HomeMy WebLinkAboutO-1530ORDINANCE NO. 1530
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF FAIRHOPE,
ALABAMA, AS FOLLOWS:
SECTION 1. It is hereby established and declared that the following described real property
of the City of Fairhope, Alabama, is not needed for public or municipal purposes during the
term of this lease, to -wit:
"Fly Creek Fish Market" a/k/a the Municipal Fisherman Dock, located on the
North and West side of Fly Creek in the City of Fairhope, Fairhope, Alabama. A
map of the area is attached as Exhibit "A."
SECTION 2. The City of Fairhope, Alabama, having received an offer from 17 Turtles
Outfitters, Inc. to lease that real property described in Section 1, above, it is hereby declared
to be in the best interest of the public and the City of Fairhope, Alabama, to lease said real
property to 17 Turtles Outfitters, Inc. under the following terms and conditions, to -wit:
The term of this lease agreement shall begin on February 1, 2015 and ending at
midnight on January 31, 2016. The rent for said lease shall be the sum of $250.00
per month payable monthly in advance on the 1 st day of each month with the first
payment due on February 1, 2015, which lessee agrees to pay to LESSOR at P.O.
Drawer 429, Fairhope, Al 36533, or at such other place or places as LESSOR may
from time to time designate. Lessee shall pay all the charges for all utilities used
in and about the leased property.
SECTION 3. Pursuant to the authority granted by Section 11-47-21 of the Code of Alabama
of 1975, the Mayor of the City of Fairhope, Alabama, is hereby directed to execute said lease
agreement in the name of the City of Fairhope, Alabama.
SECTION 4. The sections, paragraphs, sentences, clauses and phrases of this ordinance are
severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be
declared unconstitutional by a court of competent jurisdiction, then such ruling shall not
affect any other paragraphs and sections, since the same would have been enacted by the
municipality council without the incorporation of any such unconstitutional phrase, clause,
sentence, paragraph or section.
SECTION 5. This ordinance shall take effect immediately upon its due adoption and
publication as required by law.
ADOPTED THIS 26TH DAY OF JANUARY, 2015
ATTEST:
Lisa A. anks, MMC
City Clerk
Vh'
imot y Kant, r
ayo
FLY CREEK FISH MARKET LEASE
STATE OF ALABAMA
COUNTY OF BALDWIN
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THIS LEASE agreement made and entered into this 2 day of February,
2015, at Fairhope, Alabama by and between the CITY OF FAIRHOPE, ALABAMA,
hereinafter referred to as "Landlord" or "Lessor" and 17 TURTLES OUTFITTERS,
INC, a domestic corporation, hereinafter referred to as "Tenant" or "Lessee".
1. Premises and Term. Landlord does hereby lease and demise unto
Tenant that premises situated in Baldwin County, Alabama, commonly known as the
"Fly Creek Fish Market" and which is described in attached Exhibit "A", which is
made a part hereof and incorporated herein by this reference, for continuous use
and occupancy for and during the term of one year, beginning February 1, 2015 and
ending January 31, 2016.
2. Rent. Tenant promises and agrees to pay to Landlord for the term of this
lease the sum of $250 per month payable monthly in advance on the first day of
each month.
3. Improvements and Services. Among other things, Tenant shall furnish
and provide at least $8,600 of improvements to the leased premises, including, but
not limited to the following improvements, facilities and services on the leased
premises, during the term of this lease:
(a) Access to tourists and guided tours of the area;
(b) Refurbish the existing building in compliance with all building
codes and flood plain requirements;
The improvements, and additions required hereinabove, and all other improvements
and additions to the leased premises, must have the prior written approval of the
Landlord.
All improvements and additions required herein shall be completed within three (3)
months of the execution date hereof and thereafter all improvements, facilities and
services shall remain available to the public, during the entire term of this lease and
any extension thereof.
The failure of Tenant to provide the improvements, facilities and services during the
term of this lease or to obtain the prior written consent of Landlord for any
improvements or additions shall constitute a default herein and, at the option of the
Landlord, shall constitute a default as hereinafter provided.
Fish Market Lease
Page 1 of 8
4. Use of Premises. The premises, during the term of this, lease shall be
used and occupied solely for the purposes set forth above; and, Tenant shall not use
nor permit the same to be used for any other purpose or purposes without the prior
written consent of the Landlord. Tenant at all times shall fully comply with all laws,
ordinances and regulations of any lawful authority having jurisdiction of said
premises including, but not limited to, such as shall relate to health, safety,
sanitation and cleanliness. Tenant will not commit any waste to said property nor
permit the same to be done and will take good care of said premises at all times,
and will not, by any act or omission, render Landlord liable for any violation thereof.
