TWO YEAR LEASE AGREEMENT (2)LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this ,?_ of.nSV_C;?2009, by and between
the CITY OF CLEARWATER, FLORIDA, a municipal corporation, hereinafter referred to as "Lessor", and,
Thomas C. Wolkowsky and Patricia A. Wolkowsky, d/b/a Marina Restaurant, 25 Causeway Boulevard,
Clearwater, Florida 33767, hereinafter referred to as "Lessee."
WITNESSETH:
That in consideration of the covenants herein contained of the granting of this lease and the sums paid
and to be paid hereunder, the Lessor hereby leases to the Lessee and the Lessee hereby leases from the Lessor
according to the terms, conditions and covenants herein contained the following described premises in the City
of Clearwater, Pinellas County, Florida, to wit:
See attached Exhibit "A."
THE PARTIES HERETO HEREBY COVENANT AND AGREE AS FOLLOWS:
1. The term of this lease shall be for two (2), one-year lease renewals beginning October 1, 2009, and
ending September 30, 2011. The Lessor retains the right to terminate this lease for any municipal purpose
consistent with the Lessor's charter, as well as failure to pay rent in a timely manner or change in use of the
property. In addition, Lessor may terminate this lease if the State of Florida or any of its agencies or political
subdivisions thereof acquires the demised property or any portion thereof for a public purpose. This right of
termination is in addition to the right of termination set out in paragraph 14 of this Agreement.
2. The Lessee hereby covenants and agrees to pay rental thereof as follows:
a. To pay the total sum of $47,896.35 for the twenty- four month term of this lease, which shall
be paid in equal monthly payments of $1,922.92 plus tax through December 31, 2009, $1,980.61 plus tax per
month January 1, 2010 through December 31, 2010, and $2,040.03 plus tax per month January 1, 2011 through
December 31, 2011. Each monthly payment shall be due and payable on the first day of the month, and shall
be delinquent if not paid on or before the fifth day of the month. Rental rates include a flat 3% consumer price
index (CPI) increase added to the rent payment on January 1 st of each year of the lease. In addition to the
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monthly rental, the Lessee shall, at the end of each lease year pay an additional amount equal to five (5) percent
of yearly gross sales exceeding $500,000.00 throughout the term, of this lease. This payment will be made along
with the Lessee's payment of the monthly rental the first month of each lease year. The Lessee will provide the
Lessor within 30 days after the end of each year during the term of this lease a statement showing the amount of
gross sales during each month, as well as a signed copy of the front and back of the Florida Department of
Revenue Sales and Use Tax Return. The statement used by the Lessee to report such sales will be in a form
satisfactory to the City Manager or his designee, showing the amount of gross sales for the month being
reported and the amount of year-to-date gross sales for the lease year. The term "gross sales" as used in this
paragraph means the entire amount of actual sales receipts, whether for cash or otherwise, for all sales
conducted in, on or from the premises. No deduction shall be allowed for uncollected or uncollectible credit
accounts. Such term shall not include, however, any sums collected and paid out for any sales or excise tax
imposed by a governmental authority wherein Lessee is regarded as the collecting agent.
b. Any amount due from Lessee to Lessor under this lease which is not paid before the day the
payment becomes delinquent shall bear interest at the rate of fourteen (14%) percent per anum from date due
until paid, plus a late charge of Ten Dollars ($10.00) to cover Lessor's expenses in collecting such delinquency.
c. In addition to the first month's rent of $1,922.92 plus tax, which is held by the city, the
Lessee shall pay an additional $101.70 in advance as a deposit to secure the faithful performance of the Lessee's
obligations hereunder. The Lessor may deduct from the deposit any amount, which might become due from
the Lessee to the Lessor for damage to the premises or for any reason or cause whatsoever except rent. At the
end of the term of this lease, the deposit amount or the balance thereof, if any, shall be credited to Lessee's last
monthly rental payment.
d. If Lessor defaults in the payment of any installment of rent, Thomas C. Wolkowsky and
Patricia A. Wolkowsky, being the owners respectively, as Guarantor under the Guaranty of Payment of Rent
Under Lease Agreement (Exhibit "C", attached hereto and incorporated herein), shall pay the amount of such
installment within 30 days after receipt of notice of default and demand for payment as provided for therein.
