710-Seminole Club-Lawsuit IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR SEMINOLE COUNTY, FLORIDA
CIVIL DIVISION
SEMINOLE CLUB, NC., CASE
Plaintiff,
THE CITY OF SANFORD, '
Defendant.
/
SUMMONS
THE STATE OF FLORIDA:
To Each Sheriff of the State:
YOU ARE HEREBY COMMANDED to serve this summons and a copy of the complaint
in this action on defendant:
The City of Sanford
c/o Larry Dale, Mayor
City Hall
300 North Park Avenue
Sanford, Florida 32772
Each defendant is hereby required to serve written defenses to the complaint or petition
on:
Charles R. Harrison
1400 West Fairbanks Avenue, Suite 204
Winter Park, Florida 32789
Phone: (407) 644-6445
Florida Bar No. 0804460
within 20 days after service of this summons on that defendant, exclusive of the day of service,
and to file the original of the defenses with the clerk of this court either before service on
plaintiffs attorney or immediately thereafter. If a defendant fails to do so, a default will be
entered against that defendant for the relief demanded in the complaint or petition.
DATED on ,19__
MARYANNE MORSE~ CLERK
Clerk of the Circuit Court
By:
(COURT SEAL) As Deputy Clerk
NOTICE
AMERICANS WITH DISABILITIES ACT OF 1990
In accordance with the American Disabilities Act, persons with disabilities needing a
special accommodation to participate in this proceeding should contact Court Administration,
301 North Park Avenue, Suite N-301, Sanford, Florida 32771 within two (2) working days pdor
to the proceeding at (407) 323-4330, extension 4227. If hearing impaired, (TDD) 1-800-955-
8771.
IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR SEMINOLE COUNTY, FLORIDA
CIVIL DIVISION
Plaintiff,
vs.
RECEIVED
THE CITY OF SANFORD, ~.'~A~¥~ ,~!,~']E ~0~SE ' "="~
Defendant. ~" ~~
/ ..
DEC~TORY JUDGMENT, BR~CH OF CONTACT
AND DEMAND FOR JURY TRIAL
Plaintiff, SEMINOLE CLUB, INC. ("SEMINOLE CLUB"), sues defendant, the CI~ OF
SANFORD (the ~CI~"), and states as follows:
COUNT I
DECLARATORY JUDGMENT
1. This is an action for declaratory judgment and supplemental relief concerning
disputed rent pursuant to a lease in an amount in excess of Fifteen Thousand Dollars
($15,000.00), exclusive of cost, interest and attorney fees.
2. SEMINOLE CLUB is a Florida corporation which maintains its principal place of
business in the State of Florida.
3. The CITY is a municipal corporation located in Seminole County, Florida.
4. Venue is proper as the CITY is a municipal corporation located in Seminole
County, Florida and SEMINOLE CLUB maintains its principal place of business in Seminole
County, Florida.
5. All conditions precedent to the filing of this cause have been performed, have
occurred or have been waived.
6. At all times mentioned the CITY was, and now is, the owner of the real property,
buildings and appurtenances commonly designated the Sanford Golf Course and Country Club.
The legal description of the real property is set forth within paragraph 1 of the lease as
described below.
7. On March 11, 1981, the CITY leased the aforementioned real property, buildings
and appurtenances to SEMINOLE CLUB for a term of sixty-seven (67) years and seven (7)
months pursuant to a written lease agreement ( the "lease") dated that day and duly executed
by the CITY and SEMINOLE CLUB. (A copy of the lease is attached as Exhibit "A").
8. The CITY prepared and drafted the lease.
9.Pertinent provisions of the lease are as follows:
Paragraph 2 of the lease provides in part:
Rentals
Lessee covenants and agrees during the remaining term hereof,
to spend annually on capital improvements, in lieu of rent, first to the golf
course itself until such time as the layout and condition of said course are
satisfactory to Lessor, and then to building improvement and additional
structures, the following sums: five percent (5%) of all gross revenue ....
In the event any of the aforesaid sums, on an annual basis, are not spent
in lieu of rent on such improvements, the same shall be paid as rent to
the City. Capital improvements shall be defined as those types of
improvements which become permanent in nature as compared to those
improvements which are required only to maintain repair and condition;
provided, however, the expenditures required herein for re-working and
renovation of tees and greens shall be considered as capital
improvements. It is further agreed that the above described sums may
be carried over from year to year ....
Paragraph 3, subsection (1) provides in part:
Conditions
...The annual maintenance requirements for the golf course shall
include as minimum standards proper fertilization, watering, mowing and
weed killing programs ....
Paragraph 3, subsection (11) provides in part:
Inspections of ProDertV bv Lessor
The Lessor shall have the right to enter upon all of the real
property and buildings hereby leased and let, for the purpose of
inspecting the property leased and let, to determine whether the terms
and conditions of this lease are being observed and carried out by the
Lessee, ....
Paragraph 3, subsection (22) provides in part:
ContinGencies Constituting a Breach Hereof
... The failure of the Lessee to pay any of the rentals, ... and the
continuance of such failure for a period of sixty (60) days after notice in
writing from the Lessor to Lessee of such failure, shall likewise constitute
a breach of this lease, at the option of the Lessor, so as to terminate all
rights, privileges and interest of the Lessor, herein and heraunder. In the
event of a breach of this lease, the Lessee shall and will pay to the
Lessor all costs, reasonable attorney's fees, and other expenses which
may be incurred by the Lessor in enforcing their rights hereunder ....
