Item C13County of Monroe
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BOARD OF COUNTY COMMISSIONERS
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Mayor David Rice, District 4
IleOI1da Keys
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Mayor Pro Tem Sylvia J. Murphy, District 5
Danny L. Kolhage, District I
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George Neugent, District 2
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Heather Carruthers, District 3
County Commission Meeting
May 16, 2018
Agenda Item Number: C.13
Agenda Item Summary #4141
BULK ITEM: Yes DEPARTMENT: Project Management / Facilities
TIME APPROXIMATE: STAFF CONTACT: Alice Steryou (305) 292 -4549
None
AGENDA ITEM WORDING: Approval of a Second and final lease agreement renewal for a two -
year period with Pamela Uslander for a mobile food concession at Higgs Beach.
ITEM BACKGROUND: The Lessee has timely requested the last renewal of her lease as provided
for in her original agreement. The County has also agreed to abate a portion of Lessee's rent for
September 2017 due to the closure of Higgs Beach from Hurricane Irma. The nondiscrimination
clause in the lease agreement is also being updated in this renewal document.
PREVIOUS RELEVANT BOCC ACTION:
January 16, 2014 BOCC held a discussion of having a mobile food vendor at Higgs Beach.
January 31, 2014 BOCC gave approval to advertise a Request for Proposals for mobile
vendors at Higgs Beach.
October 17, 2014 BOCC gave approval to negotiate with the highest ranked, responsive,
conforming respondent for a mobile food concession at Higgs Beach.
December 10, 2014 BOCC approved a bid award for a one (1) year Lease Agreement with
Pamela Uslander for a mobile food concession at Higgs Beach.
December 9, 2015 BOCC held a discussion whereas the Board agreed to consider an
extension of the Original Agreement for six (6) months in order to
evaluate Lessee's performance.
January 20, 2016 BOCC approved a six (6) month extension agreement.
May 18, 2016 BOCC approved the first of two (2) optional two -year period renewals.
CONTRACT /AGREEMENT CHANGES:
Contract will commence July 1, 2018, and terminate June 30, 2020; nondiscrimination clause
revised; and partial rent abatement for Sept 2017.
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
Second Lease Agreement Renewal - Pam Uslander Higgs Beach concession
Letter for request for renewal Uslander
Cert of Insurance 2018 -2019
Higgs Concession Pamela Uslander Lease Agreement Renewal
Higgs Pamela Uslander Lease Agreement Extension
Bid Award Lease Agreement Pam Uslander Higgs Beach
FINANCIAL IMPACT:
Effective Date: 07/01/2018
Expiration Date: 06/30/2020
Total Dollar Value of Contract: N/A
Total Cost to County: N/A
Current Year Portion: N/A
Budgeted: Yes
Source of Funds: N/A
CPI: No
Indirect Costs: N/A
Estimated Ongoing Costs Not Included in above dollar amounts: N/A
Revenue Producing: Yes
Grant: N/A
County Match: N/A
Insurance Required: Yes
Additional Details:
If yes, amount: $200 /month minimum
Revenue
h]X TA1 IH11."
