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Item R5 • • County of Monroe --e BOARD OF COUNTY COMMISSIONERS Mayor David Rice, District 4 The Florida Keys - Mayor Pro Tem Sylvia J. Murphy, District 5 : . Danny L. Kolhage, District 1 George Neugent, District 2 Heather Carruthers, District 3 County Commission Meeting • September 19, 2018 - enda Ite ri Numbe -LI 53 Agenda Item Summary #4727 REVISED BACKUP DAY OF MEETING:. Inserted executed second amendment; added letter sent to BOCC requesting a 2 month rent •• abatement; added language to Item Background and Staff Recommendation (underlined). 'BULK ITEM: Yes - DEPARTMENT: Facilities Maintenance • TIME APPROXIMATE: STAFF CONTACT: A lice Steryou (305) 292 -4549 • none AGENDA ITEM WORDING: Approval to abate the rent for September 2017 for 1000 Atlantic Boulevard, LLC (Salute Restaurant) due to the closure of Higgs .Beach from Hurricane Irma in amount of $8,671.81. • ITEM BACKGROUND: Higgs Beach was closed to the public in September 2017_ due to damages from Hurricane Irma and • the concessions at the beach were unable to operate during that time period. The Lessee, 1000 Atlantic. Boulevard, LLC, operating as Salute Restaurant, has requested an abatement of its monthly rental for September 2017 due to the closure of the beach by the County. • - The BOCC has previously abated the September 2017 rent for other concessions at the beach. This :Second Lease Agreement Amendment would abate Lessee's (Salute Restaurant) rent:for September: 2017 in the amount of $8,671.81 due to said closure. Lessee had already paid the September 2017 rent when it was due so this abated amount would be applied to a future monthly rental payment. Subsequent to publication of the agenda,- staff received a letter from the Lessee requesting a credit for two (2). months of rent abatement due to circumstances surrounding Hurricane Irma and this letter and the executed Second Amendment for the one .month abatement are now . attached as : additional backup herein. As noted above, the other concession owners were only given a one • month's rent abatement. • PREVIOUS RELEVANT BOCC ACTION: May 21, 2008 BOCC approved Original Lease. • October 15, 2008 BOCC approved the Consent and Assignment of Lease. • October 20, 2010 BOCC approved a Lease Extension Agreement extending the Term for ten (10) years with a termination date of August 1 2023. September 21, 2016 BOCC approved a First Lease Agreement Amendment with an increase to the Lessee's leasehold Premises by including in the Premises the previously excluded 115 square feet of storage area for the Higgs Beach restaurant (Salute) concession • • • CONTRACT /AGREEMENT CHANGES: Abate Rent for Salute at Higgs Beach September 2017 due to Hurricane Irma STAFF RECOMMENDATION: Approval of the Second Amendment for one month rent credit. DOCUMENTATION: EXECUTED Second Lease Agreement Amendment 9 -19 -18 (Legal stamped) Salute First Lease Agreement Amendment (9- 21 -16) SaluteLease Extension 102010 (executed) 10152008 Consent to Assignment of Lease 05212008 Lease Agreement 9/11/18 Letter to Commissioners requesting 2 months rent abatement FINANCIAL IMPACT: Effective Date: 09/01/2017 Expiration Date: N/A Total Dollar Value of Contract: N/A Total Cost to County: Credit on future rent in the amount of $8,671.81 Current Year Portion: N/A Budgeted: N/A Source of Funds: N/A CPI: N/A Indirect Costs: N/A Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: N/A If yes, amount: Grant: N/A County Match: N/A Insurance Required: N/A Additional Details: September 2017 was $8,671.81 N/A REVIEWED BY: Patricia Eables Completed 09/11/2018 4:20 PM Kevin Wilson Completed 09/11/2018 4:34 PM William DeSantis Completed 09/12/2018 7:10 AM Budget and Finance Completed 09/12/2018 11:43 AM Maria Slavik Completed 09/12/2018 11:45 AM Kathy Peters Completed 09/12/2018 11:47 AM Board of County Commissioners Pending 09/19/2018 9:00 AM SECOND LEASE AGREEMENT AMENDMENT HIGGS BEACH CONCESSION/RESTAURANT THIS SECOND LEASE AGREEMENT AMENDMENT is made and entered into on this 19th day of September, 2018, by and between Monroe County, a political subdivision of the State of Florida, whose mailing address is 1 100 Simonton Street, Key West, Florida 33040 ( "County" or "Lessor ") and 1000 Atlantic Boulevard, LLC, a Florida Limited