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Item C12
BOARD OF COUNTY COMMISSIONERS C ounty of M onroe A(I Mayor George Neugent, District 2 T he Fl orida Keys 4� �� m Mayor Pro Tem David Rice, District 4 l Danny L. Kolhage, District 1 „ Y „; ° W Heather Carruthers, District 3 Sylvia J. Murphy, District 5 County Commission Meeting June 21, 2017 Agenda Item Number: C.12 Agenda Item Summary #3026 BULK ITEM: Yes DEPARTMENT: Project Management / Facilities TIME APPROXIMATE: STAFF CONTACT: Alice Steryou (305) 292 -4549 None AGENDA ITEM WORDING: Approval of seventh amendment to lease agreement with Tropical Watersports. LLC., a water sports equipment rental vendor on Higgs Beach, to replace existing concession huts and storage box trailer in designated parking area with a 20' x 8' "Tiny House” style trailer licensed, registered, and in a road ready condition to be placed on existing concrete pad. ITEM BACKGROUND: On May 11, 2017, Tropical Watersports proposed a new but to replace the two currently in use as well as the box trailer in the parking lot. The 20' x 8 ' tiny house will be similar to the attached photo shown in the proposal, but with more subtle Key West colors. It will be a registered trailer to comply with FEMA requirements, and will replace the three current trailers. The footprint will be reduced because the new trailer replaces the three currently in use and opens up the current occupied space in the parking lot. PREVIOUS RELEVANT BOCC ACTION: On April 15 2009, the BOCC approved the Lease Agreement with Tropical Watersports, LLC. On October 21, 2009, the BOCC approved an amendment to the Lease Agreement to provide additional booth areas. On January 20, 2012, the BOCC approved a Second Amendment to the Lease Agreement to reduce the lease area and booths and amend the rental and fees adjusted in an amount equal to the CPI -U for the preceding 12 months and extend the Term of the Lease Agreement to 6 years with one additional (3) year period optional renewal. On March 18, 2015, the BOCC approved a Third Amendment to the Lease Agreement to extend the Lease Agreement for three (3) years with a CPI -U of .8% as of December 31, 2014. On March 23, 2016, the BOCC approved the Fourth Amendment to Lease Agreement to adjust for the CPI -U for the prior 12 months ending December 2015 of .7 %. On September 21, 2016, the BOCC approved to transfer 115 square feet of storage from Tropical Watersports to 1000 Atlantic Boulevard, LLC a/k/a Salute Restaurant. On October 19, 2016, the BOCC approved a Fifth Amendment Agreement to reduce the Lessee's leasehold area by discontinuing the use of Area 3, ( "Concessions Storage ") and Area 2, ( "Sailboat Storage Area "), as depicted on Exhibit "A" dated September 27, 2011, and increase the Lessee's leasehold area by designating an area for the parking of a road ready mobile storage container ( "Mobile Storage Trailer"), in the Higgs Beach parking area, as depicted on Exhibit "B" as Area 2, ( "Concession Storage Trailer "); and Lessee agrees to keep the Mobile Storage Trailer licensed, registered, and in a road ready condition. On March 15, 2017, the BOCC approved a Sixth Amendment to Lease Agreement to adjust for the CPI -U for the prior 12 months ending December 2016 of 2.1 %. CONTRACT /AGREEMENT CHANGES: Replace existing huts and storage trailer in designated area in parking area with a 20' x 8' "Tiny House" Style Trailer licensed, registered, and in a road ready condition to be placed on existing concrete pad. STAFF RECOMMENDATION: Approval DOCUMENTATION: Seventh Lease Amendment - Tropical Watersports (executed and stamped) Proposed Hut Replacement 6th Amendment 03152017 (executed) 101916 TWS 5th Amendment Executed C -30 032316 4th Amendment Tropical Watersports Executed 031815_Tropical Watersports _ Executed _C -24 (3rd Lease Amendment Renewal) 01192012 2nd Amend Executed Lease TWS 10212009 First Lease Amendment 04152009 Tropical Lease Agreement FINANCIAL IMPACT: Effective Date: April 15, 2017 Expiration Date: April 14, 2018 Total Dollar Value of Contract: $2,176.40 /month Revenue Total Cost to County: Revenue Current Year Portion: $11,970.20 Revenue Budgeted: Yes Source of Funds: Revenue CPI: Yes Indirect Costs: N/A Estimated Ongoing Costs Not Included in above dollar amounts: N/A Revenue Producing: Yes If yes, amount: $2,176.40 /month Grant: N/A County Match: N/A Insurance Required: Yes Additional Details: Revenue REVIEWED BY: Kevin Wilson Completed 06/06/2017 5:19 PM Patricia Eables Completed 06/06/2017 5:56 PM William DeSantis Completed 06/07/2017 7:05 AM Budget and Finance Completed 06/07/2017 8:31 AM Maria Slavik Completed 06/07/2017 8:43 AM Kathy Peters Completed 06/07/2017 8:53 AM Board of County Commissioners Pending 06/21/2017 9:00 AM SEVENTH LEASE AMENDMENT HIGGS BEACH CONCESSIONS TROPICAL WATERSPORTS, LLC THIS SEVENTH LEASE AMENDMENT ( "Amendment ") is made and entered into on this 21st day of June, 2017, by and between MONROE COUNTY, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040, hereinafter referred to as "COUNTY" or "LESSOR" and TROPICAL WATERSPORTS, LLC, whose address is 1607 Laird Street, Key West, Florida, 33040, hereinafter referred to as "TENANT "or "LESSEE ". WHEREAS, the parties hereto did on April 15, 2009, enter into a Lease Agreement for Higgs Beach Concessions ( "Lease "); and WHEREAS, the parties hereto did on October 21, 2009, enter into a First Lease Amendment to the Lease for purposes of providing additional booth areas for LESSEE and amending Exhibit "A ", which depicted the leased areas ( "First Amendment "); and WHEREAS, the parties hereto did on January 20, 2012, enter into a Lease Renewal Agreement providing for an initial term of three (3) years, beginning on April 15, 2012, with a three (3) year renewal period, reduced and relocated the Lessee's leased area, and replaced Exhibit "A" with a revised Exhibit "A" dated September 27, 2011, ( "Revised Exhibit "A ") depicting the updated leased areas and renumbered to be Areas 1, 2, and 3 ( "Lease Renewal "); and WHEREAS, the parties hereto intended to enter into a Second Lease Amendment which was never fully executed ( "Second Amendment "); and WHEREAS, the parties hereto did on March 18, 2015, enter into a Third Lease Amendment and Renewal Agreement providing for the renewal of the Lease for an additional three (3) year term, an increase in Rental and Fees, and the requirement that the Lessee shall provide a copy of Tax Form DR- 15 along with his monthly payments ( "Third Amendment "); and WHEREAS, the parties hereto did on March 23, 2016, enter into a Fourth Amendment to Lease Agreement providing for an increase in Rent and Fees ( "Fourth Amendment "); and WHEREAS, the parties hereto did on October 19, 2016, enter into a Fifth Amendment to Lease Agreement to reduce the Lessee's leasehold area by discontinuing the use of Area 3, ( "Concessions Storage ") and Area 2, ( "Sailboat Storage Area ") and increase the Lessee's leasehold area by designating an area for the parking of a road ready mobile storage container ( "Mobile Storage Trailer "), in the Higgs Beach parking area, as