10. A controversy has arisen between SEMINOLE CLUB and the CITY concerning
whether or not SEMINOLE CLUB has provided capital improvements in a sufficient amount in
lieu of rent pursuant to the lease.
11. On February 26, 1998, the CITY sent a demand letter (attached as Exhibit "B") to
SEMINOLE CLUB which stated in part:
...Pursuant to section 22 of the lease ... notice is provided that
Seminole Club, Inc. has failed to fulfill a term of the Lease. The breach
of the Lease is failure by the Lessee to pay rent as required under
paragraph 2 of the Lease. The amount of accrued rent owed is
$255,346.00. The breach includes claiming as improvements items
which were not actually capital improvements as defined in the Lease, as
well as claiming credit for expenses which do not fall under the category
of "capital improvements", as defined in paregraph 2.
Under Section 22, Seminole Club, Inc. has sixty (60) days to cure
the breach or all of Seminole Club, Inc.'s rights, privileges and interests
shall be terminated and Seminole Club, Inc. shall be obligated for costs,
attorney's fees and other expenses incurred by the City in enforcing its
dghts under the Lease.
12. Prior to the expiration of the sixty (60) days to cure, on Apdl 27, 1998, the CITY
and SEMINOLE CLUB mutually agreed to extend this time frame by twenty-nine (29) days
ending on May 26, 1998, at which time if the total amount demanded by the CITY is not paid by
SEMINOLE CLUB, the CITY believes it has a right to pursue remedies provided by the lease.
13. Since the inception of the lease, SEMINOLE CLUB has always made annual
capital improvements in lieu of rent pursuant to the lease.
14. SEMINOLE CLUB annually provided to the CITY its list of capital improvements
made during the prior lease year in lieu of rent.
15. The lease provided that the CITY had the dght to inspect the golf course and
buildings to determine whether SEMINOLE CLUB was carrying out the terms and conditions of
the lease. The CITY has never availed itself of that right with respect to SEMINOLE CLUB's
annual submittals of capital improvements in lieu of rent.
16. Until February 1998, the CITY has never made any accrued rent demand for any
of the lease years, except for one instance in 1984.
17. In 1984, the CITY made a one-time accrued rent demand. At that time,
representatives of SEMINOLE CLUB and the CITY had a meeting and the matter was resolved
at the meeting without any payment of accrued rent by SEMINOLE CLUB.
18. In 1998, for the first time, SEMINOLE CLUB learned that the CITY's staff over
the years had approved certain disbursements as capital improvements in lieu of rent and had
disallowed others.
19. Until 1998, the CITY never demanded the payment of accrued rent, except for
the one resolved instance fourteen (14) years ago referred to above. SEMINOLE CLUB
submitted lists of capital improvements in lieu of rent at the end of each lease year; the CITY
received the submittals; the CITY, pursuant to the lease, had the right to enter the golf course
and the buildings for the purpose of inspecting same to determine whether the terms and
conditions of the lease were being observed and carried out by SEMINOLE CLUB; the CITY
never availed itself of this inspection right with respect to the capital improvements in lieu of
rent; the CITY accepted SEMINOLE CLUB's annual submittals of capital improvements in lieu
of rent without formal objection; and, in the few instances where the CiTY had questions about
the submittals, the questions were resolved and, to the knowledge of SEMINOLE CLUB, the
CITY never formally disallowed any of the capital improvements in lieu of rent until 1998. Thus,
the CITY's failure to act resulted in approval or consent by omission of SEMINOLE CLUB's
annual capital improvement submittals.
20. The CITY's conduct and acquiescence caused SEMINOLE CLUB to believe in
the existence of a certain state of things, specifically, that its capital improvement submittals in
lieu of rent were approved by the CITY. The CITY, by its actions, omissions and acquiescence,
did so willfully or negligently and by which SEMINOLE CLUB was induced to act by continuing
to spend its money on the same types of items which had been previously apprcved as capital
improvements. SEMINOLE CLUB's continual expenditure of its money for what it believed
were acceptable capital improvements in lieu of rent resulted in SEMINOLE CLUB changing its
position concerning the allocation of its resources. The present disallowance of previous capital
improvements in lieu of rent by the CITY has the great potential to cause SEMINOLE CLUB
injury. SEMINOLE CLUB refrained from acting in such a manner and to such an extent as to
change its position or status from what SEMINOLE CLUB would have otherwise done. If
SEMINOLE CLUB had known in the past the CITY's current position concerning its previously-
submitted capital improvements in lieu of rant, SEMINOLE CLUB would have raallocated the
expenditure of its moneys for other capital improvement items.
21. Thus, the CITY, by its language or conduct, has led SEMINOLE CLUB to do
what SEMINOLE CLUB would not have otherwise done and SEMINOLE CLUB should not be
subjected to loss or damage by relying on the CITY's acts, omissions or acquiescence.
SEMINOLE CLUB will be prejudiced if the CITY is not estopped in asserting its claim for the
accrued rent. The CITY, with full knowledge of the facts, has stood by without formally
asserting its rights or raising any objection while SEMINOLE CLUB has, on the faith of the
CITY's actions, omissions and apparent acquiescence, incurred large expenditures which will
be wholly or partially lost if the CITY's rights or formal objections ara subsequently given effect.