Liability Company, whose mailing address is 729 Thomas Street, Key West, Florida 33040 ( "Tenant" or "Lessee"). WHEREAS, on May 21, 2008, the County and. Key West Hospitality, LLC, the predecessor in interest, entered into a Lease Agreement with a five (5) year term, which Lease included a Revised Exhibit "A" dated June 11, 1998, identifying the leased Premises ( "Lease ") and - WHEREAS, Key West Hospitality, LLC, the predecessor in interest, assigned all of its rights, title, and interest in the Lease to 1000 Atlantic Boulevard, LLC, pursuant to an Agreement for Purchase and Sale of Assets dated September 28, 2008 ( "Assignment "); and WHEREAS, the parties hereto did on the October 15, 2008, enter into a Consent to Assignment of Lease, whereby the Lessor agreed to the Assignment to 1000 Atlantic Boulevard, LLC ( "Tenant" or "Lessee "); and WHEREAS, the parties hereto did on October, 20, 2010, enter into. a Lease Extension Agreement extending the Term for ten (10) years with a termination date of August 11, 2023 ( "Extension "); and WHEREAS, the parties hereto did on September 19, 2016, enter into a First Lease Agreement Amendment which increased the Lessee's leasehold Premises by including in the Premises a previously excluded -115 square feet of storage area that had previously been leased to another entity, Tropical Watersports; and WHEREAS, the Lessee has requested and the County has agreed to _ abate Lessee's monthly rental payment for September 2017 due to Hurricane Irma closures; and WHEREAS, the parties have found the Lease to be mutually beneficial; and WHEREAS, both parties desire to amend the Lease, NOW, THEREFORE, 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. Pursuant to Paragraph 4, Rent, Maintenance Fee, Tax, of the Lease, Lessee paid Eight Thousand Six Hundred Seventy -one and 81/100 ($8,671.81) Dollars per month, effective as of August 12, 2017, for rent, applicable tax, and a maintenance fee, which included the =cost of the Lessor providing janitorial services and the opening and closing of the public restrooms. The County agrees to abate the total monthly rental payment for September 2017 in the amount of Eight Thousand Six Hundred Seventy -one and 81/100 ($8,671.81) Dollars due to 1 the closure of Higgs Beach as a result of Hurricane Irma damage. This total rental abatement amount set forth herein may be applied as a credit towards the future monthly rental payment due by Lessee. Section 2. In all other respects the terms and conditions of the Lease, as amended, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (SEAL) BOARD OF COUNTY COMMISSIONERS Attest: KEVIN MADOK, CLERK OF MONROE COUNTY, FLORIDA By:. By; Deputy /Clerk Mayor /Chairperson WITNESSES: 1000 AT . ■ • � �� IV O B BOULEV • D LLC Y= J y Sign ure Title: Managing Partner 17 t l� - 3br -, c /il 1[� inamie Date 1 644A.■ mgnature O l5Qi11 0 MONROE COUNTY ATTORNEY'S OFFICE Print Name Date APPROVED: AST F R PA ILIA FABLES ASSISTANT COUNTY t. DATE: 2 - '‘. ;,..), ., . • , !` AVILIN3 CPA CLERK OF CIRCUIT COURT & COMPTROLLER \ -•'''',%1 MONROE COUNTY, FLORIDA DATE: October 28, 2016 TO: Doug Sposito, Director Project Management ATTN: Alice Steryou FROM: Cheryl Robertson Executive Aide to the Clerk of Court & Comptroller Ug-- At the September 21, 2016 Board of County Commissioner's meeting the Board granted approval and execution of the following Item S1 Approval to increase the Lessee's leasehold Premises by including in the Premises the previously excluded 115 square feet of storage area for the Higgs Beach restaurant (Salute) concession. 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 . FIRST LEASE AGREEMENT AMENDMENT HIGGS BEACH CONCESSION/RESTAURANT THIS FIRST LEASE AGREEMENT AMENDMENT is made and entered into on thisa I* day of September, 2016 by and between Monroe County, a political subdivision of the State of Florida, whose mailing address is 1100 Simonton Street, Key West, FL 33040 ( "County" or "Lessor ") and 1000 Atlantic Boulevard, LLC, whose mailing address is 729 Thomas Street, Key West, Florida 33040 ( "Tenant" or "Lessee "). WHEREAS, on May 21, 2008, the County and Key West Hospitality, LLC, the predecessor in interest, entered into a Lease Agreement with a five (5) year term, which lease included a Revised Exhibit "A" dated June 11, 1998 