Patricia Eables
Completed
05/01/2018 1:01 PM
Chrissy Collins
Completed
05/01/2018 1:12 PM
Kevin Wilson
Completed
05/01/2018 1:36 PM
Budget and Finance
Completed
05/01/2018 2:30 PM
Maria Slavik
Completed
05/01/2018 2:42 PM
Kathy Peters
Completed
05/01/2018 9:27 PM
Board of County Commissioners
Pending
05/16/2018 9:00 AM
SECOND LEASE AGREEMENT RENEWAL
FOR HIGGS BEACH CONCESSION
THIS SECOND LEASE AGREEMENT RENEWAL is made and entered into on the
16th day of May 2018, by and between MONROE COUNTY, a political subdivision of the State
of Florida, hereinafter referred to as "County" or "Lessor," and Pamela Uslander, hereinafter
referred to as "Lessee" or "Tenant;"
WHEREAS, the Lessor is the owner of the Clarence Higgs Beach Park, hereinafter
"Higgs Beach," that has space(s) available for mobile concessions; and
WHEREAS, on the 10th day of December 2014, Lessor entered into a Lease Agreement
for Higgs Beach Concession ( "Original Agreement ") with Lessee being granted the right to
operate a concession at Higgs Beach at Key West, Florida, for a term of one (1) year
commencing January 1, 2015, and terminating on December 31, 2015, and
WHEREAS, the Original Agreement allowed the Lessee to renew the lease for two (2)
additional two -year terms upon providing a request, in writing, at least sixty (60) days prior to
termination of the Original Agreement; and
WHEREAS, on January 20, 2016, the County extended the lease for six (6) months to
evaluate the Lessee's performance after the Lessee had fallen behind on the payment of the
required rental and fees; and
WHEREAS, Lessee became current on all payments and continued to perform well
during the evaluation period; and
WHEREAS, on May 18, 2016, the BOCC approved the first of two (2) optional two-
year term renewals; and
WHEREAS, the County has agreed to abate a portion of Lessee's monthly rental
payment for September 2017 due to Hurricane Irma closures; and
WHEREAS, the County desires to revise language in its contracts and /or agreements to
update the Nondiscrimination provision; and
WHEREAS, the Lessee has timely requested the second of the two (2) optional two -year
term renewals of her lease as provided for in the Original Agreement; and
WHEREAS, the parties have found the Lease to be mutually beneficial; and
WHEREAS, the parties desire to amend the Lease;
NOW, THEREFORE, IN CONSIDERATION of the premises and of mutual
covenants and promises hereinafter contained, the parties hereto do hereby agree as follows:
Section 1. Paragraph 4 of the Original Agreement is amended to read as follows:
4. Term - This lease agreement renewal will take effect on the 1 St day of July
2018, and will terminate on the 30 day of June 2020, unless terminated earlier under
another paragraph of the Original Agreement.
Section 2. Paragraph 5 (a) and (b):
Lessee pays a total monthly rental payment in the amount of One Hundred and 00 /100
($100.00) Dollars and in addition to the monthly rental payment, pays LESSOR five per
cent (5 %) of its total gross proceeds per month, plus sales and usage tax, or One Hundred
and 00 /100 ($100.00) Dollars whichever is greater. The County agrees to abate the total
monthly rental payment for September 2017 in the amount of One Hundred and 00 /100
($100.00) Dollars and accept only five per cent (5 %) of Lessee's total gross proceeds as
the additional percentage payment for that month due to the closure of Higgs Beach as a
result of Hurricane Irma damage.
Section 3, Paragraph 16 of the Original Agreement is amended to read as follows:
16. NON - DISCRIMINATION. The parties agree 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. The parties agree 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 VII of the Civil Rights Act of 1964 (PL 88 -352), which prohibit
discrimination in employment on the basis of race, color, religion, sex, and national
origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC §§ 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 § 794), which prohibits
discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as
amended (42 USC §§ 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, §§ 523 and 527 (42 USC §§ 690dd -3 and 290ee-
3), as amended, relating to confidentiality of alcohol and drug abuse patient records; 8)
Title VIII of the Civil Rights Act of 1968 (42 USC §§ 3601 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 §§ 12101), as amended from time to time, relating to
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nondiscrimination in employment on the basis of disability; 10) Monroe County Code
Chapter 14, Article II, which prohibits discrimination on the basis of race, color, sex,
religion, national origin, ancestry, sexual orientation, gender identity or expression,
familial status or age; and 11) any other nondiscrimination provisions in any federal or
state statutes which may apply to the parties to, or the subject matter of, this Agreement.
Except as set forth in Sections 1, 2 and 3, all other provisions of the December 10, 2014
Original Agreement, as amended, not inconsistent herewith, shall remain in full force and effect.
IN WITNESS WHEREOF, each party has caused this Second Lease Agreement Renewal
to be executed by a duly authorized representative.