depicted on Exhibit "B" as Area 2, ( "Concession Storage Trailer "); and WHEREAS, the parties hereto did on March 15, 2017, enter into a Sixth Amendment to Lease Agreement providing for an increase in Rent and Fees ( "Sixth Amendment "); and WHEREAS, the parties now desire, to enter into a Seventh Amendment to Lease Agreement providing for replacing existing three (3) registered trailer and concession huts with one (1) 20' x 8' "Tiny House" Style registered trailer to be located onto the existing concrete pad as depicted on the Higgs Beach Site Plan, Exhibit "B" as Area 1 (Existing Conc. Slab), dated revised September 15, 2016, a copy of which is attached hereto and made a part hereof, and Page 1 of 3 WHEREAS, the parties now desire to decrease the Lessee's leasehold area by discontinuing use of the area designated for the parking of a road ready mobile storage container ( "Mobile Storage Trailer "), in the Higgs Beach parking area, depicted on Exhibit "B" as Area 2, ( "Concession Storage Trailer "); and WHEREAS, Lessee now agrees to keep the 20' x 8' "Tiny House" Style Trailer licensed, registered, and in a road ready condition; and WHEREAS, the parties now desire that the Higgs Beach Site Plan, revised September 15, 2016, Exhibit "B ", which is a part of this Seventh Lease Amendment, a copy of which is attached hereto and made a part hereof, be replaced with a revised Exhibit "B ", designated as revised June 6, 2017, to reflect the modifications herein to the leased area, a copy of which is attached hereto and made a part hereof; and WHEREAS, the parties have found the Lease to be mutually beneficial; and WHEREAS, both parties desire to amend the Lease, NOW, THERFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows: Section 1. Paragraph 1, Premises, of the Lease dated April 15, 2009, is amended to read as follows: 1. Premises. The COUNTY does hereby lease to LESSEE, and LESSEE does hereby lease from the COUNTY a portion of Clarence S. Higgs Memorial Beach, Key West, Florida, as evidenced by the Area numbered 1 on the HIGGS BEACH SITE PLAN, revised June 6, 2017 ( "Exhibit "B "), a copy of which is attached hereto and made a part hereof. Section 2. In all other respects, the Lease dated April 15, 2009, the First Amendment dated October 21, 2009, the Lease Renewal dated January 20, 2012, the Third Amendment, dated March 18, 2015, the Fourth Amendment dated March 23, 2016, the Fifth Amendment dated October 19, 2016, and the Sixth Amendment dated March 15, 2017, remain in full force and effect. Except as set forth above, in all other respects, the term; and conditions of the Lease Agreement, as amended, not inconsistent herewith, remain in full force and effect:. IN WITNESS WHEREOF, each party has caused this Seventh Amendment to Lease Agreement to be executed by its duly authorized representative. (SEAL) BOARD OF COUNTY COMMISSIONERS ATTEST: KEVIN MADOK, CLERK OF MONROE COUNTY, FLORIDA llgy!;q!l lql�llpllyy i i I �! I i i I � � I � I � � I � l�! I � 1 1 � 11 1�� I'llif!l I I filifilif : TIPill'Urr 1 I I filifilif : 711 1111 'Urr jw O n 4r V7 Cl Am c - n Tl I Co A I L o f o G et I Tv • • tk illililill HIGGS BEACH SIT PLAN REMSED GIrPIEM8ER95THMIS lKAMOECOUNTYPROJECT MANAGEANT M BOACH CHMR CONCESSIONS 12 CONCESSIONSTORAGE TRAILER OLOPIERSUPPORTS �FLOAY LkiE E OMBIT NOTE RENTAL EOWMENT SWL NOT BLOCK B EACH CLEANWG EOWMENT FROtdROFONkFG RMSEAWEEO FROM UE SHORMU E SEAWALL vff IIII OLD PIER SUPPORT � f 9 C URRENT HIGH WAT RENTAL EQUIPMENT SHALL P&E SEAWEED F ROM THE SH Tropical Watersports, Its LC. Higgs Beach, Key West P roposal to replace existing a concession huts and box trailer TO T A 'l-er'nbo 1607 Laird St Key West,, 33040 305-304-0093 Currently Tropical Watersports is utilizing the following structures 1 A 9' x 9' Wood frame open air but for customer interaction, cash register, concierge books etc... 2 An 8' x 8' Wood framed storage but for storage of 30 Umbrellas, sand chairs, life jackets, paddles, signage, small kayaks, stackable chairs and tables. 3 A 16' x 7' box trailer parked in parking lot -12 'long Paddleboard storage, raft storage, dry secure storage for inventory of towels, snorkels & masks & sunblock for sale. Other tools and maintenance items. All 3 structures are current registered trailers. Due to wear and tear from the harsh environment I will need to replace the 8' x 8' storage shed and the 9' x 9' hut. I am proposing replacing all 3 structures with a single 20' x 8' "tiny house" style of registered trailer. All of the contents of the 3 current sheds /trailer will fit into the single structure. The proposed structure will be more functional than the 3 current structures, will reduce the footprint and be much easier to remove during a storm. The proposed new structure will fit onto the current pad with room to spare. It will be designed to complement the aesthetics at Higgs Beach. Attached are specs and a photo of a similar structure being used for a beach concession in Rhode Island. 20' x 8' registered trailer. 7'6" ceiling height. Low axle set up to minimize height. Security roll up rear door for paddleboard storage Security roll up door on water side for access to cash register, supplies etc... Metal roof Lower sides will have lattice to hide wheels when not trailering 2 round windows facing street Round Tropical Watersports sign on street side Cedar and aluminum siding to eliminate rot Time frame for build is estimated to be 8 weeks from County approval and my initial deposit KEVIN MAW& CPA MONROE COUNTY CLERK OF THE CIRCUIT COURT & COMPTROLLER DATE: March 21, 2017 TO: Alice Steryou Contract Monitor VIA: Tammy Sweeting Administrative Assistant FROM: Pamela G. Hancock, D.O SUBJECT: Ma rch 15th BOCC Meeting Enclosed is a duplicate original of each of the following items for your handling: JC20 Sixth Amendment to Lease Agreement with Tropical Watersports. LLC, a water sports equipment rental vendor on Higgs Beach, to adjust for the CPI -U for the prior 12 months ending December 2016 of 2.1 %. C21 Approval of a CPI -U adjustment ending on December 31, 2015 of .7% to the Business Lease with Ships Way, Inc. for Commissioner Neugent's office space on Big Pine Key. The lease will increase from $1,238.21 per month to $1,246.88 per month commencing on December 15, 2016. Should you have any questions, please feel free to contact me at ext. 3130. Thank you. cc: County Attorney Finance File ,/ SIXTH LEASE AMENDMENT HIGGS BEACH CONCESSIONS TROPICAL WATERSPORTS, LLC THIS SIXTH LEASE AMENDMENT ( "Amendment ") is made and entered into on this 15th day of March, 2017, by and between MONROE COUNTY, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040, hereinafter referred to as "COUNTY" or "LESSOR" and TROPICAL WATERSPORTS, LLC, whose address is 1607 Laird Street, Key West, Florida, 33040, hereinafter referred to as "TENANT "or "LESSEE ". WHEREAS, the parties hereto did on April 15, 2009, enter into a Lease Agreement for Higgs Beach Concessions ( "Lease "); and WHEREAS, the parties hereto did on October 21, 2009, enter into a First Lease Amendment to the Lease for purposes of providing additional booth areas