22. Based on the allegations set forth herein, the CITY has intentionally or voluntarily
relinquished its known right to formally object to SEMINOLE CLUB's annual list of capital
improvements in lieu of rent. The CITY, by its acts, omissions or acquiescence, has waived its
right to formally object to SEMINOLE CLUB's annual list of capital improvements in lieu of rent.
This waiver may be inferred by the CITY's acts, omissions or acquiescence which put
SEMINOLE CLUB off its guard leading SEMINOLE CLUB to believe that the CITY had waived
its right to formally object to SEMINOLE CLUB's annual list of capital improvements in lieu of
rent.
23. The definition of capital improvements in lieu of rent contained in the lease is
uncertain or doubtful and the CITY and SEMINOLE CLUB by their conduct, as set forth herein,
placed a reasonable construction upon the term "capital improvements in lieu of rent".
SEMINOLE CLUB and the CITY defined capital improvements in lieu of rent as all of
SEMINOLE CLUB's past capital improvements in lieu of rent submittals.
6
24. Since 1984 and subsequently, until 1998, SEMINOLE CLUB and the CITY were
satisfied that SEMINOLE CLUB had provided capital improvements in a sufficient amount in lieu
of rent each year pursuant to the lease. Any other contention does not conform to the
understanding of the parties to the lease.
25. SEMINOLE CLUB claims, under the provisions of the lease and based upon the
acts and omissions of the CITY for the sixteen (16) lease years subsequent to entering into the
lease:
a. Pursuant to §95.11 of the Florida Statutes a five-year Statute of
Limitation prevents the CITY from enforcing any claim for accrued rent
arising prior to lease year 1992/1993;
b. The CITY is estopped and/or has waived its dght to dispute the capital
improvements which SEMINOLE CLUB submitted for all lease years
through 1996/1997. Thus, SEMINOLE CLUB does not owe any accrued
rent to the CITY and has a carryover capital improvement credit for lease
year 1997/1998;
c. The acts of SEMINOLE CLUB and the acts and omissions of the CITY
have modified and interpreted the lease to accept SEMINOLE CLUB's
annual capital improvement submittals for all lease years through
1996/1997. Thus, SEMINOLE CLUB does not owe any accrued rent to
the CITY and has a capital improvement carryover credit for lease year
1997/1998; and
d. Since lease year 1992/1993, SEMINOLE has a capital improvement
carryover credit of $223,528 for the 1997/1998 lease year. (A calculation
of the Capital Improvement Carryover is attached as Exhibit "C".)
26. The CITY contends that SEMINOLE CLUB has failed to fulfill a term of the lease
which is the failure to pay accrued rent totaling $255,346.00.
27. The lease is now in full force and effect between SEMINOLE CLUB and the
CITY. In order to avoid any allegation by the CITY of SEMINOLE CLUB's alleged breach of the
lease, SEMINOLE CLUB paid the CITY under protest the disputed rent while reserving all of
SEMINOLE CLUB's legal rights and positions as set forth in this action. SEMINOLE CLUB's
payment of this disputed rent in no way represents a recognition or confirmation of any alleged
debt due the City by SEMINOLE CLUB. This payment under protest by SEMINOLE CLUB shall
not act to toll the Statute of Limitations and/or begin any limitation period running anew.
Attached as composite Exhibit "D" are SEMINOLE CLUB's letter to the CITY and a copy of
SEMINOLE CLUB's cashier's check in the amount of $255,346 payable to the City of Sanford.
28. Additionally, by paying to the CITY the disputed amount under protest,
SEMINOLE CLUB asserts that this prevents the CITY from utilizing its option to terminate the
lease and from recovering the CITY's costs, reasonably attorney's fees, other expenses and
damages in this lawsuit pursuant to paragraph 3(22) of the lease.
29. SEMINOLE CLUB is in doubt about its liability for the alleged accrued rent
asserted by the City and its rights under the lease based upon the CITY's acts and omissions
constituting waiver, estoppel, modification and interpretation of the lease, and the ambiguities of
the lease as created by its drefter, the CITY.
WHEREFORE SEMINOLE CLUB requests:
A judgment declaring and adjudicating the respective rights and duties of
SEMINOLE CLUB and the CiTY under the mentioned provisions of the lease, and further
declaring that under the provisions of the lease and based upon the acts, omissions and
acquiescence of the CITY for the seventeen (17) years subsequent to entering said lease:
8
a. Pursuant to §95.11 of the Florida Statutes a five-year statute of limitation
prevents the CITY from enforcing any claim for accrued rent arising prior
to lease year 1992/1993;
b. The CITY is estopped and/or has waived its right to dispute the capital
improvements which SEMINOLE CLUB submitted for all lease years
through 1996/1997. Thus, SEMINOLE CLUB does not owe any accrued
rent to the CITY and has a capital improvement carryover credit for lease
year 1997/1998;
c. The acts of SEMINOLE CLUB and the acts, omissions and acquiescence
of the CITY have modified and interpreted the lease to accept
SEMINOLE CLUB's annual capital improvement submittals for all lease
years through 1996/1997. Thus, SEMINOLE CLUB does not owe any
accrued rent to the CITY and has a capital improvement carryover credit
for lease year 1997/1998;
d. Since lease year 1992/1993, SEMINOLE has a capital improvement
carryover credit of $223,528 for the 1997/1998 lease year;
e. SEMINOLE CLUB's rights and interest in the lease remain in effect;
f. SEMINOLE CLUB is not liable for the CITY's reasonable attorney's fees,
expenses and other costs and damages in this action;
g. The CITY be ordered to pay $255,346 to SEMINOLE CLUB with pre-
judgment interest and SEMINOLE CLUB's costs incurred in this action;
h. The amount of disputed accrued rent, if any, owed to the CITY by
SEMINOLE CLUB; and
i. Such other and further relief as the court may deem just and equitable.