(SEAL)
ATTEST: KEVIN MADOK, CLERK
Deputy Clerk
WITNESSES:
By: mm c r
1 t
Printed Name
Date
Printed Name Date
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
Mayor /Chairman
LESSEE: PAMELA USLANDER
By:
Title: Owner
MON E COUNTY ATTORNEY'S OFFICE
AP O,HED AS T FO M
PATRICIA EABLES
ASSISTANT COUNTY ATTOR Y
DATE �' °i
V�eryou-A lice
From: Wilson -Kevin
Sent: Wednesday, March 28, 2018 6:46 PM
Too Pamela Uslander
C c: Carruthers- Heather; Mercado- Pedro; Steryou- Alice; DeSantis- William; Eables- Patricia
Sub ject: RE: Letter of Intent -Higgs Beach
I received the ha cope of the ttach Frey Deice. I have forwarded this to she'ounte Attorn
a nd to the F viii ies office (Mr. tis) who wiU work o exe rcise of the two ar extension. i d
not beNeve we are able to modify the contract to extend for f ive years based on recent feedback fro
the County Attorney's office that such � rene w is /extensior� s cannot be done without a puiNic
s iici` Pion, You may be ware of simi� r recent request bra pother Higgs Beach vendor who was
advised that we r required to seek proposais. Uniess that guidance changes, y sho4-fld expect to
see a request for proposals M early 2020,
Kevin G. 'iNii , P.E.
Monroe a OUri y, FL (Rorida Keys)
1 02050 O verseas Highway
Key IL —arg , FL, , X03`1
is 305-292-4
� efl: 305-797-1547'
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• • •
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Su bject: Cc: Carruthers-Heather; Merc Letter • •• -.
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Pamela Uslande
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1 000 A tlantic
- West Florida 3304
M onroe County
Attenti ,
Sim onto n
Key West, Fl orida
WEEMEM
Please use this letter as n o f my request for ren ewal
Concession at Higgs Beach, 1000 Atlantic Blvd., Key West, Florida, 33040.
My Lease Agreement for Higgs Beach Concession will expire on June 30, 2018. 1 am current on all payments
and obligations and am requesting my additional (2) two year term upon this written request 60 days prior to
the termination of this renewal period which will take this Lease Agreement to June 30, 2020.
30, 2025. (Please also see the (8) eight email attachments)
Pamela Uslander
PAMELA! 02 112;
ACORO CERTIFICATE OF LIABILITY INSURANCE DATEIMMIDOPMYi
01/1112018
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE BOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING IN5URER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(les) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on
this certificate does not confer richts to the certificate holder in lieu of such endorsement(s).
PRODUCER
Dimond Bros. Insurance, LLC
188 Industrial Dr, # 238
Elmhurst, IL 60126
Michael J. Petrus, CIC
630 -782 -1717
5,
INSURED romn'd u721aIMUF
102 E Crest Avenue
Bensenville, IL 60106
Insurance
ACORD 25 (2016103) 0 1988 -2015 ACORD CORPORATION, All rights reserved.
The ACORD name and logo are registered marks of ACORD
LEASE AGREEMENT RENEWAL
FOR HIGGS BEACH CONCESSION
DIQ THIS LEASE AGREEMENT EXTENSION is made and entered into on the 18th day
of 2016, by and between MONROE COUNTY, a political subdivision of the State of
Florida, hereinafter referred to as County or Lessor, and Pamela Uslander hereinafter referred to
as Lessee or Tenant;
WHEREAS, the Lessor is the owner of the Higgs Beach Park, hereafter Beach, that has
space(s) available for mobile concessions; and
WHEREAS, on the 10th Day of December 2014 Lessor entered into a Concession
Agreement (Original Agreement) with Lessee granting the right to operate a concession at Higgs
Beach at Key West, Florida, and
WHEREAS, the Original Agreement allowed the Lessee to renew the lease upon
providing a request, in writing, at least 60 days prior to termination of the Original Agreement;
and
WHEREAS, on January 20, 2016 the County extended the lease for 6 months to evaluate
the Lessee's performance after the Lessee had fallen behind on the payment of the required
rental and fees; and
WHEREAS, Lessee became current on all payments and has continued to perform well
during the evaluation period; and
WHEREAS, the Lessee has timely requested a renewal of her lease as provided for in
her original Agreement; now, therefore
IN CONSIDERATION of the premises and of mutual covenants and promises
hereinafter contained, the parties hereto do hereby agree as follows:
Section 1. Paragraph 4 of the original Agreement is amended to read as follows;
4. Term - This lease agreement renewal will take effect on the 1 St day of July
2016, and will terminate on the 30 day of June 2018, unless terminated earlier under
another paragraph of the Original Agreement. The Original Agreement may be renewed
if Lessee has been current on all payments and obligations, at the County's discretion, for
(1) one additional (2) two year term upon written request by the LESSEE provided at
least 60 days prior to termination of this renewal period.