identifying the leased Premises, a copy of which is attached hereto and made a part hereof ( "Lease "); and WHEREAS, Key West Hospitality, LLC, the predecessor in interest, assigned all of its rights, title and interest in the Lease, to 1000 Atlantic Boulevard, LLC pursuant to an Agreement for Purchase and Sale of Assets dated September 28, 2008 ( "Assignment "); and WHEREAS, the parties hereto did on the October 15, 2008, enter into-a Consent to Assignment of Lease, whereby the Lessor agreed to the Assignment to 1000 Atlantic Boulevard, LLC ( "Tenant" or "Lessee "); and WHEREAS, the parties hereto did on October, 20, 2010 enter into a Lease Extension Agreement extending the Term for ten (10) years with a termination date of August 11, 2023 ( "Extension "); and WHEREAS, Lessee has requested the use of an additional 115 square feet of storage area previously leased to Tropical Watersports; and WHEREAS, the parties now desire to increase the Lessee's leasehold Premises by including in the Premises the previously excluded 115 square feet of storage area, which is indicated with "hash marks" on the Revised Exhibit "A" dated June 11, 1998, a copy of which is attached hereto and made a part hereof and said storage area will now be included in the Premises as indicated on the HIGGS BEACH CONCESSION REVISED AUGUST 24th 2016, Exhibit `B ", 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, f NOW THEREFORE, 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 2, Premises, of the Lease is amended to read as follows: 2. Premises. County does hereby lease to Tenant, and Tenant does hereby lease from 6 County a portion of Clarence S. Higgs Memorial Beach, 1000 Atlantic Blvd., Key West, Monroe County, Florida, in it's as is condition. Square footage allocations shall be limited to the interior and enclosed patio area referenced in Exhibit `B" dated, August 24th 2016, a copy of which is 1 attached hereto and incorporated herein. Section 2. Paragraph 4, Rent, Maintenance Fee, Tax, of the Lease is amended to read as follows: 1 • 4. Rent, Maintenance Fee, Tax. The total monthly rental payment (hereinafter collectively known as "Rent "), shall include rent, applicable tax and a maintenance fee to include the cost of the Lessor providing janitorial services and the opening and closing of the public restrooms. The Rent for the Premises is $8,493.45 per month, beginning on October 1, 2016 and thereafter payable in advance on or before the first business day of each and every month. The monthly rent and monthly maintenance fee will be adjusted annually beginning with the first anniversary of the commencement of the lease term, and at every anniversary thereafter, by a percentage equal to the increase in the Consumer Price Index ( "CPP ") for all urban consumers ( "CPI -U") for the calendar year immediately preceding the anniversary date. Monthly Rent: $6,547.78 Monthly Maintenance Fee: $1,454.59 Monthly Applicable tax: • $ 491.08 TOTAL Rent: $8,493.45 Section 3. In all other respects the terms and conditions of the Lease, as amended, shall remain in full force and effect. • IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. /. `'" BOARD OF COUNTY COMMISSIONERS r••_ _ �% Y HEAVIL1N, CLERK OF MONROE COUNTY, FLORIDA ? 1 - = Z t - r. �� /O mil{/ QY! g �' \.-., epu ,l /Clerk Ma or /Chaff erson s G co r`K ill- S & r t ESSES: - 1000 ALI Boulevard, Signature Title: 1 e:: Managing Partner Print Name C7 jJ Signature ,�, 3 O "1 CD rn e. Print Name r r1 ,--) • N Y 2 r a This docum was pr ared and approved as to form by: � 7 " i 6 .rte ;-Ti t -,t, d c.Q q /dal ik C. Rene Rogers, Ei Date L o : y Assistant County Attorney Florida Bar No.: 0101178 P.O. Box 1026 Key West, FL 33041 -1026 (305) 292 -3470 2 1 • . . , . . • ..: -.--!-:::‘ .; ::--• 'Z..; • : • • . . • . .......-; : ... .. • . • . 1 . . 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Sqvgez- 51.F-1- . • 0 0 IA (2C- S 13 Ac.lk . . - „.... , S i i c>'- ri‘c.iirri . . 6:•Iloi• toad-to ...NA t.o.c..l...ge„:0 • Sttt. blzr, I 'i -In -9 8 Se-A11 1 /9" .. i 0" E -1 4.• 3 t•-..T ro sc.a.c.,.. otkr..› P;a04-4) , SiL.Tcs•I ES ..i .3 . ‘Z...• Ki..,- ("Re V ISE b 67/1 t A g ) \ . 1 . . . . .......... _ . . , %.* • •:' ' • . ...f. . . • • • • • .. ' • 1 • : - • .