COUNT II
BREACH OF CONTRACT
30. SEMINOLE CLUB tealieges paragraphs 2 through 28.
31. This is an action for damages in excess of Fifteen Thousand and No/100 Dollars
($15,000.00), exclusive of cost, interest and attorney fees.
32. The lease is now in full force and effect between SEMINOLE CLUB and the
CITY. However, the CITY has improperly asserted that SEMINOLE CLUB has failed to fulfill a
term of the lease which is to pay alleged accrued rent totaling $255,346.00. Additionally, the
CITY has threatened SEMINOLE CLUB with termination of the lease and that SEMINOLE
CLUB will be responsible for the CITY's cost, reasonable attorney's fees and other expenses
and damages if SEMINOLE CLUB does not pay the CITY the disputed accrued rent of
$255,346.00.
33. SEMINOLE CLUB has been forced to pay to the CITY under protest the disputed
accrued rent of $255,346.00 to prevent the CITY from continuing to improperly allege
SEMINOLE CLUB's breach of the lease, the CITY's right to terminate the lease and
SEMINOLE CLUB's obligation to pay the CITY's cost, reasonable attorney's fees and other
expenses and damages.
34. SEMINOLE CLUB's payment of this disputed accrued rent in no way represents
a recognition or confirmation of any alleged debt due the CITY by SEMINOLE CLUB. This
payment under protest by SEMINOLE CLUB shall not act to toll the Statute of Limitations
and/or begin any limitation period running anew.
35. The CITY has demanded money neither legally due nor owing to the CITY which
has forced SEMINOLE CLUB to pay the disputed accrued rent under protest in order to prevent
the CITY from improperly asserting a right to terminate the lease and obligate SEMINOLE
CLUB to pay the CITY's cost, reasonable attorney's fees and other expenses and damages.
l0
The CITY has breached the lease by its improper demand for the alleged accrued rent, its
threat to terminate the lease and to obligate SEMINOLE CLUB to pay the CITY's cost,
reasonable attorney's fees and other expenses and damages.
36. SEMINOLE CLUB has satisfactorily performed its contractual obligations as
required by the lease.
37. SEMINOLE CLUB has incurred damages due to the breach of the lease by the
CITY in the principal sum of $255,346.00, which is the amount of disputed accrued rent paid to
the CITY under protest, and which sum is now due and owing to SEMINOLE CLUB plus interest
and cost.
WHEREFORE, SEMINOLE CLUB demands judgment against the CiTY for damages in
the principal sum of $255,346.00 plus interest and costs, and such other relief as may be just
and equitable.
DEMAND FOR JURY TRIAL
DEMAND FOR JURY TRIAL ON ALL ISSUES SO TRIABLE.
CHARLES R. HARRISON, Esquire
Florida Bar No. 0804460
1400 West Fairbanks Avenue, Suite 204
Winter Park, Florida 32789
Telephone: (407) 644-6445
Facsimile: (407)644-3080
Attorney for Plaintiff:
Seminole Club, Inc.
;ToD p~ogu~S ~ pe~euSTs~p ~IuounuoD s~ ~ ~e '~p~2oi~ '~unoD
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~nq suoss~I ~Io5 mo~ sp~eDo~d pu~ ~ua~d~n5~ 5u~IoB 'as~pu~D
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of improvements which become permanent in nature as compared to
those improvements which are required ohly to maintain repair
and condition; provided, however, the expenditures required
herein for re-working and renovation Of tees and greens shall
be considered as capital improvements. It is further agreed
that the above described sums may be carried over from year to
year, for example: if Lessee expends during one year the sum
of $25,000.00 in permanent' improvements and if under the above
described gross revenue formula $5,000.00 would be required
during such year, the remaining $20,000.00 would be carried
forward to .subsequent years and credited toward future required
expenditures under the above described formula.
3. CONDITIONS
This lease is made subject to the following terms,
conditions, covenants and restrictions hereby agreed upon by
and between the Lessor and the Lessee, to-wit:
(1) Lessee agrees during the___t. er~ of this lease
to maintain and operate the golf course on the above described
property as an eighteen hole golf course, aggregating 6,000
yards in length, with fairways of standard width, and clubhouse
and locker rooms as a country club. The annual maintenance
requirements for the golf course shall include as minimum
standards proper fertilization, watering, mowing and weed kill-
ing programs. The proposed annual maintenance program shall first
be submitted to the City Commission on an annual basis for
approval, rejection or modification. Once an annual maintenance
program is approved by the City, it shall be implemented by the
Lessee within the following twelve months.
(2) The Lessee has ~nspected the property hereby
leased and let and accepts the same in its condition as and of
the llth day of March, A.D., 1981.
