
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BREAKFAST 7:00AM TILL 11:00 AM Deli pt8e°ns . 1. 50
z LUNCH 11:00 AM TILL 3:00 PM cafe 5fawte:
w . Seasonal Fresh Fruit... .2 .25
Asstorted Muffins.. . 1 .25
Toasted Bagel. . ..1, 25 ` "-
� r Danuts . ...50 each Box. .,4.95 1 1 -
, Croissant..11.50 . .
Toast.,, ,95
.Y-: English Muffin . . .1.25 ° "" •.
Biscuits 2 per Order . . 150
F"kDanish". 1,25A;t
Cinnamon Bun...1.56 ' :-
. Scrambled Eggs With Taast. . .2 .25 ' 1
Y c
Scrambled Eggs With Bacon or Sausage
�, A Toast.. . 3. 50 MISC.
Scrambled Egg Sandwich with Bacon or Sausag(s y Potato Chips.....95
an Bagle or Croissant or Kaiser „. .. 2. 95 Popcorn_.95
Sausage Gravy Over Toast Or Biscuits Pretzels....95
Cookies•..Oreos A Chips Ahoy...1.255
1/2 order. .. 2 ,95 Full Order 3 "95
r+K = Large Cookie....95
F x: Waffle...3 . 25 z Crackers.-..95
French Toast.: , 2 .95 Candy Saps, &urn....95 ,
Pancakes. -.3.25 r1 We Also Cory Asprin, Tums, Cough Drops Etc...
ALA CAR'T'E
Bacon 3 Strips•. 150 _ SANDWTC1.4ES
c Sausage 2 Potties... 1.50
E Assorted Ya r t•.-. 1.25 DELI SANDWICHES. . .5. 50
Turkey, Ham, Roast Beef , Albacore Tuna Salad
Cottage Cheese, •11.25
f Cold Cereal .,1, 1.25 Italian, Turkey, Ham, Roast Beef, Tuna Bacon : a
SALADS
K "'R Chef Salad,, .115.95
r. BEVERAGESCaesar Salad-_4-95 w/ Chicken.-.5.95
Tossed ,25
TSeattles Best Coffee.J . 50 Sr SSaluna Salad over alad...5.95
Iced Tea..,Sweet or Unsweet••. 1.25 Oscar Meyer Hot Dog-.2-95
t Soda... 5m. ...95 Large. . .1 , 50 k Hamburger.".2.95 w! Cheese...3.Z5
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Tata Assorted kat Teas : . 150 -- B-B.Q. Pulled Pork Sandwich...3.95
Star Bucks Bottled Fr accim ...2 .95 �' Sloppy Joe.-.2.95
2 PC. Fried Chicken...2 .95
Lemon Ade-.. 1.50
Zepherhilis Water., ,95 DAILY LUNCH SPECIAL
u 5 '
a Fiji Water , • .1,95
k
San Pellegrino . , 150
5
37
8 . 15 . COUNTERPARTS . This Lease may be executed in one or more counterparts , each
of which shall be deemed to be an original copy and all of which shall constitute but one
and the same instrument.
8 . 16 . GENERAL . The Background Recitals are true and correct and form a material
part of this Lease .
IN WITNESS WHEREOF , the parties hereto have accepted , made , and executed
this Lease upon the terms and conditions above stated on the day and year first written
above .
TENANCAPCAN , INC . COUNTY :
BOARD OF COUNTY COMMISSIONERS
By: ,LC C (�L .t- IC-6- INDIAN RIVER COUNTY,
Patricia A . Cannons
Title : President
Attest : Ybard
B it
y Administrator, under delegation
By: �� hority in consent agenda item 7G ,
Corporate`Secret of County Commissioners
Meeting of July 24 , 2007
Approved as to form and legal
sufficiency :
aria n E . Fell
Assistant County Attorney
14