• • . j . . • . •• "•••• . . . . . . . EXHIBIT . • . ...... . . . . . . .. _. , • • . • i- . , . , . F• • . . . • . . - - - -•• - -•- -- • - HIGGS BEACH CONCESSION . . 4 :2'...r • %I.e.' • REVISED AUGUST 24TH 2016 • .,,,..7..... v. ,.. :••••"4"•■•440'0'..• MONROE COUNTY PROJECT • , ..‘ OUTSIDE DINING - . ,:•,„ MANAGEMENT 192 SF 0 * 1:er. •••• • "........-- f`' '...•- •"." %.:,1'::e/4 ...A: ' • : ....* .1 :.,...P'ell ? ' . ..11.•••:•: . ..:.:...- A, 7..4,:i, .::.• ... t. • l'e qt• 151;.. ...2,.•: ..% "'-...• 104!"...le.;.1.1 . 1.0 "' v • '• '-' ". •4: • • ''''; . 1•1 't i .:•.i' ..0.-4.....e. 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' .... -• , 1 II,... • • 1 0 ••• • ■• . • ?•itA L •.[ ..!:14.■••e• ?f.; S .F• Z 1 • . r . .• te . .. 1 IN e. l..1 . 1 .. 7:1 tr.•••• KITCHEN AREA 540.8 SF .., — ".4..7.-.. A • : % • -t A: 2e k. ' . \ • , 4 ,:r 311. • -0 ' 1.1•1 ,--8'-71,--8,AetN STORAGE .- 177 SF 177 SF ; ..,..• OFFICE 114.6 SF ,s,COOLER 115 SF -6.1 '!:! F SF • - ...... , V, l . 0 :, . • . a V x J .. v.. sy.,Ir.,(3.. 4 " r.... ? .. ......-:• :7... . . RI.: ::.: II.- .r.:!-X. %.?!. l _-; ::::- . .... 4 .;_.•••.:ri .e u.','•'.;.' %e t , 9 i ; ..% ; ..M.:•:..ciaq.:...;:t.''''.11:- ..,, •.: !..*•• . V .. ( II _aL • jii *..i.V.,..it : ADDITIONAL 115 SF TOTAL USABLE SF PREVIOUS: 3,928.3 • TOTAL USABLE TO INCLUDE 115 SF OF ADDITIONAL STORAGE: 4,043.3 SF ExHIBrr • 1 13 . • . BOARD OF COUNTY COMMISSIONERS C Mayoi S !y Ia J. Mu h Dtstrict.5 V ,, � ......°: ^ ��- � .-rte - Ma Pro I em Hea Carruthers . Dtstnet 3 . OUN� :.V � 11 ON ROE ++v.- iij Kim lY�eington District i KE W EST L/ FLORIDA 33640 � A •'"� �' Georga N*ugcnt District 3 . 005) .2g4. - �.� x - .: � Mar io_ DI Gentsaro Ris)rict 4 .. _ 1 U.. 4 ' - I , ' r Public Works Division = '�'' Facilities Maintenance Department 1100 Simonton Street, #2 -284 . - Key West.' FL 33040 �; N: Phone (3O )292<4549 _ _ Fax; (305 ) 2 95 -434 November: 0„20111 Mr.. Richard Hatch, Manager/Met : . 1000 Atlantic Boulevard, LLC 729. Thomas Street Kejr West, FL .3.3040. - . - RE: Lease Extension, Agreement Higgs Beach Cr ncession/Restaurant - :Salute Dear Richard; On 'October -3, 2010, the Monroe County Board of County Comittissioners apprcwed. a Lease Extension Agreement for °Salute. at Higgs Beach' Enclosed for your use is a fully executed Agreement. _ If you have any questions, please do not hesitate to c ■ntact.me. Sin :::, (--: ..• - : -.• 1 ‘,...._ . L : . . ! • (,, ,, e _ J ohn W Kin Senior Director, Lower Keys Operations ec; Dent Pierce, Division Director Public Works, . Beth Leto; Assistant Director, PublicWorks LEASE. EXTENSION AGREEMENT HIGGS I3EACII CONCESSION/RESTAURANT THIS LEASE EXTENSION AGREEMENT is made by and between Monroe County, a political: subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, FL 33040, hereafter "County" or "Lessor", and 1000 Atlantic Boulevard, LLC, whose address is 729 Thomas Street, Key West, FL, 330040 hereafter, "Tenant" or "Lessee" this 20th day of October, 2010. WHEREAS, on the 21st day of May 2008, the County and the predecessor in interest entered into a Lease agreement (hereafter original lease) for one (5) year term, copy of which is attached hereto and made a part hereof; and WHEREAS, the predecessor in interest, Key West Hospitality, LLC assigned all of its rights, title and interest in the Original Agreement to the Lessee, 1000 Atlantic Boulevard, LLC . pursuant to a contract for sale/purchase of the restaurant, copy of which is attached hereto and made a part hereof; and WHEREAS, by the terms of the original lease the Lessee is entitled to an extension of the lease upon completion of ADA modifications and other capital improvements; and WHEREAS, the Lessee has completed all of the ADA modifications required in the original lease; and WHEREAS, .the Lessee has also effected the additional capital improvements separate and apart from the ADA modifications that entitle the Lessee to an extension; and WHEREAS, Lessee submitted to County staff and County staff reviewed, verified and inspected all of the additional capital improvements; NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: 1. The term of the original lease is hereby extended 10 years and terminates on August 11, 2023. 2. In all other respects the terms and conditions of the original lease remain in full force and effect. 3. This lease extension will take effect on October 20, 2010. 