(3) Taxes. The Lessee shall, in addition to the
rentals hereby reserved, pay or cause to be paid before they
become delinquent, all taxes, assessments and charges for water,
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sewage disposal, gas, clectricity, and any Other utilities and
any and all other impositions, general or special, ordinary or
extraordinary, of every kind and nature assessed, levied or im-
posed by any taxing authority upon said demised real property,
buildings or personal property, or any part thereof, or upon
any building or buildings from time to time hereafter erected
on said real property by the Lessee Or upon any personal property
hereby leased and let, or which may be levied, assessed, or im-
posed upon the int&rest of the Lessor in or under this lease
or upon its reversioAary estate in said premises, said Obligations
on the par~ of the Lessee to continue throughout the term of
this lease. The Lessee shall likewise pay before they become
delinquent any and all taxes that may be levied by any taxing
authority upon this lease or leasehold interest.
The Lessee shall deliver to the Lessor within (30)
thirty days after the payment of any taxes, assessments or other'
impositions, the receipts or duplicate copies thereof showing
payment thereof. Should the Lessee for any reason fail to pay
such taxes, assessments and impositions before they become de-
liquent and when and where the same shall become due, then the
Lessor shall have the right at its option and without waiving
its right to declare a forfeiture of this lease by re~kson of
such default, to pay the same together with such penalties as
may be accrued, and charge the same against the Lessee, where-
upon the same, together with all penalties and interest, shall
forthwith become due and payable by the Lessee to the Lessor,
with interest thereon.
(4) Assessments for Public Improvements. The
Lessee shall pay, before they become deliquent, any and all
assessments which may be made by the Lessor or its successor
or successors, or by any other authorized taxing body, for any
public improvements affecting the real property hereby leased
and let, and which are ordinarily assessable against real
property.
~4-
(5) Use and Care of Premises. The Lessee shall
not permit Or suffer the commission of waste Of the property
hereby leased and let, nor said premises or the buildings there-
on, to be used for any vicious, illegal or immoral purposes or
for any purpose that will substantially increase the rate of
insurance thereon, Or for any purpose in 'violation of state
Laws, or municipal ordinances, rules or regulations now or there-
after in force and applicable thereto; and the Lessee shall con-
form its operations and uses of the leased property with all
laws, ordinances, rules and regulations of the United States of
America, the State of Florida, and the Lessor and of all public
authorities, boards or officers relating to said premises, and
relating to health and safety and shall keep and maintain said
premises and buildings and ever~ part thereof and all sidewalks
and areas adjoining the same in a clean, safe, secure and whole-
some condition.
(6) Maintenance of Buildings. The Lessee shall
maintain at its own expense all of the aforesaid buildings and
additions thereto and fixtures therein, and at its Own expense
keep the same in a state Of sound condition and repair. This
provision shall likewise apply to any building or buildings that
may be constructed on the leased Fremises-
(7) New Buildings to Become Property of Lessor.
Any building or buildings erected on the leased premises and
all additions thereto and fixtures thereon shall be and become
a part of the land upon which erected, and shall not be removed
by the Lessee before or at the termination of this lease, by
lapse of time Or otherwise, except as provided in paragraph (8).
(8) Removal Of Buildings.- None Of the buildings
hereby leased and let or replacement Or replacements thereof or
additional building or buildings shall be removed by the Lessee
unless by reason of age the same shall become incapable of re-
pair; in which event the Lessee may, with the written approval of
Lessor, remove such building or buildings so incapable of being
repaired. In the event of the removal of any building or build-
ings by the Lessee the Lessee may erect at its own expense in
place thereof another building Or buildings, in value equal to
or greater than the building or buildings so removed. The plans
and specifications for any building or buildings proposed to be
erected by the Lessee shall be subject to the approval of the
Lessor. The Lessee shall, before commencing construction of any
new building, furnish and deliver to the Lessor a good and
sufficient bond of indemnity or other security acceptable to the
Lessor, to secure and safeguard said premises and the Lessor
against any and all liens, claims, levies, attachments, demands,
costs, expenses, loss or damage in relation thereto, and the
work and labor done thereon and the materials furnished there-
for and against all claims and ~emands or contractors, subcon-
tractors, laborers, materialmen and all other persons in respect
thereto. The Lessee sh~ll, in no event, have power, authority
or right hereunder to incur and create any obligation in such
respect to said premises, buildings, or improvements which shall
create or constitute a lien or claim in favor of Lessee or a
third party against the right, title and interest of the Lessor
in or to said premises, buildings or improvements which may now
or hereafter be erected thereon and notice of hereby given to
all persons furnishing labor or materials therefor that any
liens therefor shall attach only to the leasehold interest
hereunder and be subordinate to all Of the rights, title and
interest of the Lessor in and to said premises, buildings and
i~rovements under this lease. The materials of any building
removed hereunder shall be the property of the Lessor.
(9) Indemnity for Lessor and Others. The Lessee
shall keep the Lessor harmless and indemnified at all times
against any loss, cost, damage or expense by reason of any
accident, loss, casualty or damage to person or property sub-
stained by any Of Lessee's employees, patrons, guests or anyone
else while on or occupying any of the leased premises and while
using or Operating any of the leased personal property, and to
that end shall maintain at all times, in full force and effect,
insurance against liability for damage sustained by negligence
of the Lessee, their agents, servants, employees, or sub-tenants
or by reason of any accident, loss, casualty or damage resulting
to any person Or property through any use, misuse Or non-use Of
said premises or personal property or by reason of any act or
thing done or undone on, in or about said premises, or in relation
thereto.