for LESSEE and amending Exhibit "A" which depicted the leased areas ( "First Amendment "); and WHEREAS, the parties hereto did on January 20, 2012, enter into a Lease Renewal Agreement providing for an initial term of three (3) years, beginning on April 15, 2012, with a three (3) year renewal period, reduced and relocated the Lessee's leased area, and replaced Exhibit "A" with a revised Exhibit "A" dated September 27, 2011, ( "Revised Exhibit "A ") depicting the updated leased areas and renumbered to be Areas 1, 2, and 3 ( "Lease Renewal "); and WHEREAS, the parties hereto intended to enter into a Second Lease Amendment which was never fully executed ( "Second Amendment "); and WHEREAS, the parties hereto did on March 18, 2015, enter into a Third Lease Amendment and Renewal Agreement providing for the renewal of the Lease for an additional three (3) year term, an increase in Rental and Fees, and the requirement that the Lessee shall provide a copy of Tax Form DR- 15 along with his monthly payments ( "Third Amendment "); and WHEREAS, the parties hereto did on March 23, 2016, enter into a Fourth Amendment to Lease Agreement providing for an increase in Rent and Fees ( "Fourth Amendment "); and WHEREAS, the parties hereto did on October 19, 2016, enter into a Fifth Amendment to Lease Agreement to reduce the Lessee's leasehold area by discontinuing the use of Area 3, ( "Concessions Storage ") and Area 2, ( "Sailboat Storage Area ") and increase the Lessee's leasehold area by designating an area for the parking of a road ready mobile storage container ( "Mobile Storage Trailer "), in the Higgs Beach parking area, as depicted on Exhibit "B" as Area 2, ( "Concession Storage Trailer "); and WHEREAS, the parties now desire, to enter into a Sixth Amendment to Lease Agreement providing for an increase in Rent and Fees to adjust annually the CPI -U as of December 31, 2016, in the amount of 2.1 %; and WHEREAS, the parties have found the Lease to be mutually beneficial; and WHEREAS, both parties desire to amend the Lease, Page 1 of 2 4 NOW, THERFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Paragraph 3 of the Lease Agreement is amended to read: 3. Rental and Fees. In return for the privilege of using the designated portions of Clarence S. Higgs Memorial Beach, LESSEE shall make monthly payments of rent to LES as follows: N a. IQ% of its total gross proceeds or $1,036.38 per month, plus sales and usage _ =tax, whichever is greater, for the beach chair and umbrella rentals; and C . L N . c_ b. r40-% of its total gross proceeds or $1,036.38 per month, plus sales and usage w � -' whichever is greater, for the kayak, sailboat, daysailer, snorkel equipment, E- « 1k#►gboard, aqua ball, paddle board, and other water related equipment rentals; C V and c. 10% of its total gross proceeds or $103.64 per month, plus sales and usage tax, whichever is greater, of the locker rental proceeds. Except as set forth above, in all other respects, the terms and conditions of the Lease Agreement as amended not inconsistent herewith remain in full force and effect. S WHEREOF, each party has caused this Sixth Amendment to Lease Agreement to be duly authorized representative. MADOK, CLERK Deputy Clerk WITNESSES A Printed Name and Date I r a5�v 3� Signat e VA G-=' "'A- V 2-k &C)'- �� I Printed Name and Date 'A Signature BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA B Mayor /Chairman TROPICAL WATERSPORTS, LLC Sign at� 157VL, -. /- e, It r, x Printed Name and Title 3////7 Date MONROE COUNTY ATTORNEY'S OFFICE A ROVEq AST F ti l�.d,ri. PATRICIA EAGLES ASSISTANT COUNTY AIT RNEY DATE: Page 2 of 2 4 L Cl n C91 rN * de r. As 0 _ d qp I 2 16 .4L I Packet Pg. 416 1 !�i 1111 EXISTING CONC. �OLD PIER SUPPORTS �FLOATLINE E��BR HIGGS BEACH SIT PLAN REVISED SEPTEMBER 15TH 2016 MONROE COUtM PROJECT MANAGEMENT #1 BEACH CHAIR CONCESSIONS #2 CONCESSION STORAGE TRAILER NOTE: RENTAL EQUIPMENT SHALL NOT BLOCK BEACH CLEANING EQUIPMENT FROM REMOVING P&E SEAWEED FROM THE SHORELINE SEAWALL Packet' Pct 41'7 ' DATE: December 13, 2016 TO: Doug Sposito, Director Project Management ATTN.• Kevin Wilson FROM. • Cheryl Robertson Executive Aide to the Clerk of Court & Comptroller At the October 19, 2016 Board of County Commissioner's meeting the Board granted approval and execution of the following Item C30 Approval of Fifth Amendment to Lease Tropical Watersports. The parties now desire to reduce the Lessee's leasehold area by discontinuing the use of Area 3, ( "Concessions Storage ") and Area 2, ( "Sailboat Storage Area "), as depicted on Exhibit "A" dated September 27, 2011 and increase the Lessee's leasehold area by designating an area for the parking of a road ready mobile storage container ( "Mobile Storage Trailer "), in the Higgs Beach parking area, as depicted on Exhibit "B" as Area 2, ( "Concession Storage Trailer "); and Lessee agrees to keep the Mobile Storage Trailer licensed, registered, and in a road ready condition. Revenue payments made to the County remain at $2,131.63 /month plus sales and usage tax, or 10% of gross revenue, whichever is greater. Enclosed is a duplicate original of the above - mentioned for your handling. Should you have any questions, please feel free to contact our office. cc County Attorney Finance File 500 Whitehead Street Suite 101, PO Box 1980, Key West, FL 33040 Phone: 305- 295 -3130 Fax: 305 - 295 -3663 3117 Overseas Highway, Marathon, FL 33050 Phone: 305 - 289 -6027 Fax: 305 - 289 -6025 88820 Overseas Highway, Plantation Key, FL 33070 Phone: 852 -7145 Fax: 305- 852 -7146 FIFTH LEASE AMENDMENT HIGGS BEACH CONCESSIONS TROPICAL WATERSPORTS, LLC THIS FIFTH LEASE AMENDMENT ( "Amendment ") is made and entered into on this I C�h day of October, 2016 by and between MONROE COUNTY, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040, hereinafter referred to as "COUNTY" or "LESSOR" and TROPICAL WATERSPORTS, LLC., whose address is 3635 Seaside Drive #301, Key West, Florida, 33040 hereinafter referred to as "TENANT "or "LESSEE ". WHEREAS, the parties hereto did on April 15, 2009 enter into a Lease Agreement for Higgs Beach Concessions ( "Lease "); and WHEREAS, the parties hereto did on October 21, 2009 enter into a First Lease Amendment to the Lease for purposes of providing additional booth areas for LESSEE and amending Exhibit "A" which depicted the leased areas ( "First Amendment "); and WHEREAS, the parties hereto did on January 20, 2012 enter into a Lease Renewal Agreement providing for an initial term of 3 years, beginning on April 15, 2012, with a 3 year renewal period, reduced and relocated the Lessee's leased area and replaced Exhibit "A" with a revised Exhibit "A" dated September 27, 2011 ( "Revised Exhibit "A ") depicting the updated leased areas and renumbered to be Areas 1, 2, and 3 ( "Lease Renewal "); and WHEREAS, the parties hereto intended to enter into a Second Lease Amendment which was never fully executed ( "Second Amendment "); and WHEREAS, the parties hereto did on March 18, 2015 enter into a Third Lease Amendment and Renewal Agreement providing for the renewal of the Lease, an additional (3) three year term, an