ONE YEAR NINE MONTH LEASE AGREEMENT
-"_:.....,----- ~
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this /0"""'" of ~, 2007, by
and between the CITY OF CLEARWATER, FLORIDA, a municipal corpo~tion, Jereinafter
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."
WITNE SSET H:
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 one (1) year nine (9) months beginning January 1,2008,
and ending September 30, 2009. 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 $38,385.27 for the twenty-one month term of this lease,
which shall be paid in equal monthly payments of $1,827.87. 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. Also, a consumer price index (CPI) increase will be added to the rent payment on
January 1 st of each year of the lease. In addition to the monthly rental, the Lessee shall, at the end
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"
of each lease year pay an additional amount equal to ten (10) percent of yearly gross sales exceeding
$200,000.00 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 ofTen Dollars ($10.00) to cover Lessor's expenses
in collecting such delinquency.
c. In addition to the fIrst month's rent of $1,827.87, which is held by the city, the
Lessee shall pay an additional $625.12 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.
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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 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
presendy is the ultimate owner of a majority of such corporate shares on the date of this lease,
Lessee shall prompdy notify Lessor in writing of such change. If the new owner is a private or
public corporation, Lessor shall prompdy 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.
s. Lessee agrees that it will prompdy pay all ad valorem real property taxes and personal
property taxes that may be assessed and flied 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 the demised premises, which are
required by law. Nothing herein shall obligate Lessee to payor to reimburse Lessor for the payment
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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 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.
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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 anyone 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 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
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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 anyone 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 shall
remain 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 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.
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(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
Harbormaster of the Lessor, and additionally conform to the sign ordinance of Lessor presendy 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.
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
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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
promprly 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 quierly 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 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
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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 jw:isdiction shall be in a court of competent jurisdiction in Pinellas County, Florida.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this 10'44- day
Of~c...-.. , 2007.
I
Counte"igned ~
~ By:
~nk Hibbard <
Mayo
~F10rida
. J 'i3~ ~ -n:.
William B Horne, II
City Manager
Camilo Soto
Assistant City Attorney
By:
. a E. Goudeau
tlk ~
ll!'t 4 j cUR l>l:J:t"
GJ~:~o:~d ~
Patricia A. W olkowsky
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L ' ..
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
1. Liability Insurance. Lessee shall maintain:
a. Comprehensive General Liability insurance to include premises/ operator liability and
electrical 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 for statutory coverage
limits in compliance with Florida laws.
d. Coverage for liability resulting from the dispensing of alcoholic beverages in an amount
not less than $500,000.
2. Additional Insurance. The City is to be specifically included as an additional insured on all
liability coverage described above.
3. 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.
4. 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 Harbormaster before occupancy of the demised premises by the Lessee.
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~ . I .
Exhibit" C"
GUARANTI OF PAYMENT OF RENT UNDER LEASE AGREEMENT
Guaranty is made this _ day of ,2007, by Thomas C. Wolkowsky
and Patricia A. W olkowsky 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 CITI 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 Obligot 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 GUARANTI
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-one 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-one 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
$38,385.27, which amount is equal to the total rent due during the initial twenty-one 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.
J IN %TNESS WHEREOF, guarantors have executed this guaranty at
J ~ d( 0 0 7 the day and year first above written.
I /
Guarantor - Thomas C. Wolkowsky
u~~
Guarantor - Patricia A. Wolk
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