1 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above Written. . (SEAL ,;. , � , ; BOA RD OF COUNTY COMMISSIONERS ATT T D {S j . �*. HAG, CLERK OF MONROE COUNTY, (FLORIDA 4 • - '' '' . 7.-'. 1 . °4* -4 AT 8. (1/1\-J,. 4/4"er-d- i,: Mayor /Chairperson 1000 ATLANTIC BOULEVARD,.LGC (70-L— t By /Cr Witnesses Title: or l- 4° (Ja/E - \/ . cE. f2eS/Dgivr This docu eat was prepared a + : :ovedas to form by: 6 ---ci.t 6 ' 4 1 1 " / / Ped J: Me ado, Esq. Date Assistant unty Attorney Florida Bar No.: 0084050 P.O. Box 1026 Key West, FL 33041-1026 (305) 292 -3470 2 . . ® GATE IMM/DDlYYY . - AR L C E RT IFI CA TE OF LIABILITY INSURANCE ..11/4/2010 PROnuc (305) - 04:94 FAX (3 0 5)743 -0582 THIS _CERTIFICATE. ISISSUED AS A'MATTER _ OF- INFORMATION; Keys 1 ai ragce' '8 i cel3, Inc. ONLY; AND'" CONFERS._ Na. RIGHTS, UPON THE CERTIFICATE • -., : , ' .HOLDER. THIS CERTIFICATE' DOES NOT AMEND, EXTEND . .OR 5800 .Overeeast ''HTay .843 E AFFORDED BY THE POLICIES "BELOW. P40: .Box 500280 f , ',LChI: ED I arathon FL. 330 -028 •,- - A - • DING COVERAGE' M NAIC INSURED INSURER -. L1 d8 of Landing . { IN UR A � 1000. Atlantic `Blvd LLC, DBA: Sa:,TSte':R'eetaur- . t:" i UDR" ' os itality .Mutual Ilse co • 7;9: . Thomas Street : INSURER C:' Key West FL 33090 �U NTY - - -- - COVERAGES L I[NT THE,POU,CIES OF INSURANCE: LISTED' BELOW HAVE: BEENISSUEO Tape INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTVNTHSTAN • ANY REQUIREMENT, TERM OR CONDITION OF ANY, CONTRACT OR .OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY. BE •ISSUED OR MAY PERTAIN THE INSURANCE A SY: THE POLICIES DESCRIBED HEREIN 15' SUBJECT TOALL THE TERMS EXCLUSIONS AND' CONDITIONS, OF'SU_CH r. POLICIE GGREGATE MAY HAVE BEEN REDUCED BY PAID CLAIMS: • ' _ • • I LT R HNSRD - T EPPJNSI1RANCE- -- - . POUCY..NUM9ER- �A ECy p �yY = D M A WDD EXPIRATION ! LIMR8 GENERAL LIABILITY - .EACH000URRENCE S:. 1, 00 _ 0, 0 00 i I 1 i INGSE- T0IFEHTE4 - 1 -_ - _ X - C MMLRCIALGENEf L LIABILITY pREMI$E$ 5Q 0ao _ • A I•.__ -: .... cIA;IMB`MADE , X,; OCCUR ;ARFIEs2981D 10/16 /2010 10/16/ t EXPAAnyaneparean) • $ %000 I PER S 1, ao (yip 0: . , . - . tt � . GENERAL AGGREGATE - I S - 2, 000, 000.. 1 GEN L AGGREGATE LIMR APPLIES PER' -; I . 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EACH ACCIDENT — _ $ 10 000 OFFICERNIEMBER EACLUDED) ; 1 '{Ncndatary INNH) WIC3060005a1Z2010 1/ 1/2010 1/1/2011 i.EL DISEASE- EAEMPLOYEEI $ _ 3.00,. ! yyee SPECIALPROVISIDNS..tiub*. 1 . . • . Et DISEASE- POLICYLIMIT ' .. 50 1 OTHER - - • . . D OPERATIONSI.LOCATLONS I VENICLES I EXCLUSIONS ADDED BY ENDORSEMENt PROVISIONS' • . - . CERTIFICATE:HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRI8EO.POVCIES'BECANCELLED BEFORE THE ERPIRATION . 'Monroe County' Board Of County ,CI3iiunitje'ione: DATE THE I1.INSURER WILL ENDEAVOR 70 MAIL 10 DAYS WRITTEN 1 . 0 Si. ,. . S t reet . N TO THE CE: E3pA TEHOLDERNAMEDTOTHE LEFT, BUTFAILURETO Soy WBBt:, FL 33090 • INPORE NO O •'..• ., • ; OR WIBILITY OF AMY kINO.UPON' THE,INSURER; ITS ACiSNT9 OR .. E RRESt • ..: g`.. • • .. .. A o , E E9= TATWE. 'ACORD: (2009101) ®:1988.2009 ACORD .CORPORATION. All :rightlt reset ed. INSO2S(z a+1 T" he ACORD ngme:and logo are 9 re iotered, marks •of:ACORD ire' ... • : . . Policy: Number 8704327.227:2010 !+#+r"T us a :n1 .cx,wnv.. • FLOOD, POLICY DECLARATIONS Liberty American Select Insurance '.compatiy :. A L -tE ,.- 0c- TA-v,Atir . • Type: Renewal • Td reperi a :claim call: ',(8,00) 755.-80.55 - Policy Period: 10/16/ To 10/16/ ;011: • These Declaratio are- effec : Form; General Property. as of 10/- 16 /2010_at 12:0'1 AM` 1 Produccr Name and Maihng Address : Insured: Name:. and: naiIingAddress: KBYS:INSURANCE SERVICE I : 1000 :ATLANI 8LVD ;LC . P O BOX 5 7 T HOMAS ST W MARATHON, FL 3 ; 02 80 K ET1 WEST, FL: 33040.7334 dt i A #:. 2921. Processed b R£ferPatCe #:08443 00;607 -;00;0 Flood Insurance Pioceseinci Ceinter . Phone #: (305.1143.0494. F. Box ;057 Xal.iapelJ. ;MT 59901 .205?. Insured Property Address: Coverage La7mltatlons May Apply, Refer to Your • ;' ... :2,000 ATLANTIC• . EBY _ WEST; FL. 33040 '4852.. FI - IYlSL2TanL`@ Policy for Dfitall$: • Q Building Deseriptioaas Premium. Pe i or• Insured. !Ion Residentz,a1 • y .. ... . . one. Floor . • r Rated Zone vE .. Current Zone:; slab' Oli Grade . . . Community Number 7.2 016 a 3. 