HomeMy WebLinkAboutO-1566c
ORDINANCE NO. 1566
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 Seventeen
Turtles Outfitters, LLC 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 Seventeen Turtles Outfitters, LLC under the following terms and
conditions, to -wit:
The term of this lease agreement shall begin on February 1, 2016 and ending at
midnight on January 31, 2017. 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, 2016, 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.
Lessee is hereby granted and shall, if not at the time in default under this Lease,
have an option to renew this Lease for three (3) successive periods of one (1) year
each, on the same terms and conditions herein contained, except that the rental
may, at Lessor's option, be increased.
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 25TH DAY OF JANUARY, 2016
ATTEST:
isa A. an , MMC
City Clerk
FLY CREEK FISH MARKET LEASE
STATE OF ALABAMA
COUNTY OF BALDWIN
THIS LEASE agreement made and entered into this /, day of February, 2016, at
Fairhope, Alabama by and between the CITY OF FAIRHOPE, ALABAMA, hereinafter referred
to as "Landlord" or "Lessor" and SEVENTEEN TURTLES OUTFITTERS, LLC, a domestic
limited liability company, 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, 2016 and ending January 31, 2017.
2. O_, tp ion. Lessee is hereby granted and shall, if not at the time in default under this
Lease, have an option to renew this Lease for three (3) successive periods of one (1) year each,
on the same terms and conditions herein contained, except that the rental may, at Lessor's option,
be increased.
3. Rent. Tenant promises and agrees to pay to Landlord for the term of this lease the sum
of $250.00 per month payable monthly in advance on the first day of each month.
4. Improvements and Services. All improvements and additions required in the previous
lease 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.
5. 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.
6. 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.
Fish Market Lease
Page 1 of 7
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.
7. 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.
8. 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.
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.
9. Utilities. Tenant shall pay all the charges for all utilities used in and about the leased
premises including required utility deposits.
10. 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.
11. 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
Fish Market Lease
Page 2 of 7
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.
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.
Tenant's failure to provide records, tax filings and returns and books of account to
Landlord as provided for herein.
Tenant's 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.
Fish Market Lease
Page 3 of 7
12. 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.
13. 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 Landlord and Tenant.
14. 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.
15. 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.
16. 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.
17. Subordination to mortane. 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 4 of 7
18. 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.
19. 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.
20. Bindin ems. 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.
21. 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.
22. 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.
23. 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.
24. Additional terms. Lessee agrees to comply with the following additional
requirements of Lessor:
(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.
Fish Market Lease
Page 5 of 7
(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
Attest:
Y
6�?isa A anks, MMC
City C erk
TENANT:
SEVENTEEN TURTLES OUTFITTERS, LLC.
By:
Elizabeth D. Tonsmeire
Manager/Member
Fish Market Lease
Page 6 of 7
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 aT�day of January, 2016.
(AFFIX SEAL)
o ary Public
My Commission Expires: My Commission Expires 03/23/2016
STATE OF ALABAMA
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 Manager/Member of
SEVENTEEN TURTLES OUTFITTERS, LLC, 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 limited liability company on the day the same bears date.
Given under my hand and seal on this the 5 day of ��20,
(AFFIX SEAL)
Notary Public
My Commission pires: SANDRA ZAAAFCNIK
Notary Public
STATE OF ALABAMA
MY Commission Expires 05/29/19
INSTRUMENT PREPARED BY:
Marion E. Wynne
City Attorney
P. O. Box 1367
Fairhope, AL 36533
(251) 928-1915
Fish Market Lease
Page 7 of 7
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