5. Condition of, Damage to and Maintenance of Premises. Tenant shall
examine said premises before taking possession, and Tenant's entry into possession
shall constitute conclusive evidence that, as of the date thereof, the said premises
were in good order and satisfactory condition. Landlord does not warrant the
condition of the premises or that the property is fit for any particular purpose,
except as hereinafter set out.
Landlord shall not be liable for any loss or damage caused by, or growing
out of, any breakage, leakage, disorder or defective condition of the heating, air
conditioning, or mechanical installations and/or systems, electric wiring, pipes, or
plumbing. Landlord shall not be liable for any damage to any property on said
premises caused by, or growing out of, fire, rain, lightning, wind, high water, over—
flow water, freezing or other causes.
6. Fixtures. All improvements and additions to the leased premises shall
become the property of the Landlord, with the exception of furniture or trade
fixtures. Said furniture and trade fixtures remain the property of the Tenant, and
may be removed by the Tenant upon the expiration of this lease, provided the
Tenant shall have complied with all terms, conditions and covenants of this lease. No
improvements by Tenant, including painting, shall be made upon said property
without the prior written consent of Landlord. Landlord shall have the right to
require a written waiver of mechanics' or materialmen's liens by the contractor prior
to executing written consent to place said improvements on the property.
7. Indemnity and Insurance; Waiver of Subrogation. Tenant will
indemnify, protect and save harmless Landlord, its officers, officials, agents,
appointees and employees, from any loss, cost, damage, liability or expense
including Court costs, attorney's fees and any other legal costs, caused by injury or
damage to any person or to property of any person other than Tenant while in or on
said premises herein leased; and, the Landlord shall not be liable for any loss of any
property of Tenant, however occurring. The Landlord, its officers, officials, agents,
appointees, and employees, shall be indemnified by the Tenant against such liability
arising from all causes, except the acts or omissions of Landlord. In furtherance
hereof, Tenant will obtain and provide a copy to Landlord of a policy of general
liability insurance subject to approval of Landlord in amounts of not less than
$1,000,000.00 showing Landlord as an additional loss payee.
Fish Market Lease
Page 2 of 8
Tenant shall maintain insurance covering its stock of goods, inventory,
leasehold improvements and other property located in the— above described
premises, and insurance covering the building and other improvements owned by
either Landlord or Tenant on the above described premises for the full value of
said improvements with a copy of said policy to be deposited with Landlord and
non -cancelable until not less than thirty (30) days notice has been given to
Landlord of the proposed cancellation. Tenant agrees not to assign to any
insurance company any right or cause of action for damage to the property of
Tenant located on the above described premises which Tenant now has or may
subsequently acquire against Landlord during the term hereof. This agreement not
to assign rights or causes of action shall apply only where such insurance as
described herein and applicable law allow the Insured to enter into such an
agreement; and, this agreement shall apply only as respects insured loss occurring
on the property described herein.
8. Utilities. Tenant shall pay all the charges for all utilities used in and
about the leased premises including required utility deposits.
9. Overloads. Tenant will not overload the building, its floors, roof, or
walls, the bulkheads, pier and concrete apron and shall be liable for all damages to
the premises or other consequences of overloading.
10. Default. Upon the happening of any one or more of the events as
expressed in subparagraphs hereof below (which said events shall separately and
severally constitute a default hereunder at Landlord's option), the Landlord shall
have the right at the option of the Landlord to: (1) annul and terminate this lease,
and thereupon re-enter and take possession of said premises; or (2) re-enter and
re -let said premises from time to time, as agent of the Tenant, and such re-entry
and/or re -letting shall not discharge Tenant except that net rents (that is, gross
rents less the expense of collecting and handling, and less commissions) collected as
a result of such re -letting shall be a credit against the Tenant's liability for rents
under the terms of this lease. Nothing herein shall be construed to require the
Landlord to re-enter and re -let in such event. Nor shall anything herein be construed
to postpone the right of the Landlord to sue for rents, whether matured by
acceleration or otherwise; Landlord shall have the right to demand, collect and/or
sue therefore at any time after default.
Each of the following may be treated by Landlord as a default:
Tenant's failure to pay any one or more of said installments of rent as
and when the same becomes due, or failure to pay on demand any
amount due Landlord and secured as additional rent hereunder.
Tenant's removal, attempt to remove or permitting of removal from
said premises (except in the usual course of trade) the goods,
furniture, effects or other property of the Tenant brought thereon.