Except as set forth in Section 1, all other provisions of the December 14, 2014 Original
Agreement not inconsistent herewith, shall remain in full force and effect.
IN WITNESS WHEREOF, each party has caused this agreement to be executed by a
duly authorized representative.
ATTEST:
IC
Title:
BOARD OF C CAN' COMMISSIONERS
OF MONR DA
By_.
M or/ near
WITNESS:
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t
Y HEAVILIN, CLERK
LEASE AGREEMENT EXTENSION
FOR HIGGS BEACH CONCESSION
THIS LEASE AGREEMENT EXTENSION is made and entered into on the 20th day
of January 2016, by and between MONROE COUNTY, a political subdivision of the State of
Florida, hereinafter referred to as County or Lessor, and Pamela Uslander hereinafter referred to
as Lessee or Tenant;
WHEREAS, the Lessor is the owner of the Higgs Beach Park, hereafter Beach, that has
space(s) available for mobile concessions; and
WHEREAS, on the 10th Day of December 2014 Lessor entered into a Concession
Agreement (Original Agreement) with Lessee granting the right to operate a concession at Higgs
Beach at Key West, Florida, and
WHEREAS, the Original Agreement allowed the Lessee to renew the lease upon
providing a request, in writing, at least 60 days prior to termination of the Original Agreement;
and
WHEREAS, Lessee had fallen behind on the payment of the required rental and fees and
had failed to timely provide said written request and appeared before the County Commission at
its December 9, 2015 regularly scheduled board meeting; and
WHEREAS, Lessee became current on all payments prior to appearing before the Board
on December 9, 2015; and
WHEREAS, the Board agreed to a extend the Original Agreement for 6 months in order
to evaluate Lessee's performance; now, therefore
IN CONSIDERATION of the premises and of mutual covenants and promises
hereinafter contained, the parties hereto do hereby agree as follows:
Section 1. Term - This lease agreement extension will take effect on the lst day of January
2016, and will terminate on the 30 day of June 2016, unless terminated earlier under another
paragraph of the Original Agreement. This Original Agreement may be renewed if Lessee has
been current on all payments and obligations, at the County's discretion, for (2) two additional
(2) two year terms upon written request by the LESSEE provided at least 60 days prior to
termination of the extension period.
Except as set forth in Section 1, all other provisions of the December 14, 2014 Original
Agreement not inconsistent herewith, shall remain in full force and effect.
IN WITNESS WHEREOF, each party has caused this agreement to be executed by a
duly authorized representative.
(SEAL)
ATTEST: AMY HEAVILIN, CLERK
BOARD OF COU Y , MMISSIONERS
OF MONROE IDA
By
Mayo r •Ilairvn
ALICE R. SERM
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November 18, 2019
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LEASE AGREEMENT
FOR HIGGS BEACH CONCESSION
THIS LEASE AGREEMENT is made and entered into on the 1 040 day of
2014, by and between MONROE COUNTY, a political subdivision of the
State of Florida, hereinafter referred to as County or LESSOR, and Pamela Uslander, hereinafter
referred to as LESSEE or Tenant;
WHEREAS, LESSOR is the owner of Clarence Higgs Beach Park, hereafter Beach or
Premises, that has space(s) available for mobile concessions; and
WHEREAS, County advertised via the competitive solicitation process a Request for
Proposals (RFP) for Mobile Retail Merchandise and Food Concessions at Higgs Beach, through
which the LESSEE was deemed the highest ranked responsive, conforming bidder, and
WHEREAS, LESSOR desires to rant to LESSEE the right to operate a concession at
Higgs Beach at Key West, Florida, and
WHEREAS, LESSEE desires to enter into such a lease and represents to the LESSOR
that it is qualified to operate a concession and has the financial resources to undertake such an
operation; now, therefore
IN CONSIDERATION of the premises and of mutual covenants and promises
hereinafter contained, the parties do hereby agree as follows:
I. Premises - LESSOR hereby leases to LESSEE a mobile vendor space within the
boundary of Clarence Higgs Beach Park (Exhibit A) for use as a Concession. The mobile vendor
must park in a designated parking space at least 50 feet away from existing park vendors.