3. The demised premises shall be used only for the purpose of conducting therein the business of a full
service restaurant.
4. The Lessee hereby covenants and agrees to make no unlawful, improper, or offensive use of the
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leased premises. Lessee further covenants and agrees not to assign, mortgage, pledge, hypothecate or sublet this
lease or any of its right herein in whole or in part without the prior written consent of Lessor. The consent of
Lessor to any assignment, mortgaging, pledging, hypothecating or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment, mortgage, pledging, hypothecating or subletting. If
this lease is assigned, or if the premises or any part thereof are sublet or occupied by anybody other than Lessee,
Lessor may collect rent from the assignee, sub-tenant or occupant, and apply the net amount collected to the
rent herein required, but no such occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, sub-tenant or occupant as tenant, or a release of Lessee from the further
performance by Lessee of covenants on the part of Lessee herein contained. If at any time during the term of
this lease, any part or all of the corporate shares of Lessee shall be transferred by sale, assignment, bequest,
inheritance, operation of law or other disposition so as to result in a change in the present effective voting
control of Lessee by the person, persons or entity which presently is the ultimate owner of a majority of such
corporate shares on the date of this lease, Lessee shall promptly notify Lessor in writing of such change. If the
new owner is a private or public corporation, Lessor shall promptly advise Lessee if it has any objections thereto
and the reasons therefor. Lessor may terminate this lease any time after such change in control by giving Lessee
thirty (30) days prior written notice of such termination. Lessee shall not permit any business to be operated in
or from the premises by any concessionaire or Licensee.
5. Lessee agrees that it will promptly pay all ad valorem real property taxes and personal property taxes
that may be assessed and filed against the demised property or the leasehold created by this agreement, or both,
during the term of this lease. Lessee further agrees that it will pay any state sales tax due on the rental payment
made by the Lessee to the Lessor and that it will pay all other taxes and fees, including, but not limited to,
occupational license, beverage license, and permits relating the operation of the business conducted on die
demised premises, which are required by law. Nothing herein shall obligate Lessee to pay or to reimburse
Lessor for the payment of assessments for permanent improvements, including but not limited to sidewalks,
sewers, and streets, that would benefit the demised premises.
6. The Lessee hereby covenants and agrees to pay all bills for electrical service to the premises when
due, which service shall be provided by Progress Energy Corporation, in accordance with the company's rates
and billing. At no expense to the Lessee, the Lessor agrees to furnish a refuse disposal location and a refuse
disposal container located outside the demised premises for the use of the Lessee.
7. The Lessee further covenants and agrees to operate the business authorized to be conducted on the
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premises three hundred sixty five (365) days a year during the term of this lease, except for any period of time
involved in natural disasters, including governmental orders or requirements such as evacuation for hurricane
preparations, and any time necessary to repair or replace any damage caused to the demised premises by as
natural disaster and two weeks vacation each year.
8. The Lessee assumes full responsibility for and covenants and agrees to save harmless and indemnify
the Lessor from any and all liability for damage to property and injury to persons resulting from or in
connection with the Lessee's use and occupancy of the demised premises under this lease. In addition, during
the term of the lease, Lessee shall at Lessee's expense obtain and maintain insurance coverage conforming to the
requirements in Exhibit "B" attached hereto.
9. If at any time during the term of this lease, the building or premises or any part, system or
component hereof (hereinafter, the "demised premises") shall be damaged or destroyed to the extent that the
Lessee cannot operate the business authorized to be conducted thereon, and the Lessor determines that said
demised premises can be restored by making appropriate repairs, the monthly rent as provided for in paragraph
2a above shall abate until the demised premises have been restored or until commencement of business by the
Lessee, whichever is sooner.
If the demised premises shall be totally destroyed or so damaged as to render it practically useless during the
term of this lease, then and in that event, the Lessee or Lessor may terminate this lease as of the date of such
damage or upon thirty (30) days written notice to the other party to this lease.
In the event of damage or destruction as enumerated above, and except as otherwise specifically provided
under this agreement, both parties waive any and all rights of recovery against the other party for any direct or
indirect loss occurring to the demised premises or as a result of damage or destruction of the demised premises.