increase in Rental and Fees and the requirement that the Lessee shall provide a copy of Tax Form DR- 15 along with his monthly payments ( "Third Amendment "); and WHEREAS, the parties hereto did on March 23, 2016 enter into a Fourth Amendment to Lease Agreement providing for an increase in Rent and Fees ( "Fourth Amendment "); and WHEREAS, the parties now desire to reduce the Lessee's leasehold area by discontinuing the use of Area 3, ( "Concessions Storage ") and Area 2, ( "Sailboat Storage Area "), as depicted on the above referenced Exhibit "A" dated September 27, 2011, a copy of which is attached hereto and made a part hereof; and WHEREAS, the parties now desire to increase the Lessee's leasehold area by designating an area for the parking of a road ready mobile storage container ( "Mobile Storage Trailer "), in the Higgs Beach parking area, as depicted on Exhibit "B" as Area 2, ( "Concession Storage Trailer "); and WHEREAS, Lessee now agrees to keep the Mobile Storage Trailer licensed, registered, and in a road ready condition; and Page 1 of 3 WHEREAS, the parties now desire to make Higgs Beach Site Plan, Revised September 15, 2016, Exhibit "B ", a part of this Fifth Lease Amendment, a copy of which is attached hereto and made a part hereof; and WHEREAS, the parties have found the Lease to be mutually beneficial; and WHEREAS, both parties desire to amend the Lease, NOW, THERFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows: Section 1. Paragraph 1, Premises, of the Lease is amended to read as follows: 1. Premises. The COUNTY does hereby lease to LESSEE, and LESSEE does hereby lease from the COUNTY a portion of Clarence S. Higgs Memorial Beach, Key West, Florida as evidenced by the Areas numbered 1 and 2 on the HIGGS BEACH SITE PLAN, Revised September 15, 2016 ( "Exhibit "B "), a copy of which is attached hereto and made a part hereof. Section 2. In all other respects, the Lease dated April 15, 2009, the First Amendment dated October 21, 2009, the Lease Renewal dated January 20, 2012, the Third Amendment March 18, 2015, and the Fourth Amendment dated March 23, 2016, remain in full force and effect. IN WITNESS WHEREOF, the parties have caused this Fifth Lease Amendment to be executed this day of October, 2016. VILIN, CLERK VI . C' } "? Clerk 1z,. / ) 4' BOARD OF COC "TY COMMISSIONERS OF MONROE m [ By __ — Mayor /Ch irper4od, Heather Carruthers TROPICAL WATERSPORTS, LLC. By Title Page 2 of 3 This document was prepared and approved as to form by: �" - � - )& C,6 1 C. Rene Rogers, Esq. 0 Date Assistant County Attorney Florida Bar No.: 0101178 P.O. Box 1026 Key West, FL 33041 -1026 (305) 292 -3470 Page 3 of 3 4 Q r r �n r r � r� o� y �JJ _Cl r Cl a� rs r � rn O = n s o z l R s EXH --A . � w _/ ��� 'w .� �' .fir ♦� � � M y' R 1 1 . ca a s EXH --A . � w _/ ��� 'w .� �' .fir ♦� Packet Pg. 422 .,..., � � M Packet Pg. 422 .,..., L�3E�(�SMLiI�+ ATLANTIC BLVD. FLOAT LINE l 11 X.-NA HIGGS BEACH SI PLAN REVISED SEPTEMBER 15TH 2016 MONROE COUNTY PROJECT MANAGEMENT #1 BEACH CHAIR CONCESSIONS #2 CONCESSION STORAGE TRAILER NOTE: RENTAL EQUIPMENT SHALL NOT BLOCK BEACH CLEANING EQUIPMENT FROM REMOVING P &E SEAWEED FROM THE SHORELINE EXISTING SEAWALL Packet Pg. 423 FOURTH AMENDMENT TO LEASE AGREEMENT HIGGS BEACH CONCESSION TROPICAL WATERSPORTS, LLC This Fourth Amendment to Lease Agreement is made and entered into on the 23rd day of March, 2016 by and between MONROE COUNTY, a political subdivision of the State of Florida, hereinafter referred to as "COUNTY or LESSOR ", whose address is 1100 Simonton Street, Key West, Florida, 33040, and TROPICAL WATERSPORTS, LLC., hereinafter referred to as "LESSEE" or "TENANT" whose address is 1620 Rose Street, Key West, Florida 33040. WHEREAS, on April 15, 2009, the parties entered into a Lease Agreement for the LESSEE's use of LESSOR's property in return for monthly payment fees ( "Lease Agreement "); and WHEREAS, on October 21, 2009, the parties entered into a First Amendment to the Lease Agreement to provide LESSEE additional concession booth areas; and WHEREAS, on January 20, 2012, the parties entered into a Second Amendment to the Lease Agreement to reduce the leased area and booths, and amend the rental and fees amounts; and WHEREAS, on March 18, 2015, the parties entered into a Third Lease Amendment and Renewal Agreement to extend the terms of the Lease Agreement for three years and amend rental and fees with an annual CPI -U adjustment; and WHEREAS, the parties desire to amend the Lease Agreement to adjust annually the CPI -U as of December 31, 2015 in the amount of .7 %. IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: 1. Paragraph 3 of the Lease Agreement is amended to read: 3. Rental and Fees. In return for the privilege of using the designated portions of Clarence S. Higgs Memorial Beach, LESSEE shall make monthly payments of rent to LESSOR as follows: a. 10% of its total gross proceeds or $1,015.06 per month plus sales and usage tax, whichever is greater, for the beach chair and umbrella rentals; and b. 10% of its total gross proceeds or $1,015.06 per month plus sales and usage tax, whichever is greater, for the kayak, sailboat, daysailer, snorkel equipment, longboard, aqua ball, paddle board, paddle board and other water related equipment rentals; and c. 10% of its total gross proceeds or $101.51 per month plus sales and usage tax, whichever is greater, of the locker rental proceeds. 1, Except as set forth above, in all other respects, the terms and conditions of the Lease Agreement as amended not inconsistent herewith remain in full force and effect. IN WITNESS WHEREOF, each party has caused this Fourth Amendment to Lease Agreement to be executed by its duly authorized representative. ka Date Signature ate Tropical Watersports, LLC C k- sly U-r , L Printed Name Signa're Title: M G J Date: Z l THIRD LEASE AMENDMENT AND RENEWAL AGREEMENT HIGGS BEACH CONCESSION TROPICAL WATERSPORTS LLC This Third Lease Amendment and Renewal Agreement is made and entered into on the 18 day of March, 2015 by and between MONROE COUNTY, a political subdivision of the State of Florida, hereinafter referred to as "COUNTY or LESSOR ", whose address is 1100 Simonton Street, Key West, Florida, 33040, and TROPICAL WATERSPORTS, LLC., hereinafter referred to as "LESSEE" or "TENANT" whose address is 3635 Seaside Dr. #301, Key West, Florida 33040. WHEREAS, on the 15th day of April, 2009, the parties entered into an agreement for the use of property more particularly described in exhibit "A ", hereafter original agreement. A copy of the original agreement is attached to this renewal agreement and made a part of it; and WHEREAS, on the 21 day of October, 2009, the parties entered into the first amendment to the agreement for purposes of providing additional booth areas for LESSEE and amending exhibit "A" which depicted the leased areas; and WHEREAS, on the 20th day of January, 2012, the parties entered into the second amendment to the agreement reducing and relocating the leased area, amending the rental and fees; and WHEREAS, the original agreement as amended was for a term of three years with an optional (1) three year renewal option, the parties desire to renew the original agreement as amended for one (3) year term; now, therefore, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: 1. Paragraph 2 of the original agreement is amended to read: 2. Term. The term of this renewal agreement is for three (3) years commencing on April 15, 2015. 