2, Lease Documents — The lease documents, of which this agreement is a part, consists of
the lease documents, which are as follows: This agreement and any amendments executed by the
parties hereafter, together with the RFP, the response to the RFP and all required insurance
documentation. In the event of a discrepancy between the documents, precedence shall be
determined by the order of the documents as just listed.
3. (a) The LESSEE will sell paletas, a frozen treat made from fruit and cream, via a
mobile trod cart. The County reserves the right to reject any items it finds inappropriate,
objectionable or not in the best interests of the County. LESSEE is permitted to employ
entertainment in the form of a tape /CD, IPod, or intereet sound system. Other forms of
entertainment may be permitted with the written consent of the Director, Public Works &
Engineering or his designee. Where permitted, no sound source shall be permitted that is so loud
that it emanates outside of the LFSSF,E's concession space.
(b) The LESSEE, must comply with all the applicable requirements of the statutes,
rules, ordinances, regulations, orders and policies of the federal, state, county and city
governments either in effect on the effective date of this lease or later adopted.
C.13f
(c) LESSEE shall be required to obtain Monroe County and City of Key West
Occupational Licenses before beginning operations. LESSEE shall also be responsible for
obtaining any additional licenses which may be required by LESSEE's operations at Higgs
Beach before beginning operations. A copy of all licenses must be provided to the County's
contract manager within 15 days of contract award.
(d) Notwithstanding anything herein contained that may be or appear to be, to the
contrary, it is expressly understood and agreed that the rights granted under this agreement are
nonexclusive and the LESSOR herein reserves the right to grant similar privileges to another
LESSEE or other LESSEE on other parts of Higgs Beach.
4. Term - This lease agreement will take effect on the I` day of January 2015, and
will terminate on the 31'` day of December 2015, unless terminated earlier under another
paragraph of this agreement. This lease may be renewed, at the County's discretion, for (2) two
additional (2) two year terms upon written request by the LESSOR, which will be provided at
least 60 days prior to termination of the lease.
5. Rental and Fees
(a) RENT: LESSEE agrees to pay LESSOR rent in the amount of $ 100.00 per month,
for retail concession space. Rental payments are due by the 1st day of the month for which the
rent is due.
(b) Percent ( %) GROSS TAXABLE SALES: In addition to the monthly rental payment,
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LESSEE agrees to pay LESSOR 5% of the annual gross revenues or a guaranteed minimum
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annual fee of $ 1,200.00 , whichever is greater, generated by LESSEE's operations. Annual gross
revenues are determined on a calendar year basis. A calendar year shall run from January 1st
through December 31 st inclusive. Payment of charges under this subparagraph shall be made in
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monthly installments. A statement, including proof of monthly revenue and a log documenting
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hours of operation, shall be provided by the LESSEE to the LESSOR each month. LESSEE shall
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remit the greater amount of either 5% of gross taxable sales or 1/12 of the annual guaranteed
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minimum ($ 100.00 ) monthly on an arrears basis. Payment shall be made no later than the 25th
day of the month payment is due, i.e. January payment by February 25, February by March 25,
etc. In the event the total amount paid during any calendar year period is less than the greater of
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the fees set forth in this contract, LESSEE shall remit the difference by February 28 of the year
subsequent to the calendar year for which the charge is due.
(c) LESSEE shall open the operation for business on January 1, 2015. ,\
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(d) LESSEE shall maintain all books, records, and documents directly pertinent to
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performance under this Agreement in accordance with generally accepted accounting principles
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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. An annual operating statement prepared by a Certified Public Accountant
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must be provided to the LESSOR on or before February 28 of the following year.