516 tc : Tt R4iT : o , Community, Name; xE;Y ;WEST. CITY or . •Grandfathered. No Pr -Firm Construction Replaecement'Costt $96,250 Program Types Re4tiilar Nutmber of Units :. . Type Co veregie Ba Duct DiseOu dub Motel Premrsium Calgu1ation. m Building: , ,200 000 1 100` /_ 2.960... 5; o0n : : 287 . 300, Premiutm Sulgeint 5 ;:d63 . oo ca Contents 'is0,006. •2.140./. 4:7'00 _ 5000 225 50,215 ICCPremiumi :70. Al Contantii CIiS - Discount: 4 . ? Loa 'Lowa s;t 1?laar .QnlY Above o0 . Grauzid Level , - . . .. . as ,_ .. ',Federal Paiic y Fee; . ... 40.. 00 ts0- - Prabatfion :Suicharce: 00 • • .CV. - . Llsdot ameatAmount: o0 D.: .. Total;P m. P rennivaid: ; 5, 573. . U • . .. t M • First Mortgage: : : .. . ... Third Mortgage:, TIB. SANK . . MCNAOE COUNTY -BOCE: Pa; BOX 280'8 1300 SIMONTO4.9R • •-.. ..K LPPG4, BL 23017. .. KEY WE5T. FL' 3304_0.-174 p., . d .: 1 Second Mortgage: Fourth Mortgage: • • Ir O . _ . .. . • This Declaration; Page. in c•nnjunt'tion -with the policy Lon �tltutes your Flood Insurance Policy. I•n WITNESS: WliEREC)F. we havesigne i !hiti.policy below and herby, enter:int:o this litolrance . *r Pment. ,,,?/ Imo- a os3272ai2019 09/1;026iO T t s. -i-" n w,,. 4.,•. r 1 . r n �� ... . . 77 . 1W 2: THIS DECLARATION PAGE; WITH POI .ICY PROVISIONS - PART 1 AND ENDORSEMENTS, IF ANY 'SSW 1) TO FORM A PART THEREON, COMPL.EII: THR BELOW NUMBERED ( 1T12ENS PROPERTY MU/RANCH CORPORATION -POLICY, CITIZNS-PROPER INSURANCE CORPORATION, WIND ONLY POLICY 6676 Corptn,C■xitet Parimay, Jecksonvilk„ W32210-0973 44,Tif• INSURED NAME AND ADDRESt - OMENS THIS IS A PVIIV•t•IN 1000 ATLANTIC, BOULEVARD, LTC GENERAL BUSINESS: 729 TEJO/4AS ST KEY WEST, FL 33040 I C Y TEKM 10/16/2010 ' 10/16/2011 AT 1703 A.M: MST! CLTI;ENS L*LICY NO 1473301 . . INCEPTION DATE ExPIRAT/ON DATE This is your Polk)? Dklatadon Page - This IS not a Bill DO NOT PAY PAGE .2 AMOUNT Of INSURANCE Percent:. of Item DIOUPTIBIZS 'Coinsurance Terricnry Pr.emitiPL Bullninq contents Applivable $ MORTGAGEE/LOSS PAYEES; TIP BANK OF THE FL 'KEYS ISAOA P 0 BOX 2 8 0 REY LARGO,. 'EL 33037 LOAN #141419529156 2 MONROE COUNTY BQQC (.LOSS PAYEE) 1100 SIMONTON ST KEY WEST, EL 33040 . . • Total Coverage: Payment Finn:- Total Prenilum: • . . Subject to Form Not); OIT CP2 01 10 CNRW 01 10 01 10 C IT 18 1 8 01 10 Mortgagee/Lops ray4e:, . a • - Agent: Payor: KEYS INS ZERVICES,, 5017 INSURED P.O. BOX -500280 . MARAT.H014', FT. 33050 Date: 9 /13/.2.010 (305 ) 743=0494 c.q 01 10 , 50176 Team 3 mmixsliceE coPY. -02 QSY R . 40.111 81 mow Pat 2, THIS4I)I:GLARA1ION:RAti1i,:WITH IV L.I PK(iV[SIONS- PART 11 ANY ISSUP-I)TD• tO RNA " A PAIITTHI TI-113 3UMHI ?R1 ?I) CITl71 NS PROPI.RTY INSURANCE CORPORATION POLICY. - • CITIZEN PROPERTY INSURANCE CORPORATION ONLY : POLICY - . 667c Corporat CftcT-Perk'way, 7acksonvi11c, FIord3A32Z16 -6 IN SUAEO•.IinME nND• 4004E34 : 4 CITIZENS - • . THIS IS A. " 1000. ATLANTIC BOULEVARD, LLC GENERAL:" BUSINES 72.9 THOMAS ST KEY .WEST; EL 3'3.040 . Po!.ict :-TERM 1'.0/16'/2010 TO 1:0116/2011 • "' AT 12: pt A M: (EST) _C1TXZENS fOLICT NO:: 1 -3,3Q1 - >,nCaFrloia DATE EXPIRATIOM :DATE Tlhis'Is your P Desinrntiaa Page :- T6is:i4 not a BUJ -:P0 NOT PAY .. PBrCerir; of, .. .. PAGE 1 l' em C � a� 's Tatt1 Cary Pt,e UUflf no Su!Intnq .Contents ApplSCab:e 1. 351,1)00 .: 80 1'0: 530.: T-86 2, 38:1: • 150,00 80.' 4,500 T -86 933 ONE STORY" MASONRY .RESTAURANT...BLPG • - CONTENTS, NOT TO INCLUDE :FABRIC CANOPYLOC ::• • • 1000 ATLANTIC: ;BLVD:" :KEY " WEST, ,' : MONROE FL. :33040 . 2 5 "8.,.040 0 . . - - - .00 L,7 T -86 :: . : 39:3" • ONE STORY .MASONRY RESTAURANT :AUXIL -BLD "• :• • rti.. • • - - a 6, : : • - f ., .077 , i. .,.. , : A . : ,. , • ' : ,,. :H., _, 1 - - . .. - `6y1, ,I. 67, -0)c.,i, . - f t., .i. ,• , .,,,, • 1 • . " a . u Total Covets ge: " $559,0 - Papmeat Plan: • toll Pa T P remium: 54,4 • • • Premium Amount 53 , .7 07 20 C Rixens Propert Insta • llmcriency Assessment 552 ,� • Tax §urchargc . 565 2005 Honda Hurricenc Cala¢tiophtrti nd l:FHL1) Iimcrgcary. Asicistncnt $.37 ' c ' . . . . . . . . . . . . . $:5S 6 ' �> • 2067, Florida Giticaatct: c. tiiiararity :Aasoc:iailan "Rcgultir Asst sanicnt : $16 " . . 20091 lnsurancc tituitgnty Asaccl altua RegulaiiAssesmncnt - S3 "6 • M: Subl ect.'t. I karra •ha ts) t• : ... ... . . Mar egagee7Loes'Payee: • MORTGAGEE / LOSS 'PAYEES LIST ON ADUITIONAL PAGE' " . .49eat7 -' Favor:: - • : . . KEYS INS .SERVIC I,NC. 5017: . INSURED. . P .0: Eidk 50029 MRRATHON•, FL - 33050. . : Date:: 9/ 13%2010 -- (305 7430491 . 