Fish Market Lease
Page 3 of 8
Execution or other legal process upon the goods, furniture, effects or
other property of the Tenant brought on said premises, or upon the
interest of the Tenant in this lease.
Filing of a petition in bankruptcy or a petition under the bankruptcy
laws by or against the Tenant, or commission by the Tenant of an act
of bankruptcy.
An assignment for the benefit of creditors by the Tenant or
appointment of a receiver of Tenant's property.
Before the expiration of the term hereof, and without the written
consent of the Landlord, Tenant vacates said premises or abandons
the possession thereof, or uses the same for purposes other than
herein specified or ceases to use said premises for the purposes
herein specified.
Tenants failure to provide records, tax filings and returns and books of
account to Landlord as provided for herein.
Tenants failure to properly insure the
property as provided for herein.
Tenant's violation of any other term, condition or covenant on the part
of the Tenant herein contained.
Upon default, upon breach of condition, or upon any termination of this lease
or re-entry of said premises, the rents hereunder or the entire rental period and any
other indebtedness payable under provisions hereof shall be and become
immediately due and payable and without regard to whether or not possession of
the premises shall have been surrendered to or taken by the Landlord. Said sum
shall bear interest at the maximum legal rate.
11. Attorney fees and exemption waiver. Tenant agrees to pay a
reasonable attorney's fee and all costs, if it becomes necessary for Landlord to
employ an attorney to collect any of the rent agreed to be paid, to enforce any of
the provisions of this lease, to obtain possession of the leased premises, or
otherwise to exercise any option or enforce any right given to Landlord upon default
by Tenant. Tenant expressly waives any exemptions secured to Tenant, whether a
corporation or individual, under the laws of any state or the United States of
America as against the collection of any debts herein or hereby incurred or secured.
12. Relation of Parties. The execution of this lease or the performance of
any act pursuant to the provisions hereof shall not be deemed or construed to
create between Landlord and Tenant the relationship of principal and agent,
partnership, or joint venture, and the relationship between them shall be that only of
Fish Market Lease
Page 4 of 8
Landlord and Tenant.
13. Landlord's reservation of rights. The failure of Landlord to insist upon
a strict performance of any of the covenants or conditions of this lease or to exercise
any option herein conferred in any one or more instances shall not be construed as
a waiver or relinquishment of any such covenants, conditions or options, but the
same shall remain in full force and effect. The receipt by Landlord of rent with the
knowledge of the breach of any covenant hereof shall not be deemed a waiver of
such breach. No waiver of Landlord of any provisions hereof shall be deemed to
have been made unless expressed in writing and signed by Landlord.
14. Signs. The Tenant shall not erect on, display on, or cause to be
painted on or affixed to the demised premises any lettering, signs, advertisements,
awnings, or other projections thereon, without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld. The Tenant's request
therefore shall be in writing and shall contain such information as to the proposed
lettering and/or signs as the Landlord may reasonably require.
15. Condemnation. If the whole of the demised premises shall be taken by
Federal, State, County, City, public utility, or other authority for public use or under
any statute, or by right of eminent domain, the term hereby granted and all rights of
the Tenant hereunder shall immediately cease and terminate, and the Tenant shall
be entitled only to that part of any award that may be made for such taking, to the
extent of Tenants improvements thereon. If but a part of the demises premises be
taken by right of eminent domain, this lease shall continue in full force and effect as
to the property remaining, provided such property remaining is capable of continued
enjoyment by the Tenant for the uses and purposes provided for hereunder. Tenant
shall not be entitled to any award that may be made for such taking, except to the
extent of Tenants improvements thereon, nor shall such taking constitute a
termination of this lease, or a constructive eviction of Tenant. However, the rent
payable hereunder shall be adjusted as of the time of such taking to equitably reflect
the change in the size of said remaining property.
16. Subordination to mortgage. This lease shall at all times be subject and
subordinate to the lien of any bonds, warrants, or mortgages now on or hereafter
placed upon the premises, and to all advances made or hereafter to be made upon
the security thereof. The Tenant binds and obligates himself to execute and deliver
such further instrument or instruments subordinating this lease to the lien of any
such bonds, warrants, or mortgages at any time same shall be requested by the
Landlord. Whether or not this lease is subordinate to any such bond, warranty or
mortgage, the Tenant's right to quiet enjoyment of the premises demised hereby
shall be maintained so long as Tenant shall pay all rentals and perform all duties
required of Tenant hereunder.