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(e) The LESSEE must pay all assessments, taxes, including sales taxes, levied by any
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governmental body with the power to impose assessments or taxes. The LESSEE must provide
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C.13f
the County with the sales tax records for each year on or before February 28 of the following
year.
(f) The LESSEE must provide all items and equipment needed for the operation
including, but not limited to: vehicle and /or mobile cart, shelving, display cases, tables, chairs,
refrigeration units, etc. LESSEE'S items and equipment must be removed from the premises at
the end of each day.
(g) Notwithstanding anything set forth in paragraph 9 of this agreement, if the
LESSEE fails to pay any rents or fees due under this lease within 15 days after the LESSOR
notifies the LESSEE in writing that the rent or charge is overdue, then the LESSOR may, in its
discretion, either immediately or later, expel the LESSEE and any persons claiming the premises
by or through the LESSEE, and remove any of the LESSEE's effects without being guilty of
trespass and without prejudice or waiver to any other available remedy the LESSOR might have
for the recovery of the rent or charges due from the LESSEE. Upon the LESSEE'S expulsion,
this lease will terminate. However, the LESSEE'S obligation to pay the rent or charges due will
survive the termination. Overdue rent and charges will accrue interest beginning on the 16th day
after the LESSEE was notified in writing by the LESSOR that the renter charges were overdue.
The interest rate will be that established by the Comptroller under Sec. 55.03, F.S., for the year
in which the rent or charge first became overdue.
6. The LESSEE agrees to furnish good, prompt and efficient service to meet all demands
for concession service at the Beach. The operation must be open for service 365 days per year
and will operate from 10:00 a.m. to sunset, as a minimum. The hours can be revised by mutual
consent. For purposes of setting up the concession in the morning and closing the concession in
the evening, LESSEE may arrive one half hour prior to, and depart no later than one half hour
after, the hours of operation. LESSEE'S MOBILE CONCESSION WILL NOT
OTHERWISE BE LOCATED ON HIGGS' BEACH FOR ANY REASON.
7. (a) The LESSEE must provide an adequate number of covered metal waste containers
at its operation. LESSEE shall provide separate containers for waste and for recyclables.
LESSEE must deposit all trash, waste and recyclables in those containers for proper disposition
of the waste and recyclables at the place designated by the LESSOR.
(b) No signs, advertising, or awnings may be erected by the LESSEE, unless they are
approved by the Director, Public Works & Engineering or his designee in writing.
(c) The LESSEE is responsible for the maintenance of the LESSEE's operation,
including the equipment used by LESSEE and/or offered for rental.
S. Except as otherwise provided herein, the LESSOR may cancel this agreement when,
after giving the LESSEE 30 days written notice that an act of default has occurred, the LESSEE
fails or cannot cure the following:
(a) The appointment of a receiver of the LESSEE's assets.
(b) The divestiture of the LESSEE's interest in the lease by court order or other
operation of law.
C.13f
(c) The LESSEE's abandonment of the operation. Failure to open the operation and
keep it open during the business hours described in this agreement for seven (7) consecutive days
shall constitute abandonment.
(d) The failure of the LESSEE to timely perform any of the obligations required of it
under this agreement.
No waiver of default by the LESSOR of any of the obligations required of the LESSEE
under this agreement may be construed as a waiver of any subsequent default of any of the
obligations that are required to be performed, kept or observed by the LESSEE. The LESSOR's
waiver of an act of default by the LESSEE is not a waiver of the right of the LESSOR to later
cancel this agreement because of the LESSEE's failure to subsequently perform an obligation or
obligations under this lease agreement. c
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9. If the LESSEE is not in default of its obligation to pay the rent and the charges, then
the LESSEE may cancel this agreement when, after giving the LESSOR 30 days written notice
of an act of default, the LESSOR fails or cannot cure, or fails to timely perform, the obligations
required of it under this lease agreement. Q
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10. (a) Before entering the premises, the LESSEE must obtain insurance in the amounts J
and according to the conditions described as follows:
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The LESSEE will be responsible for all necessary insurance coverage which includes, at un
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a minimum: o
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�lUwxlcQr -'-9 E�pc�}satie�— $1A9,99e l�edilTl�J>.�r� 13� �4s �
$500,000 Pedil, IPjary by B s polio limts; l � � y t3
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100,000 Bodily lt� ut-y
. _V..1.i e l l T:..1.'1'4 100 Gom bined sing mit
General Liability - $300,000 combined single limit v` w
Certificates of Insurance must be provided to Monroe County within fifteen days after x
award of proposal. If the proper insurance forms are not received within the fifteen days, 11\SI�
proposal may be awarded to the next selected respondent. LESSEE cannot begin operating until
Certificates of Insurance have been received by the County.