In the case of demolition and reconstruction of the Marina or major renovation by construction, the Lessee
shall be given the first opportunity to bid for similar space, provided that space for Lessee's type of business is
allocated therein.
10. Except as otherwise provided herein, upon the happening of any one or more of the following
events ("Events of Default"):
a. Lessee's default in the payment of any rental or other sums due for a period of five (5) days
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after the due date;
b. Lessee's continued default with respect to any other covenant of this lease for a period of
fifteen (15) days after receipt of written notice of such default by Lessee from Lessor, provided that if such
default reasonably requires more than fifteen (15) days to cure, there shall be no Event or Default if Lessee has
commenced curative action with the fifteen (15) day period and diligently prosecutes such action to completion;
c. There shall be filed by or against Lessee in any court pursuant to any statute either of the
United States or of any state, a petition in bankruptcy or insolvency or for reorganization or arrangement, or for
the appointment of a receiver or trustee of all or a portion of Lessee's property, or if Lessee makes an
assignment for the benefit of creditors or if there is an assignment by operation of law, or if Lessee makes
application to Lessee's creditors to settle or compound or extend the time for payment of Lessee's obligations,
or if execution, seizure or attachment shall be levied upon any of Lessee's; property or the premises are taken or
occupied or attempted to be taken or occupied by someone other than Lessee; however, in the event of
execution, seizure or attachment, Lessee may post a bond satisfactory to Lessor which bond shall stay the
default resulting from any execution, levy, seizure or attachment for a period of 120 days. Failure to remove the
levy, seizure or attachment within the 120 day period shall constitute an Event or Default, and the bond posted
shall be forfeited; or
d. Lessee's vacating or abandoning the premises for more than ten (10) days; then Lessor, at its
option, may exercise any one or more of the following remedies which shall be cumulative;
(1) Terminate Lessee's right to possession under this lease and re-enter and take
possession of the premises, and re-let or attempt to re-let the premises on behalf of Lessee; however, such re-
letting or attempt to re-let shall only involve a prospective tenant capable of providing comparable or better
type service, at such rent and under such terms and conditions as Lessor may deem best under the
circumstances for the purpose of reducing Lessee's liability, and Lessor shall not be deemed to have thereby
accepted a surrender of the premises, and Lessee shallremain liable for all rents and additional rents due under
this lease and for all damages suffered by Lessor because of Lessee's breach of any of the covenants of this
lease. Said damages shall include, but not be limited to, charges for removal and storage of Lessee's property,
remodeling and repairs, leasing, commissions and legal fees. In addition to its remedies hereunder, Lessor may
accelerate all fixed rentals due under this lease, in which event the Lessee shall be liable for all past due rent,
accelerated rent and damages as described above; however, with respect to the accelerated rent, Lessor shall
Wolkowsky lease for Marina Restaurant Page 5
receive only the present value of such accelerated rent. At any time during repossession and re-letting pursuant
to this subsection, Lessor may by delivering written notice to Lessee, elect to exercise its option under the
following subparagraph to accept a surrender of the premises, terminate and cancel this lease, and retake
possession and occupancy of the premise on behalf of Lessor.
(2) Declare this lease to be terminated, whereupon the term hereby granted and all rights,
title and interest of Lessee in the premises shall end and Lessor may re-enter upon and take possession of the
premises. Such termination shall be without prejudice to Lessor's right to collect from Lessee any rental or
additional rental which has accrued prior to such termination together with all damages, including, but not
limited to, the damages specified in subparagraph (1) of this paragraph which are suffered by Lessor because of
Lessee's breach of any covenant under this lease.
(3) Exercise any and all rights and privileges that Lessor may have under the laws of the
State of Florida and the United States of America.
11. The Lessee hereby covenants and agrees to keep and maintain the premises and fixtures located
herein in good condition and repair during the term of this lease and any extension hereof, and to return the
premises to the Lessor upon the expiration of the term hereof in as good condition as they now are, ordinary
wear and tear and damage by the elements only excepted. No alteration or improvements may be made to the
premises without the written consent of the Lessor. Any and all fixtures attached to the premises shall revert
absolutely and become the property of the Lessor upon the expiration of the term hereof; provided, however,
that the Lessor at its option may require the Lessee to remove all fixtures, partitions, racks, shelves or other
improvements from the premises upon the expiration of the term of the lease at the cost of the Lessee. Any
damage to the premises occasioned by said removal shall be repaired at the Lessee's expense.