0.4' 0.01 -giik • 01 10 50176 Team 3 . • ' MORTGAGEE COPY -02 cis) R 4f1.1:1 0(I • CONSENT TO ASSIGNMENT OF LEASE This Consent to Assignment is entered into this � C j day of OCioVJe4( , 2008, by and between Monroe County, a political subdivision of the State of Florida, hereafter "County /Lessor ", Key West Hospitality, LLC, hereafter "Assignor /Lessee ", and 1000 Atlantic Boulevard, LLC, hereafter "Assignee ", the parties agreeing as follows: 1. The County /Lessor leases approximately 3,928 square feet of restaurant space at Higgs Beach, Key west, Florida, through a Lease Agreement dated May 21, 2008, hereafter the original Lease Agreement, commencing August 12, 2008, and terminating on August 11, 2013, unless the Lease_ is extended up to a maximum of ten . (10) years with certain Americans with Disabilities Act ( "ADA ") modifications and capital improvements having been completed pursuant to Lease Agreement. The original agreement is attached and incorporated into this Consent to Assignment. 2. Paragraph 8 of the Lease Agreement provides that the Lessee may elect to sub -lease or assign the Lease Agreement only upon the previous written consent of the Board of County Commissioners for Monroe County. 3. The Assignor and Assignee have entered into an Agreement for Purchase and Sale of Assets dated September 28, 2008, of the restaurant business which agreement includes an assignment to Assignee of all the Assignor's rights, title and interests in the Lease Agreement. 4. In consideration for such consent, the Assignee agrees to be bound by all the terms and conditions of the original Lease Agreement, including the obligation of Assignor /Lessee to complete certain modifications required to comply with the "ADA" pursuant to a Stipulated Settlement in Case No. 08 -10007 filed in the United States District Court as incorporated in paragraph 3(i) of the Lease Agreement. 5. The Lessor, Monroe County, agrees to the assignment of the Lease Agreement from Key West Hospitality, LLC, to 1000 Atlantic Boulevard, LLC. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the date first above written. BOARD OF COUNTY COMMISSIONERS ATTESTA13. CLERK OF MONROE COUNTY, FLORIDA • , . • BY: ..0"'344*...,j1 B : Deputy" 'e!` Mayor Mario Di Gennaro (SEAL) KEY WEST HOSPITALITY, INC. 1000 =ntic Bo levard, LLC Lessee /Assignor Assi. - - JI BY;�� �_ ✓" BY: ' .1 FRA∎CIS .o. ZON RICHARD HA CH -nage• ■ember Manager /Member ['.. C N M . + C3t9UNTV • O . 1f IP ED J. 1 ERCADO LC= ASSISTANT CO 4 NTY ATTORNEY 1 /, 6/0„.. o U p Date LEASE AGREEMENT HIGGS BEACH CONCESSION/RESTAURANT THIS LEASE AGREEMENT is made by and between Monroe County, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, FL 33040, hereafter "County" or "Lessor ", and Key West Hospitality, LLC, whose address is 1002 Fleming Street, Key West, Fl., 330040 hereafter, "Tenant" or "Lessee" this � day of , 2008. WHEREAS, on the 12th day of August 1998, the County and the predecessor in interest entered into a Lease agreement, for one (5) year term, with an option to renew for one additional (5) year term hereafter referred to as "Original Agreement ", copy of which is attached hereto and made a part hereof; and WHEREAS, the County and the predecessor in interest subsequently entered into lease amendments dated February 10, 1999, July 21, 1999, September 20, 2000, May 16, 2001, October 17, 2001, July 17, 2002, May 19, 2004 and July 14, 2004, copies of which are attached hereto and made a part hereof; and WHEREAS, the July 17, 2002 amendment amended the renewal term of the Original _ Agreement and now provided the predecessor in interest with an option to renew the Original Agreement for two additional (5) year terms; and WHEREAS, the predecessor in interest exercised his initial option to renew the Original Agreement and the County and the predecessor in interest entered into a Renewal Agreement dated July 15, 2003, copy of which is attached hereto and made a part hereof; and WHEREAS, the predecessor in interest assigned all of his rights, title and interest in the Original Agreement to the Lessee pursuant to a contract for sale /purchase of the restaurant; and WHEREAS, the