(10) ~lterations, Fixtures, Etc. The Lessee shall
have the right, at their own expense, to make alterations, attach
fixtures and erect partitions and signs in and upon the buildings
hereby leased or any replacements or additional buildings on the
premises, subject to any and all'building restrictions now or
hereafter imposed by the City of Sanford and to inspection by the
Lessor or its duly constituted representatives; but Lessee~ if
required by the Lessor, shall upon the termination of this lease,
restore said premises to a condition equal to that existing at
the time of the Lessee's entering upon the same .under this lease,
reasonable and Ordinary wear and tear and damage by war, fire,
flood, windstorm or any of the other elements or by circumstances
over which the Lessee ha~ no control, excepted, except,however,
that if the Lessor requires such restoration, the Lessee shall be
given written notice by the Lessor at least thrity (30) days be-
fore the termination of this lease.
(11) Inspection of Property by Lessor. The Lessor
shall have the right to enter upon all of the real property
and buildings hereby leased and let, for the purpose Of inspect-
ing the property leased and let, to determine whether the terms
and conditions of this lease are being observed and carried out
by the Lessee, and for any other purpose necessary or proper for
the reasonable protection of Lessor's interest in said property.
(12) Reservations for Utility Purposes. The
Lessor hereby makes reservations of so much of the property
hereby leased and let as may be reasonably necessary for any
and all kind~ of utility servies and purposes, with the right
to enter upon any of said property ~or the installation, main-
tenance, repair, removal or transfer thereof, either to existing
buildings and installations of any hereafter placed upon any
part of the property herein demised.
(13) Damage by Fire or Elements. Lessor shall
carry such insurance against fire and/or windstorm covering the
buildings now or h~reafter existing on said demised property as
Lessor shall conside~ necessary, provided however, that Lessee
shall reimburse in full to Lessor any premium or charge paid
for such insurance not less than three (3) months after Lessor
shall have paid such premium or charge. There shall be no
liability On Lessor for restoration of any buildings on premises
hereby demised which are damaged or destroyed by causes not
covered by insurance carried by Lessor and the Lessor's lfabilit~
for damage or destruction insured against shall extend under the
conditions hereafter set forth only to the amount of the proceeds
of any insurance paid to Lessor on policies covering said pro-
perty. Any insurance proceeds paid to Lessor by reason of loss
as aforesaid shall be applied to restoration of the bnilding or
buildings damaged or destroyed, provided that Lessee ~hall pay
any additional amount required to effect such restoration to
substantially equal condition to that prior to such damage Or
destruction. Should Lessor and Lessee agree not to restore any
such building or should restoration not be substantially begun
within six months after the damage or destruction shall occur,
the Lessee may retain all insurance proceeds received by it to
be expended for any municipal purpose.
(14) Assignment of Lease, Subletting. The Lessee
shall not assign this lease nor sublet the premises or any part
thereof without the written consent of the Lessor. Lessee shall
exhibit this lease for examination by any prospective subtenant
before requesting such consent to sublease, and the rights of any
subtenants permitted by Lessor shall always be subject to and
subordinate to the rights, title and interst of the ~essor here-
under, and sub subletting shall not relieve the Lessor from its
responsibility to carry out the terms of this lease, and the
Lessor shall not be required to look to any sub-leasee Or sub-
tenant for the performance of any of the covenants required to
be performed by the L~ssee hereunder; and the Lessee shall con-
tinue to be bound by all of the terms, agreements and covenants
and conditions hereof.
(15) S~rvice of Notices. Whenever it shall become
necessary 6r desirable to serve notice upon one party by the
other, said notice shall be in writing or printing and may be
sent by registered mail with full postage prepaid to the last
known post Office address of the' then Lessor or Lessee who is
such of record; and notice to the then Lessor or Lessee of re-
cord shall, for all purposes, be deemed notice to each and.every-.
one of their predecessors in interest respectively, and to all
persons holding under or through them.
(16) Five Year Improvement Program. Lessee coven-
ants and agrees that during five years immediately succeeding
the execution of this instrument Lessee will make the following
improvements to the golf course:
FIVE YEAR PROGRAM FOR
MAYFAIR COUNTRY CLUB
I. STAFFING
A. pro-Manager-Golf Director
B. Assistant pro-Manager
C. Course Superintendent
D. Head professional
1. Pro-Staff
2. Teaching Staff
3. Carts
4. Starters & Rangers
E. Club House - Assistant pro-Manager
". II. COURSE MAINTENANCE:
A. Immediate adherence to a complete, consistent
and sound maintenance program.
1. Mowing Schedule
2. Watering schedule, according to need
V. EXPAND FOOD AND BEVERAGE PROGRAM
COST OF PLAN OVER AND ABOVE
NORMAL EXPENSES
Chemical Program $ 50,000.00
Renovation of Fairways, trees, ,.
Bunkers $ 50,000.00
Cart Path Construction $ 55,000.00
Lake Program $ 20,000.00
Irrigation Upgrade $ 30,000.00
Range Facilities $ 20,000.00
Clubhouse and Building $150,000.00
Parking Lot and Landscaping $ 50,000.00
Fencing $ 30,000.00
TOTAL $455,000.00
Yearly Average for five Years 91,000.00
Lessee further covenants and agrees to expend a
average of $91,000.00 annually during the five years immediately
succeeding the execution of this lease ~or the'programs outlined
in the preceding paragraph. It ~s expressl~ understood and
agreed between the parties that this sum is in addition to the
maintenance program identified in paragraph 3 (1) or any o~her
expenditures provided for elsewhere in this lease. It is agreed
between the parties that any expenditures herein shall be cumula-
tive and any amount spent in excess of the $91,000.00 minimum
shall be credited toward expenditures in subsequent years. It
is further agreed that sums spend for labor shall be considered
in computing the expenditures described above. The renovation
of the back nine holes shall be considered a priority item by
the parties and shall be completed by October 1, 1981.