2.. Paragraph 3 of the original agreement is amended to read: 3. Rental and Fees. In return for the privilege of using the designated portions of Clarence S. Higgs Memorial Beach, LESSEE shall make monthly payments of rent to LESSOR as follows: a. 10% of its total gross proceeds or $1,008.00 per month plus sales and usage tax, whichever is greater, for the beach chair and umbrella rentals; and b. 10% of its total gross proceeds or $1,008.00 per month plus sales and usage tax, whichever is greater, for the kayak, sailboat, daysailer, snorkel equipment, longboard, aqua ball, paddle board, paddle board and other water related equipment rentals; and c. 10% of its total gross proceeds or $100.80 per month plus sales and usage tax, whichever is greater, of the locker rental proceeds. d. Rental and fees shall be adjusted annually in an amount equal to the CPI -U for the preceding 12 calendar months. e. LESSEE shall, in arrears, include a copy of LESSEE's previous month's Florida Department of Revenue Sales and Use Tax Form DR -15 with LESSEE's monthly payments evidencing LESSEE's gross proceeds for the previous month. Payments shall be made on or before the fifteenth day of the month following the month payment is due. Payment should be directed to the Monroe County Finance Dept., P.O. Box 1980, Key West, Florida 33040. Rent shall be paid in equal monthly installments, all of which shall be due and payable on or before the fifteenth day of each calendar month during which this lease is in effect. Upon the failure of LESSEE to pay any installments when due, the LEESOR will be entitled to charge and collect, and LESSEE will be obligated to pay, a late fee of two percent (2 %) of any such amount, if paid within thirty (30) days of the date due, and five percent (5 %) of any such amount, not paid within thirty (30) days of the date due. Such late fees will be in addition to the amount of rent due. The acceptance by the COUNTY of the overdue rental installment plus applicable late fees shall cure what would otherwise constitute a default by LESSEE under the terms of this lease. The COUNTY, at its option, however, may refuse a proffered overdue rental installment and late fees, declare a default, and proceed according to paragraph 4 of this lease. In the event that any check, draft, or negotiable instrument by which LESSEE has tendered any rent payment is returned to the COUNTY and not honored, whether for insufficient funds or other reason, the COUNTY will be entitled to charge and collect, in addition to any applicable late payment fees as provided above, a fee of Twenty -five Dollars ($25.00) for such dishonored instrument. Such penalty fee shall also be in addition to the amount of rent due. The acceptance by the COUNTY of the rental payment plus any applicable late fee and penalties following the receipt of a dishonored instrument shall cure what would otherwise constitute a default under the terms of this lease. The COUNTY, at its option, however, may refuse any proffered rental installment and applicable late fees and penalties, declare a default, and proceed according to paragraph 4 of this lease. Except as set forth in paragraphs one and two of this Third Lease Renewal and Amendment Agreement, in all other respects, the terms and conditions of the April 15, 2009 original agreement, October 21, 2009 and October 19, 2012 renewal, not inconsistent herewith remain in full force and effect. IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its duly authorized representative. HEAVILIN, CLERK t SEAL) ATTEST: AMY i 'i ' , CLERIC BY, ymft;��� f) r Co Tropical Waters ores, LLC Date Printed Name S igiiature Dat Title: Date: WITNESSES February 24, 2015 Monroe County Board of Commissioners Key West, FL 33040 Ladies and Gentlemen, Pursuant to the Lease Agreement dated 1/20/2012 between Monroe County and Tropical Watersports, LLC (the "Lease ") I am notifying the Board that I will be renewing the Lease pursuant to the terms outlined in Lease. December 31, 2014 CPI adjustment of .08% Thank You, s Christopher J. Lembo, Managing Member Tropical Watersports, LLC C.12.g N C r -- LEASE RENEWAL AGREEMENT T, =;A Z=) HIGGS BEACH CONCESSION TROPICAL WATERSPORTS. LLC _ w This Agreement is made and entered into on the ,p9lh day o , 249 , ' an between MONROE COUNTY, a political subdivision of the State of Florida, hereinafter referred Gas QOUNTY or LESSOR ", whose address is 1100 Simonton Street, Key West, Florida, 33040, and TROPICAL WATERSPORTS, LLC., hereinafter referred to as "LESSEE" or "TENANT" whose address is 3635 Seaside Dr. #301, Key West, Florida 33040. WHEREAS, on the 15th day of April, 2009, the parties entered into an agreement for the use of property more particularly described in exhibit "A ", hereafter original agreement. A copy of the original agreement is attached to this renewal agreement and made a part of it; and WHEREAS, on the 21" day of October, 2009, the parties entered into the first amendment to the agreement for purposes of providing additional booth areas for LESSEE and amending exhibit "A" which depicted the leased areas: and WHEREAS, LESSEE no longer needs the additional booth areas and the parties have agreed to reduce and relocate LESSEE's leased areas and amend exhibit "A "; and WHEREAS, the original agreement was for a term of three years with two (1) year renewal options, however the parties desire to renew the original agreement for 6 years; now, therefore, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: 1. Exhibit A of the original agreement is hereby replaced with the attached Exhibit A dated September 27, 2011. 2. Paragraph 1 of the original agreement is amended to read: 1. Premises. The COUNTY does hereby lease to LESSEE, and LESSEE does hereby lease from COUNTY a portion of Clarence S. Higgs Memorial Beach, Key West, Florida as evidenced by the areas numbered 1, 2 and 3 on the drawing marked "EXHIBIT A" dated 9/2712010, which is attached hereto and made a part hereof. 3. Paragraph 2 of the original agreement is amended to read: 2. Term. The initial term of this renewal agreement is for three (3) years beginning on April 15, 2012. LESSEE may exercise an option to renew this agreement for one (1) additional three (3) year period with the written approval of the Board of County Commissioners. LESSEE shall submit a request in writing, at least 60 days prior to the current term, to the Board of County Commissioners requesting the renewal. 