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The Monroe County Board of County Commissioners will be included as "Additional
Insured" on all policies, except workers compensation, issued to satisfy the above requirements.
All forms of insurance required above shall be from insurers acceptable to the County.
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All insurance policies must specify that they are not subject to cancellation, non- renewal, E
material change, or reduction in coverage unless a minimum of thirty days prior notification is
given to the County by the insurer.
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(b) The LESSEE must keep in full force and affect the insurance described during the
term of this agreement. If the insurance policies originally purchased that meet the requirements Q
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are canceled, terminated or reduced in coverage, then the LESSEE must immediately substitute
complying policies so that no gap in coverage occurs. J
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C.13f
(c) The insurance required of the LESSEE in this paragraph is for the protection of the
County, its property and employees, and the general public. The insurance requirement is not,
however, for the protection of any specific member of the general public who might be injured
because of an act or omission of the LESSEE. The insurance requirements of this paragraph do
not make any specific injured member of the general public a third party beneficiary under this
agreement. Therefore, any failure by the County to enforce this paragraph, or evict the LESSEE
if the LESSEE becomes uninsured or underinsured, is not a breach of any duty or obligation
owed to any specific member of the general public and cannot form the basis of any County
liability to a specific member of the general public or his/her dependents, or estate or heirs.
(d) Notwithstanding anything set forth in paragraph 9 of this agreement, the LESSOR
may treat the LESSEE in default if the LESSEE, after entering the premises but before beginning
its operation, does not have the insurance required by subparagraph II(a). Before the County
may terminate the agreement in this situation, the County must give the LESSEE a written notice
of the default stating that, if the required insurance is not obtained within ten (10) days of the
LESSEE's receipt of notice, then the County will cancel this agreement. The County may treat
the LESSEE in default and cancel this agreement if the LESSEE, after starting the operation,
fails to keep in full force and effect the insurance required by subparagraph I I(a). Before treating
the LESSEE in default and terminating the agreement in this situation, the County need only
provide the LESSEE 24 -hour notice by FAX or overnight courier. The County may, but need
not, provide LESSEE with an opportunity to cure the default.
11. Notwithstanding anything herein contained that may be, or appear to be, to the
contrary, it is expressly understood and agreed that the rights granted under this agreement are
nonexclusive and the LESSOR herein reserves the right to grant similar privileges to another
LESSEE or other LESSEES on other parts of the Beach.
12. At the end of this agreement (or any renewal), the LESSEE's right to the premises,
the use of Beach facilities, and any other right or privilege granted under this agreement ceases.
All equipment, improvements, furnishings and other property of the LESSEE at the premises are
personal to the LESSEE and remain the property of the LESSEE and must be removed by him.
The LESSEE must also restore the premise to its original condition, ordinary wear and tear and
damage by causes beyond the control of the LESSEE excepted.
13. LESSOR may enter upon the premises at any reasonable time, with advance notice,
for any purpose connected with the performance of the LESSOR's obligations under this
agreement or in the exercise of its governmental functions.
14. The LESSEE may not assign this agreement, or any part of it, or sublease the
premises, or any portion of the premises, without the written approval of the LESSOR. The
change of the LESSEE's status from an individual to a partnership or corporation is an
assignment under this paragraph requiring the LESSOR's approval. If the LESSEE is approved
to do business in the corporate form, any assignment of a controlling interest in the corporate
stock is also an assignment under this paragraph that requires the LESSOR's approval. All the
obligations of this agreement will extend to the legal representatives, successors and assigns of
the LESSEE and LESSOR.