(17) Statements as to Lessee's Receipts.
Lessee shall furnish to Lessor on or before thirty (30) days
after the end of each quarter during the entire term of this
lease, a statement of all gross revenues of the business Opera-
tions conducted by Lessee On the leased premises during such
preceding months, which statement shall show the actual amount
of gross revenue as herein defined and any other receipts from
sales or services for the preceding quarter and which shall be
broken down so as to show the gross revenues of each catagory
of operations, and shall be sworn to by an officer of Lessee
who of his Own knowledge knows the correctness of each statement.
(18) Auditor's Annual Certificate. Lessee shall
furnish Lessor within sixty(60) days after the expiration of
each lease year during the term of the lease, a complete state-
ment Of all gross revenues as herein defined from sales, services
rendered, and all other business Operations conducted on the
leased premises during the preceding lease year. Said statement
shall show all of the gross revenues of each catagory of opera-
tions, and shall be certified as acurate by a licensed, practic-
ing Certified Public'Accountant who does not hold any ownership
interest in the operation of said business.
(1~) Liability Insurance. Supplementing the insurance
indemnification provision of this lease, Lessee agrees to carry
a policy Of public liability and property damage insurance in
which the limits Of liability sh&ll not be less that $500,000.00
per person, and $1,000,000.00 for each accident Or occurance for
bodily injury, and $50,000.00 for property damage. Said poticy
shall name Lessor as co-insured and shall be insured by such
companies as are first approved and acceptable to Lessor.
(20) Restrictions Against Removal of Trees or
Subletting.
During the remaining' term of said lease Lessee is prohibited,
without the written consent of Lessor, from cutting or removing
any timber or trees, except dead trees, upon the demised premises,
and is further prohibited from subleasing any of the areas not
now presently occupied by fairways, greens, or building struc-
tures.
(21) Use By Local Residents. The Lessee shall at
all times permit the use thereof by local residents and their
guests On a membership basis and daily green fee basis comparable
to average membership fees and daily grE:en fees charged by
public and private golf courses in the surrounding
territory of a radius of fifty miles.
(22) Contingencies Constituting a Breach Hereof. '
In the event any levy, lien or attachment shall be made against
the interest of the Lessee or if any other proceedings at law
Or in equity be instituted to subject said premises Or any part
thereof to the payment of any claim, debt, liability Or damages
of or against the Lessee, or the Lessee shall become insolvent
or bankrupt, Or if proceedings for the receivership Or bankruptcy
shall be instituted against them, or ~[ they shall make an assign-
ment for the benefit of creditors, or if they in any manner seek,
permit, Or suffer the fee Or the leasehold interest hereby created
to be transferred, or encumbered by operation of law, or other-
wise jeopardized, hypothecated, or encumbered, except for such
transfers as may be authorized under Section 2 of this lease, then
and in any such event, or in the event of the same or similar
legal or equitable consequence or effect, such event shall Le
deemed to constitute a breach of this lease, at the option of
the Lessor so as to terminate all rights, privileges, and interest
of Lessee herein and hereunder, unless however, the Lessee shall,
without the necessity of demand or notice from the Lessor obtain
and procure within thirty (30) days after the same shall have
been done, instituted, filed, or mede or asserted, a discharge,
release, cancellation Or withdrawal thereof, or within like
period bond the same off f~om said premises and leasehold interest
and relieve said leasehold interest and the Lessor's interest
herein and in said premises therefrom. The failure of the Lessee
to pay any of the rentals, taxes, or any Of the other sums in
the manner and time hereinbefore provided, and the continuance
of such failure for a period of thirty (30) days, or to keep,
fulfill or perform any of the other terms, provisions, agree-
ments, covenants and conditions herein contained, on their part
to be kept, fulfilled and performed, and the continuance of such
failure for a period of sixty (60) days after notice in writing
from the Lessor to Lessee of such failure, shall likewise con-
szitute a breach of this lease, at the option of the Lessor, so
as to terminate all rights, privileges and interest of the Lessor,
herein and hereunder. In the event of a breach of this lease,
the Lessee shall and will pay to the Lessor all costs, reasonable
attorney's fees, and other expenses which may be incurred by the
Lessor in enforcinE their rights hereunder and also such other
actual damages as the Lessor may actually sustain by reason of
said breach or default. Waiver of one or more defaults by the
Lessee hereunder shall not constitute a waiver of any other
subsequent defaults.
IN WIT~ESS WHEREOF, the Lessor has caused these
presents to be executed in its name by its Mayor, and attested
and its corporate seal hereunto. affixed by its City Clerk, and
the Lessee have hereunto affixed their hands and seals, the
day and year first above written.
Signed, Sealed and Delivered C~yo~rO~ FLORIDA
in the presence of:
Lessor
~~ ~~ SEbTINOLE INC
STE~~STI.~.O'~r..'V/Cr'NTO:SE COLBERT. WI:KIGI..I.a_"~ a, S~4..'~fO2,L.S.P. A.