4. Paragraph 3 of the original agreement is amended to read: 3. Rental and Fees. In return for the privilege of using the designated portions of Clarence S. Higgs Memorial Beach, LESSEE shall make monthly payments of rent to LESSOR as follows: a. 10% of its total gross proceeds or $1,000.00 per month plus tax, whichever is greater, for the beach chair and umbrella rentals; and b. 10% of its total gross proceeds or $1,000.00 per month plus tax, whichever is greater, for the kayak, sailboat, daysailer, snorkel equipment, longboard, aqua ball, paddle board, paddle board and other water related equipment rentals; and c. 10% of its total gross proceeds or $100.00 per month plus tax, whichever is greater, of the locker rental proceeds. d. Rental and fees for the initial term of 3 years shall be as set forth in subparagraphs 3a., 3b. and 3c. above thereafter rental and fees shall be adjusted annually in an amount equal to the CPI -U for the preceding 12 months. Payments shall be made on or before the fifteenth day of the month following the month payment is due. Payment should be directed to the Monroe County Finance Dept., P.O. Box 1980, Key West, Florida 33040. 5. Subparagraph 5f. of the original agreement is deleted in its entirety. 6. Subparagraph 5j. of the original agreement is amended to read: J. This agreement is limited to rentals of beach chairs, umbrellas, kayaks, 14 and 16 foot sailboats, sunfish daysailers, snorkel equipment, longboards, aqua balls, paddle boards, paddle boats and such other water related equipment. LESSEE may also offer concierge services and sell local art, t -shirts and other similar souvenirs. NO OTHER SERVICE MAY BE PROVIDED WITHOUT THE WRITTEN CONSENT OF THE COUNTY. 7. Subparagraph 6d. is deleted in its entirety. Except as set forth in paragraphs one, two, three, four, five, six and seven of this Lease Renewal Agreement, in all other respects, the terms and conditions of the original agreement remain in full force and effect. IN WITNESS WHEREOF, each authorized repentative. §� ,ATTEST DANNY .. KOLHAGE, CLERK party has caused this Agreement to be executed by its duly BOARD OF COUNTY COMMISSIONERS OF MONRO , F A Mayor /Chairman c/ / ..I, WITNESSES Tropical W AS LLC 4en4 'j V CADO Nl COU STA Y ATTORNEY f! �� Date 0 m {n m r s y r S W O n 9 R - a — n C) U. r ac > f" m rn O= n 0 Z n - A - r•. _ 1 1 y a� 9 � r v . J r S s y� Y e_ m I ; o 3 + - r _ t i t � kw r v n ct P-� J L_ F m n 0 rn c z O `-1 r p !1 I[ f J E `. r Opt 1 �r �o z O � O ^ y - c F m n 0 rn c z O `-1 r p !1 I[ f J E `. r Opt 1 FIRST LEASE AMENDMENT HIGGS BEACH CONCESSIONS TROPICAL WATERSPORTS, LLC THIS FIRST LEASE AMENDMENT (hereinafter "Amendment ") is made and entered into by and between MONROE COUNTY, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040, hereinafter referred to as "COUNTY" or "LESSOR" and TROPICAL WATERSPORTS, LLC., whose address is 1002 Fleming Street, Key West, Florida, 33040 hereinafter referred to as "TENANT "or "LESSEE ". WHEREAS, the parties hereto did on April 15, 2009 enter into a Lease Agreement for Higgs Beach Concessions; and WHEREAS, the LESSEE wishes to add booths to areas #2 and #5 necessitating clarification on the drawing evidencing areas 1, 2, 3, 4, 5 and 6, the designated areas of use, on "Exhibit A and and WHEREAS, the parties have found the original Lease Agreement to be mutually beneficial: WHEREAS, both parties desire to amend the original Lease Agreement, NOW, THERFORE, in consideration of the premises and of the mutual covenants set forth below, the parties agree as follows: C3 CO Cr © :.i 1 v . Paragraph 1, Premises, of the original lease is amended to read as follows: W -� r cc yTf. -; Premises. The COUNTY does hereby lease to LESSEE, and LESSEE does hereby of leaser -from the COUNTY a portion of Clarence S. Higgs Memorial Beach, Key West, o e}o`�a�a as evidenced by the areas numbered 1, 2, 3, 4, 5 and 6 on the drawing marked U o wit A Amended ", which is attached hereto and made a part hereof. `%' Section 2. In all other respects, the original Lease Agreement dated April 15, 2009 remains in full force and effect. 'I'NESS WHEREOF, the parties have caused this lease to be executed this S - �day of , 2009. (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK i I s 0 bv� Deputy Clerk : `' OE C®U WP RID v E WITNESSES: BOARD OF COUNTY COMMISSIONERS OF ONROE CO T l� 7 \ 7 1� / � T � TY, FLO A B 1 5 ,_.. � Y 'q . '��� E, jCCC!llCCC� ��, •..R ��,�p com _ Expires 1/2/2012 George Neugent CAL WATERSPORTS, LLC. ce - /-- EX HIBIT "A" AMENDED dstAdCA MIL. •_I_ Lo. 5 U) if as as as I% 0/ CL CL 0 E E w as as CN CD I I i 0 LEASE AGREEMENT HIGGS BEACH CONCESSIONS TROPICAL WATERSPORTS, LLC THIS CONTRACT OF LEASE is made and entered into by and between MONROE COUNTY, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040, hereinafter referred to as "COUNTY" or "LESSOR" and TROPICAL WATERSPORTS, LLC., whose address is 1002 Fleming Street, Key West, Florida, 33040 hereinafter referred to as "TENANT "or "LESSEE" this 15"' day of April, 2009. WHEREAS, the LESSOR desires to grant to LESSEE a non- exclusive right to maintain and operate a concession on the beach for purposes of renting beach chairs, umbrellas, kayaks, sailboats, and daysailers; and WHEREAS, the LESSOR and LESSEE desire, in connection with said operations, to provide for the leasing by LESSOR to LESSEE of certain space at Clarence S. Higgs Memorial Beach; NOW, THERFORE, in consideration of the premises and of the mutual covenants and agreements herein contained, and other valuable considerations, COUNTY does hereby grant and lease unto LESSEE and LESSEE does hereby lease from COUNTY, certain premises, rights and privileges as follows, to wit: 1. Premises The COUNTY does hereby lease to LESSEE, and LESSEE does hereby lease from the COUNTY a portion of Clarence S. Higgs Memorial Beach, Key West, Florida as evidenced by the areas numbered 1, 2, 3, 4, 5 and 6 on the drawing marked "Exhibit A ", which is attached hereto and made a part hereof. 2. Term. The term of this lease is for three (3) years beginning on April 15, 2009. LESSEE may exercise an option to renew this lease for two (2) additional one (1) year periods with the written approval of the Board of County Commissioners. LESSEE shall submit a request in writing, at least 60 days prior to expiration of the then current term, to the Board of County Commissioners requesting the renewal. 3. Rental and Fees. In return for the privilege of using the designated portions of Clarence S. Higgs Memorial Beach, LESSEE shall make monthly payments of rent to LESSOR as follows: a. 10% of its total gross proceeds or $500.00 per month, whichever is greater, for the beach chair and umbrella rentals; and b. 10% of its total gross proceeds or $1,000.00 per month, whichever is greater, for the kayak, sailboat, and daysailer rentals. Payment shall be made on or before the fifteenth day of the month following the month payment is due. Payment should be directed to the Monroe County Finance Dept., P.O. Box 1980, Key West, Florida. 