12. The Lessee, at its own cost, may place only window, wall or canopy signs on the demised premises,
provided said signs are approved as to color, style and letter size by the Marine & Aviation Director-of the
Lessor, and additionally conform to the sign ordinance of Lessor presently in force or as may be amended from
time to time during the term of the lease. No other signs shall be placed or maintained by the Lessee on the
premises. Any nonconforming sign now on the premises shall be removed by the Lessee within 30 days of
approval of the lease. The Lessee shall, upon expiration or termination of the lease, completely remove any and
all signs that have been placed on the leased premises by the Lessee.
Wolkowsky lease for Marina Restaurant Page 6
13. If at any time during the term of the lease the Lessee is authorized to make improvements to the
demised premises, Lessee agrees in such event to indemnify and save harmless the Lessor as follows:
a. For any mechanic's lien which may be asserted as a claim against the leased property; and
b. For the faithful performance of the covenants contained in paragraph 11 above; and
c. To obtain from the contractor a good and sufficient performance and payment bond signed
by a reputable insurance company doing business in Florida, which bond shall be in an amount equal to one
hundred (100%) percent of the cost of construction of the contemplated improvements to the demised
premises, guaranteeing that the improvements will be completed and that subcontractors, laborers and
materialmen will be paid in accordance with the contract for the improvements.
14. In the event of the acquisition of this property or any portion thereof by exercise of proper
authority, by any governmental agency other than Lessor, whether by eminent domain or otherwise, it is
understood and agreed that notification of the institution of such action shall be promptly given Lessee, so the
Lessee may intervene in such action as a party. Lessee agrees to comply with the results of any such actions,
and agrees to release and hold the lessor harmless from any damages resulting thereof.
15. Lessor covenants and agrees that upon payment by lessee of the rents herein provided, and upon
observance and performance by Lessee of all the covenants, terms and conditions required of the Lessee by the
lease, Lessee shall peaceably and quietly hold and enjoy the leased premises for the term of the lease without
hindrance or interruption by Lessor.
16. Notices hereunder shall be given only by registered or certified mail, and shall be deemed given
when the letter is deposited in the mail, postage and other charges prepaid, addressed to the party for whom
intended at such party's address first herein specified or to such other address as may be substituted therefor by
proper notice hereunder. Lessor's notices shall be directed in care of its Law Department at the above-cited
address.
17. As required by Section 404.056(8), Florida Statutes, the Lessee shall take notice of the following:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of
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radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health unit.
18. The undersigned shall personally guarantee to Lessor the timely performance of all covenants and
provisions of this Lease Agreement, including, but not limited to the timely payment of all rent due hereunder.
19. The Lessee will install and maintain a commercial media air cleaner, with absorber kit, to remove
smoke from the space. This unit will be operated at all times the restaurant is open for business.
20. This lease agreement constitutes the entire contract between Lessor and Lessee concerning the
leasing of the premises and consideration thereof.
21. In the event either party seeks to enforce this agreement or interpret any provision thereof by law,
or through attorneys at law, each party agrees to pay for its own attorney's fees and costs, and that jurisdiction
shall be in a court of competent jurisdiction in Pinellas County, Florida. z
IN ITNESS WHEREOF, the parties hereto have set their hands and seals this,,k2r day of
Countersigned:
?, - I-- - -, - ? #i4; ? ? -
Camilo Soto
Assistant City Attorney
City of Clearwater, Florida
By: 7rp? ?- _William B Horne, II
City Manager
Attest:
thia E.
Clerk
By: J C
as C. Wolkowsky
C cL_ 2V--?
Patricia A. Wolkowsky
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r
Exhibit "A"
LEGAL DESCRIPTION
Marina Restaurant space, Clearwater Marina Building, located on Lots 11 and 12 of City Park Subdivision,
according to the map or plat thereof as recorded in Plat Book 23, page 37 of the public records of Pinellas
County, Florida.