Feb~26, 1998 ~'" ~F~r~Cc ~
Io~ E D~ds, eresidem via TE~
Seminole Clubs, ~c. ~/a ~ Coun~ Ciub (46~ 3~-~7~9
Posz ~ce Drawer 9~739 and U- S.
Lake M~, ~ 32795-0739
Dc~ ~r. D~els:
The undcrs~gncd re~resenta ~e C~ ofS~ord. Pursuan~ ~o S~on 22 ok'the L~e ~xed M~ch
l ~= [gSl by ~d betwe~ ~e Ci~ of Sanford ~d S~nole Club, Inc., riodee is provided
Sc~note Club, Inc. ~ ~ ro ~61 a te~ of~e L~e. Th~ breach ofzhe L~ is ?~lure by the
Lc~c~ :u pay rent ~ r~qu[;~ under p~a~ph ~ of the Le~e. The ~cunt of acc~ed rein
~s $2~Sfi~.~D. The breach ~cludes c]~m{n~ ~ ~ovements i~cms which were no~ a~ual]y capital
knpruvemm~ ~ de~n~ ~ ~e L~, ~ well ~ d~ ~k for ~penses w~ch do not ~1 under
~6 catego~ of "c~pi~ lmprovem~ts", ~ decried ~n p~a~ph 2.
Undo' S~on ~2, S~ol~ CI~. ~c h~ ~ (60) da~ :o ~re ~he breach or ~ of Se~ncle Club,
Inc.'s d~t% pd~ ~d ~t~ts ~ be t~inat~ ~d S~nole Club, Inc. ~1 be obligated for
costs. auom~s f~s ~ o~er expenses ~cu~ed by xh~ Ci~ in e~or~8 ks dShts under ~he Le~e.
Should you have ~y qu~dons r~SardinS ~s mac:r, piece fee! ~ to co~ t~e undersigned.
wc do n~t h~ ~. you ~in ~ (dO) day~ we ~ll ~c approp~e ac~on ~ e~orce our
leg~
Sincerely,
STE~STKOM, Mc~TOSH, COLBEKT,
co: W~5~ A. S~ons, City
~]]tiam L. Colbe~
CAPITAL IMPROVEMENT CARRYOVER
Seminole Club's
5% of Submitted Capital Lease Payment Carryover
Lease Years Gross Revenues Iml~rovements Credit (Deficit~ Credit (Deficit~
1992-1993 $ 49,359 $ 80,590 $ 31,231 $ 31,231
1993-1994 44,032 85,460 41,428 72,659
1994-1995 47,119 36,272 (10,847) 61,812
1995-1996 50,726 61,581 10,855 72,667
1996-1997 52,718 68,607+134,972 150,861 223,528
Exhibit "C"
COU RY ?L B
TO: City of Sanford
C/O Larry Dale, Mayor
City Halt
300 N. Park Avenue
Sanford, Florida 32772
VIA; HAND DELIVERY
RE: Lease with City of Sanford,
Dispute Co~g A]leged Accrued Rent
Dear M~yor Dale:
As you are aw~tre, Seminole Club Inc. ("Seminole Club") disputes that it owes
$255,346.00 in accrued rent to the City of Sm~ford (the "City") as demanded in the February 26,
1998 letter from Catherine D. Reischraarm, E~.
Seminole Club disputes that it owes any of tills alleged accrued rent m~t Seminole Club
~erts that the five year statute of limitations, Section 95.11 of the Florida Statutes, prevents the
City from enforcir~ any claim for accrued rent ari~,~ prior to lease year 1992-1993. Further,
Seminole Club asserts that the City is estopped and/or has waived its right to dispute the capital
improvements which Seminole Club submitted for all prior lease years through 1996~1997.
Additionally, the acts of Seminole Club and the acts and omissions of the City have modified and
interpreted the lease to accept Seminole Club's amw~l capital improvement ~bmittais for ~H prior
lease years through 199~-1997. Finally, Seminole Club does not owe accrued rent, but ~stead,
has a capit~l improvement carryover ~redi~ for the 1997-1998 lease year.
Enclosed is a cashier's check from Seminole Club payable to the City of Sanford in the
amount of $255,3~.00. Seminole Club is paying tl~is disputed amount under protest and by this
payment in no way waives the five ye~tr statute of limitations or any of its other legal rights ~d
positions. Seminole Club's payment of this disputed rent in no way repr~ents a recognition or
confirmation of any alleged debt due the City by Seminole Club. This payment, under protest by
Seminole Club, shall no~ act to toll the Statute of Limitations and/or begin the Statute of
Limitations period rtmning anew. Further, Seminole Club asserts that it is raak~g the disputed
payment under protest to the City to prevent the City from terminating the Lea~ and attempting
to collect the Ci~s attotney's fees and cost~ in the legal action between the City and Seminole
P.O. DRAWER 950789 · LAKE MARY, FLORIDA, 32795..0789 u 407-322-2531 * FAX 323-2759 ~,~..~(~;t~;+ ,tO, I
Re: Lease with City of Sanford; Dispute Concerning Alleged Accrued Rent (Cont'd) Page 2
Club wherein Seminole Club is asserting all of its legal rights including requiting the City to repay
this money, with interest, to Seminole Club.
J~resident '
Encl: Cashier's Check for $255,346.00
p.o. William L. Colbert, Esq.
JKD:avp