33040. The first payment shall be due May 15, 2009. Rent shall be paid in equal monthly installments, all of which shall be due and payable on or before the fifteenth day of each calendar month during which this lease is in effect. Upon the failure of LESSEE to pay any installments when due, the LEESOR will be entitled to charge and collect, and LESSEE will be obligated to pay, a late fee of two percent (2 %) of any such amount, if paid within thirty (30) days of the date due, and five percent (5 %) of any such amount, not paid within thirty (30) days of the date due. Such late fees will be in addition to the amount of rent due. The acceptance by the COUNTY of the overdue rental installment plus applicable late fees shall cure what would otherwise constitute a default by LESSEE under the terms of this lease. The COUNTY, at its option, however, may refuse a proffered overdue rental installment and late fees, declare a default, and proceed according to paragraph 4 of this lease. In the event that any check, draft, or negotiable instrument by which LESSEE has tendered any rent payment is returned to the COUNTY and not honored, whether for insufficient funds or other reason, the COUNTY will be entitled to charge and collect, in addition to any applicable late payment fees as provided above, a fee of Twenty -five Dollars ($25.00) for such dishonored instrument. Such penalty fee shall also be in addition to the amount of rent due. The acceptance by the COUNTY of the rental payment plus any applicable late fee and penalties following the receipt of a dishonored instrument shall cure what would otherwise constitute a default under the terms of this lease. The COUNTY, at its option, however, may refuse any proffered rental installment and applicable late fees and penalties, declare a default, and proceed according to paragraph 4 of this lease. 4. Termination. This Agreement may be terminated at the discretion of the LESSOR in the following circumstances: a. LESSEE fails to pay the rent when due; b. LESSEE fails to obtain the insurance required under this lease or allows the required insurance coverage to lapse or fall below the minimum required; C. LESSEE otherwise breaches the terms of this lease. Unless the LESSOR has accepted in writing a delay in performance of duties, the failure to perform said duties shall constitute a default under the terms of this agreement. In the case of default/breach, the County's Director of Facilities Maintenance shall first give the LESSEE a written notification stating the default/breach and that Lessee has 10 days to correct the default/breach. If the LESSEE has not commenced correction of the default /breach at the end of the 10 days, then the LESSOR may terminate the lease in its discretion. If it shall be necessary to employ the services of an attorney in order to enforce its rights under this Agreement, the LESSOR shall be entitled to reasonable attorney's fees. Waiver of a default in any particular month shall not bind the LESSOR to forego the provisions of this paragraph and any subsequent default shall be grounds for termination. 5. LESSEE'S OBLIGATION: LESSEE covenants and agrees: a. To pay the LESSOR the rent at the times and in the manner provided by this lease. b. To continue to maintain current City and County Occupational Licenses, as required, during the period of the lease. -2- c. That LESSEE's concession will not interfere with beach cleaning. d. LESSEE will conduct its operations in a businesslike manner at all times, and will keep the leased premises free of trash and debris left in the area of the concession by the public. e. All rental equipment will be maintained in good working condition. L Lessee agrees to recondition and maintain the line of floats which extends from near the beach to the ocean end of Reynolds Street Pier to keep the sailboats and sailboards separated from the swimming area for the period of this lease. g. To make no improper or offensive use of said premises, and to permit the LESSOR or its agents to inspect the leased premises at all reasonable times for the purpose of viewing the condition thereof. h. Beach hours are from 6:00 a.m. until 11:00 p.m. Business hours to be determined by agreement between LESSOR'S DIRECTOR OF FACILITIES MAINTENANCE and LESSEE. i. Premises, as a portion of Higgs Beach, are as evidenced by the attached drawing marked Exhibit A and numbered 1, 2, 3, 4, 5 and 6 which is attached hereto and made a part thereof in the Lease Agreement. j. This agreement is limited to rentals of beach chairs, umbrellas, kayaks, 14 and 16 foot sailboats, sunfish daysailers, snorkel equipment, longboards, and such other water related equipment. Lessee may also offer concierge services and sell local art, t -shirts and other similar souvenirs. NO OTHER SERVICE MAY BE PROVIDED WITHOUT THE WRTITEN CONSENT OF THE COUNTY. k. LESSEE shall procure and maintain Commercial General Liability insurance. Coverage must include $500,000 combined single limit. Monroe County Board of County Commissioners must be specifically included as an additional insured and certificate holder. 1. LESSEE shall obtain Worker's Compensation insurance with limits sufficient to respond to Florida Statute 440 or provide documentation to the County evidencing LESSEE's exemption. m. To comply with LESSOR's reasonable requests as to deployment and /or removal of LESSEE'S rental offerings. 6. LESSOR'S OBLIGATIONS: LESSOR covenants and agrees: a. LESSEE shall be permitted to maintain the rental booths for operation of the concession as depicted in Exhibit A numbers 2 and 5. Upon termination of this lease, LESSEE shall remove said structures and return the premises to the condition at the beginning of the lease term. Should LESSEE fail to remove the structures within thirty (30) days of lease termination, LESSOR shall have the right to remove said structures and charge LESSEE for the costs of removal, or to retain said structures for its own use. b. LESSOR is the lawful owner of the property demised hereby, that it has lawful possession thereof, and has good and lawful authority to execute this lease; and -3- e. Throughout the term hereof, LESSEE may have, hold and enjoy peaceful and uninterrupted possession of the premises and rights herein leased and granted, subject to performance by LESSOR or its obligation herein. d. To perform the initial installation of the line of floats which extends from near the beach to the ocean end of Reynold's street pier. 7. Books, Records and Documents LESSEE shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for four years following the termination of this Agreement. 8. Governing Law, Venue Interpretation Governing Law, Venue, Interpretation, Costs, and Fees: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. In the event that any cause of action e enforcement or interpretation of this Agreement, lie in the appropriate court or before the apps Florida. administrative proceeding is instituted for the the LESSOR and LESSEE agree that venue will )priate administrative body in Monroe County, The LESSOR and LESSEE agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. 9. Severability. If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining teens, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent pennitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The LESSOR and LESSEE agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 10. Attorney's Fees and Costs. The LESSSOR and LESSEE agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non - prevailing party, and shall include attorney's fees, courts costs, investigative, and out -of- pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. -4- 11. Binding Effect. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the LESSOR and LESSEE and their respective legal representatives, successors, and assigns. 12. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and corporate action, as required by law. 13. Claims for Federal or State Aid. LESSOR and LESSEE agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 14. Adjudication of Disputes or Disagreements LESSSOR and LESSEE agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. 15. Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, LESSOR and LESSEE agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. LESSOR and LESSEE specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 16. Nondiscrimination. LESSEE agrees that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. LESSEE agrees to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88 -352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss.1681 -1683, and 1685- 1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101 -6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92- 255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91 -616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as -5- amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. 17. Covenant of No Interest. LESSOR and LESSEE covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. 18. Code of Ethics. LESSOR agrees that officers and employees of the County recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 19. No Solicitation/Payment The LESSOR and LESSEE warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from Lhe award or making of this Agreement. For the breach or violation of the provision, the LESSEE agrees that the LESSOR shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 20. Public Access. The LESSOR and LESSEE shall allow and permit reasonable access to, and inspection of all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the LESSOR and LESSEE in conjunction with this Agreement; and the LESSOR shall have the right to unilaterally cancel this Agreement upon violation of this provision by LESSOR. 21. Assignment and Subletting It is agreed by the parties hereto that Lessee may elect to sub -lease or assign this Lease Agreement only upon written consent of the Monroe County Board of County Commissioners, which shall not be unreasonably withheld. All terms of this Lease Agreement shall be binding on the heirs, executors, administrators, sub - lessees and assigns of Lessee. 22. Non - Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the LESSOR and the LESSEE in this Agreement and the acquisition of any commercial liability insurance coverage, self - insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability W coverage, nor shall any contract entered into by the County be required to contain any provision for wai ver. 23. Privileges and Immunities. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the County, when performing their respective functions under this .Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 24. Notices: Any notice of communication from either party to the other pursuant to this agreement is sufficiently given or communicated if sent by Certified Mail, with proper postage fees prepaid, addressed to the party for whom intended, at the following address: LESSOR: Monroe County Administrator 1 100 Simonton Street Key West, Florida 33040 LESSEE: Tropical Watersports, LLC c/o Francis Gonzon 1002 Fleming Street Key West, Florida 33040 25. Legal Obligations and Responsibilities: Non - Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the County, except to the extent permitted by the Florida constitution, state statute, and case law. 26. Non - Reliance by Non - Parties. No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or program contemplated hereunder, and the LESSOR and the LESSEE agree that neither the LESSOR nor the LESSEE or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. 27. Attestations. LESSEE agrees to execute such documents as the LESSOR may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug - Free Workplace Statement. -7- 28. No Personal Liability. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 29. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. 30. Section Headings. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. 31. Federal, State and Local Law. The company shall comply with all federal, state, county and local laws, ordinances, rules and regulations now and hereafter in force which may be applicable to the operation of its business at the Clarence S. Higgs Memorial Beach, including the minimum standards for fixed base operators, as amended from time to time. 32. Mutual Review. This agreement has been carefully reviewed by LESSEE and LESSOR, therefore this agreement is not to be construed against either party on the basis of authorship. 33. Indemnification /Hold Harmless. Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, LESSEE shall defend, indemnify and hold the LESSOR and the LESSOR's elected and appointed officers and employees harmless from and against (i) any claims, actions or causes of action, and (ii) any litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, fine, penalty or business interruption, that may be asserted against, initiated with respect to, or sustained by, any indemnified party by reason of; or in connection with, (A) any activity of LESSEE or any of its employees, agents, contractors or other invitees during the term of this Agreement, (B) the negligence or willful misconduct of LESSEE or any of its employees, agents, contractors or other invitees, or (C) LESSEE's default in respect of any of the obligations that it undertakes under the terms of this lease, except to the extent the claims, actions, causes of action, litigation, proceedings, costs o- expenses arise from the intentional or sole negligent acts or omissions o;' the LESSOR or any of its employees, agents, contractors or invitees (other than LESSEE). Insofar as the claims, actions, causes of action, litigation, proceedings, costs or expenses relate to events or circumstances that occur during the term of this lease, this section will survive the expiration of the term of this lease or any earlier termination of this lease IN WITNESS WHEREOF, the parties have caused this lease to be executed this 15th day of April, 2009. .f .a s CANNY L. KOLHAGE, CLERK Deputy Clerk WI NE SES: BOARD OF COUNTY COMMISSIONERS OF MONR � E COUNTY, FLORIDA le- �)qdoft Mayor /Chairperson TROPICAL WATERSPORTS , LLC. By Telephone: PEDF10 J. I ASSISTANT COV DatG Q O - n mr-- h1 Cj C- -) cz) Cj Tir rn r— rn % O o In r e sKat ..�.{�►.�. 4�et�r f ( �0116AMSV Sar AP rropa G APAI% � St4ff 6$t7 STNA 444 0 r y * IDA � C.0 13 EXHIBIT "A" cn NorE. sA:ozw ` CD AR'L.h Slkxt t. t4 , T 'S Cq as J S rt AMI�:,R FRA MiS`W Gr AS AWALL P N cn NorE. sA:ozw ` CD AR'L.h Slkxt t. t4 , T 'S Cq �d $1L..iP►G.1�P C.�1��ut4f.'o h S rt AMI�:,R FRA MiS`W Gr AS AWALL to