15. Hold Harmless - Notwithstanding any minimum insurance requirements prescribed
elsewhere in this agreement, LESSEE shall defend, indemnify and hold the County and the
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County's elected and appointed officers and employees harmless from and against (i) any claims,
actions or causes of action, (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, and (iii) any costs or expenses 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 lease, (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 or expenses arise from the intentional or sole negligent acts
or omissions of the County 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.
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. LESSOR and
LESSEE agree 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 VII 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 amended, relating to confidentiality of alcohol and drug abuse
patient 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 may be amended from time to time, relating
to nondiscrimination based of disability; 10) Secs. 13 -101, et seq., Monroe County Code, relating
to discrimination based on race, color, sex, religion, disability, national origin, ancestry, sexual
orientation, gender identify or expression, familial status or age; 11) 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. 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 terms, 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 permitted 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. LESSOR and LESSEE agree to reform the Agreement to replace any stricken
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provision with a valid provision that comes as close as possible to the intent of the stricken
provision.
IS. Binding Effect - The terms, covenants, conditions, and provisions of this Agreement
shall bind and inure to the benefit of LESSOR and LESSEE and their respective legal
representatives, successors, and assigns.
19. 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.
20. Adjudication of Disputes or Disagreements - LESSOR 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 by Florida law.
21. 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.
22. 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 the only interest of each is to perform and
receive benefits as recited in this Agreement.
23. Code of Ethics - County 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.
24. No Solicitation/Payment - LESSOR and LESSEE warrant that, in respect to itself, it
has neither employed nor retained any company or person, other than a bona tide 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 the award or making of this Agreement. For the breach or violation of this
provision, LESSEE agrees that 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.
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25. Non - Waiver of Immunity - Notwithstanding the provisions of Sec. 768.28, Florida
Statues, 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
insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability
coverage, nor shall any contract entered into by the LESSOR be required to contain any
provision for waiver.
26. 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 LESSOR, when performing their respective functions
under this Agreement within the territorial limits of the LESSOR 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 LESSOR.
27. 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 LESSOR, except to the extent permitted by the Florida
Constitution, State Statute, and case law.
28. 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 LESSEE agree that neither the LESSOR nor 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.
29. 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.
30. 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.
31. 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 siding any such counterpart.
C.13f
32. Other Use - LESSEE shall not use or permit the use of the premises or any part
thereof for any purpose or use other than an authorized by this agreement.
33. Paragraph Headings - Paragraph headings herein are intended only to assist in reading
identification and are not in limitation or enlargement of the content of any paragraph.
34. Notices - Any notice of other communication from either party to the other pursuant
to this agreement is sufficiently given or communicated if sent by registered mail, with proper
postage and registration fees prepaid, addressed to the party for whom intended, at the following
addresses:
For LESSOR:
For LESSEE:
Patricia (Trish) Smith, AICP
Monroe County Public Works & Engineering Division Pamela Uslander
102050 Overseas Highway, Suite 212 102 E. Crest Avenue
Key Largo, FL. 33037 Bensenville, Ill. 60106
And
County Attorney
1111 12th Street, Suite 408
Key West, Fl. 33040
or to such other address as the party being given such notice shall from time to time designate to
the other by notice given in accordance herewith.
35. 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 or administrative proceeding is instituted for the
enforcement or interpretation of this Agreement, the LESSOR and LESSEE agree that venue will
lie in the appropriate court or before the appropriate administrative body in Monroe County,
Florida.
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.
36. Attorney's Fees and Costs - The LESSOR 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.
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37. Mutual Review - This agreement has been carefully reviewed by the LESSEE and the
LESSOR. Therefore, this agreement is not to be construed against either party on the basis of
authorship.
38. Final Understanding - This agreement is the parties' final mutual understanding. It
replaces any earlier agreements or understandings, whether written or oral. This agreement
cannot be modified or replaced except by another written and signed agreement.
IN WITNESS WHEREOF, each party has caused this agreement to be executed by a
duly authorized representative.
(SEAL)
ATTEST: AMY HEAVILIN, CLERK
ATTEST:
By: �GulG��6GiGt-
Title: GitY�
BOARD OF COUNTY COMMISSIONERS
OF M ROE COUNTY LORID
BY
LESSEE:
By
Pamela Uslander
Title: Owner d 1 1'
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