Fish Market Lease
Page 5 of 8
17. Prohibition on Transfer by Tenant. Each and every transfer or
assignment of this lease by the Tenant or any interest therein, and each and every
subletting of said premises, or any part thereof, or any interest therein, shall be null
and void, unless the prior written consent of the Landlord be obtained. Any violation
hereof constitutes a substantial and material breach of condition of this lease, with
all of the rights thereunto pertaining as in the case of default for any other cause
hereunder.
18. Waste or Nuisance. Tenant shall not permit, cause or allow any act or
omission in, on or about said premises which shall unreasonably cause or be likely to
unreasonably cause injury or damage to any person, or to the premises, or to the
right of way adjoining the premises. Tenant shall not allow, cause or allow any
unreasonably obnoxious, disturbing or offensive odors, fumes, gases, smoke, dust,
steam or vapors or any loud or disturbing noise, sound or vibration to originate on or
be omitted from said premises. Tenant shall at all times keep said premises in
orderly condition and shall keep the entranceways adjoining the premises free from
rubbish and dirt. Tenant agrees to permit no waste of the property, but on the
contrary to take good care of the same and upon termination of this lease to
surrender possession of the same in as good condition as at the commencement of
the term or as they may be put in during the term as reasonable use and wear
thereof will permit.
19. Binding effect. The covenants, conditions and agreements contained in
this lease shall bind and inure to the benefit of the Landlord and Tenant and their
respective heirs, executors, administrators, successors and assigns. This provision
shall not permit the assignment of the lease or subleasing of the premises, except as
heretofore provided.
20. Landlord's Access. Landlord, its agents or representatives, at all
reasonable times may enter said premises to inspect to insure compliance with the
terms hereof and to exhibit the premises to prospective tenants or purchasers.
21. Notice. Any notices, demands, communications, or election to exercise
any option herein, whether intended for the Landlord or the Tenant, shall be in
writing and may be delivered in person or by registered or certified mail to the
address of the party intended as the recipient thereof at such address as stated
hereon, or to such other address as the parties may from time to time designate in
writing.
22. Cumulative rights. All rights and remedies provided herein for the
Landlord are cumulative and are in addition to any other remedies accruing to
Landlord by operation of law.
23. Additional terms. Lessee agrees to comply with the following
additional requirements of Lessor:
Fish Market Lease
Page 6 of 8
(a) Trees on the leased premises may not be cut or removed,
except those marked and approved by Lessor. Any hardwood trees, other than those
approved by Lessor, which are cut or die from damage, which, if in the opinion of
the Fairhope Tree Commission, was an intentional, willful, or neglect act, shall cause
Lessee to pay $2,000 per such tree into the City Tree Fund, which is maintained for
the planting and preservation of trees within the municipality.
(b) The leased premises shall be kept free of debris and litter at all
times, including, but not limited to, adjacent parking areas. Sufficient containers
shall be approved by Lessee in and around the leased premises to provide for proper
disposal of litter and debris.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease by
affixing their signatures and seals on the day and year first above set forth.
LANDLORD:
CITY OF FAIRHOPE
By:
Tkmoth4 M. Kant Mav r
Attest:
6;
i
Lisa A Hank , MMC
City Clerk
1114►I_1►116
17 TURTLES OUTFITTERS, INC.
By:
Elizabeth D. Tonsmeire
Director
Fish Market Lease
Page 7of8
STATE OF ALABAMA
COUNTY OF BALDWIN
I, the undersigned, a Notary Public in and for said County in said State, do
hereby certify that TIMOTHY M. KANT whose name is signed to the foregoing
conveyance as Mayor of the City of Fairhope, and who is known to me
acknowledged before me on this day, that being informed of the contents of said
instrument, he with full authority executed the same voluntarily on the day the same
bears date.
Given under my hand and seal on this the day of January, 2015.
c�.ArFIi SEAL) I b4L4A� %h-�4d
Notary Pu i
My Commission Expires: g l I Z016
STATE OF AL'ABAMA
-COUNTY OF BALDWIN
I. the undersigned, a Notary Public in and for said County in said State, do
hereby certify that ELIZABETH D. TONSMEIRE whose name as the Director of 17
TURTLES OUTFITTERS, INC., a corporation is signed to the foregoing Lease and
who is known to me acknowledged before me on this day, that being informed of
the contents of this instrument, she, as such officer and with full authority executed
the same voluntarily for and as the act of said corporation on the day the same
bears date.
` ,,��►�:,,,, Given under my hand and seal on this theJ.-- day of t 412015
(AfFiX SEAL)
otary P blic
My Commission Expires: '0P'
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INSTRUMENT PREPARED BY:
Marion E. Wynne
City Attorney
P. 0. Box 1367
Fairhope, AL 36533
(251)928-1915
Fish Market Lease
Page 8 of 8
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