Exhibit "B"
INSURANCE REQUIREMENTS
Insurance
Lessee shall procure at its expense and maintain during the term of this Agreement, insurance as shown below:
a. Commercial General Liability insurance to include premises/operator liability in an amount not less
than $1,000,000 combined single limit Bodily Injury Liability and Property Damage Liability.
b. Comprehensive Plate Glass Insurance on a replacement cost basis covering loss or damage by any
means, except by fire, or war, whether declared or not, to the plate glass windows in the demised
premises.
c. Worker's Compensation Insurance applicable to its employees in an amount at least equal to the
statutory limits of coverage according to applicable State and Federal laws. In addition, the policy shall
include employer's liability coverage with a limit of $500,000 per occurrence.
d. Coverage for liability resulting from the dispensing of alcoholic beverages in an amount not less than
$500,000.
The City is to be specifically included as an additional insured on all liability coverage described above.
Notice of Cancellation or Restriction - All policies of insurance must be endorsed to provide the City with thirty
(30) days notice of cancellation or restriction.
Certified Copies of Policies/Certificate of Insurance. Upon specific written request of the City, the Lessee shall
provide the Lessor with certified copies of all policies of insurance as required above. In the absence of a
specific written request, the Lessee shall provide the Lessor with Certificates of Insurance showing the Lessee
has, at all times the insurance coverage required by the Lease. Unless notice is given to Lessee otherwise, such
Certificates of Insurance shall be provided to the Marine & Aviation Director. The first Certificate of Insurance
required by the lease shall be provided to the Marine & Aviation Director before occupancy of the demised
premises by the Lessee.
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Exhibit "C"
GUARANTY OF PAYMENT OF RENT UNDER LEASE AGREEMENT
Guaranty is made this day of 2009, by Thomas C. Wolkowsky and Patricia
A. Wolkowsky of Marina Restaurant, City of Clearwater, County of Pinellas, State of Florida, herein referred to
as "Personal Guarantors: being the owners respectively, of the Marina Restaurant, herein referred to as
"Obligor: to CITY OF CLEARWATER, C/O City Attorney, P.O. Box 4748, Clearwater, Florida 33758, herein
referred to as "Obligee".
RECITALS'
1. Obligee has leased premises at 25 Causeway Blvd. to Obligor, whose business address is 25 Causeway Blvd.,
City of Clearwater, County of Pinellas, State of Florida, for use by Obligor in conducting its business of a
restaurant.
2. The lease is conditioned upon guarantors giving security for payment of rent thereunder in the form of a
personal guaranty.
SECTION ONE
STATEMENT OF GUARANTY
Guarantors guarantee payment of rent under the attached lease agreement pursuant to the terms
thereof. If obligor defaults in the payment of any installment of rent, guarantors shall pay the amount of such
installment within 30 days after receipt of notice of default and demand for payment. Guarantor's liability
hereunder shall not be affected by reason of any extension of time for payment of any installment granted by
obligee to obligor.
SECTION TWO
DURATION
This guaranty shall not be revoked during the twenty-four month term of the lease. Thereafter, if the
lease is renewed on the same terms, this guaranty shall remain in force until receipt by obligee of written notice
of revocation from guarantors, or until terminated pursuant to Section Three hereof. Renewal of the lease on
different terms shall, at the option of the guarantors, operate to terminate this guaranty as of the end of the
twenty-four month period.
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I
SECTION THREE
LIMITATION OF LIABILITY
The maximum amount recoverable by obligee from guarantors pursuant to this guarantee is $23,594.25,
which amount is equal to the total :tent due during the initial twelve month term of the lease. If the aggregate of
payments made by guarantors hereunder reaches the above-mentioned amount, this guaranty shall terminate
immediately.
SECTION FOUR
WAIVER OF NOTICE OF ACCEPTANCE
Notice of acceptance of this guaranty is expressly waived.
IN WITNESS WHEREOF, guarantors have executed this guaranty at Z' uA ?'A , 102) [r)' .
the day and year first above written.
Guarantor - Thomas C. Wolkow
Gc? ?lI
Guarantor - Patricia A. WolkoWL7
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