County entered into a Consent To Assignment Of Lease dated April 20, 2005, copy of which is attached hereto and made a part hereof; and WHEREAS, an American with Disabilities Act (hereafter ADA) complaint has been filed against the Lessee citing ADA deficiencies on the leasehold premises at 1000 Atlantic Blvd., Key West, Florida; and WHEREAS, under the terms of the original agreement the Lessee agreed not to make any major alterations to the building located on the lease hold without first obtaining approval from the County; and WHEREAS, the current renewal term expires on August 11 2008, and the Lessee has informed the County of the Lessee's intent to exercise the Lessee's 2" renewal option; and 1 WHEREAS, the Lessee has agreed to effect all of the ADA modifications at Lessee's cost and proposes to make additional capital improvements at leasehold premises at Lessee's costs; and WHEREAS, Lessee is seeking an additional term of years beyond the 2 renewal option in exchange for effecting additional capital improvements separate and apart from the ADA modifications; and WHEREAS, Lessee and County find that, for purposes of clarity, it would be mutually beneficial to enter into a new Lease and terminate Lessee's current Lease along with all amendments and renewals entered pursuant thereto; NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: 1. Mutual Termination of Existing Lease. The parties mutually agree to cancel their August 12, 1998 original Lease Agreement, February 10, 1999, July 21, 1999, September 20, 2000, May 16, 2001, October 17, 2001, July 17, 2002, May 19, 2004, amendments and July 15, 2003 renewal agreement effective August 11, 2008, with neither party having any further duty, obligation or liability to the other under the terms of the above listed documents. 2. Premises. The County does hereby lease to Tenant and Tenant leases from the County, a concrete building now situated on Clarence S. Higgs Memorial Beach, 1000 Atlantic Blvd., Key West, Monroe County, Florida, in its as is condition. Square footage allocations shall be limited to the interior and enclosed patio area referenced in Exhibit "A" attached hereto and incorporated herein. 3. Term and Effective Date. Lessor does hereby grant to the Lessee the exclusive right and privilege of operating and maintaining a full service concession/restaurant at Clarence S. Higgs Memorial Beach, Key West, Monroe County, Florida, for a term of five (5) years commencing August 12, 2008 and terminating on August 11, 2013 unless extended in accordance with the terms set forth in subsection ii) below. i)Within the first year of the lease term, Lessee agrees to make the following modifications, at Lessee's cost, pursuant to the Stipulated Settlement Agreement in ADA case # 08 -10007 filed in the United States District Court, Southern District of Florida: a) Modify the main entrance to the restaurant by installing a proper ramp in order to eliminate the change in level. b) Install proper signage to indicate the accessible entrances to the restaurant, patio area and accessible bathroom. c) Install proper door hardware on all entrance and public doors. d) Provide accessible tables in all dining areas and bar area with proper signage indicating accessible tables. e) Provide an accessible route from the bar /restaurant area to the restaurant restrooms including the addition of a ramp or deck to provide a level surface for access. f) Modify the existing women's restroom to make a unisex accessible restroom which will require changes to the door entrance, pathway within, fixture modifications and proper signage. g) Establish appropriate employee training policies. h) Maintain all accessible features in the future. 2 i) Ensure any future modifications, alterations, or changes are in compliance with the ADA. j) Request Lessor provide an additional disabled parking space along with proper striping and signage of the accessible parking space creating an accessible route to the restaurant and relocating bicycle racks to prevent encroachment into the accessible route. ii)Upon completing the ADA compliance modifications listed above, Lessee anticipates completing additional capital improvements estimated to cost $1 25,000 as listed below; a) Update all electrical and plumbing in the building to bring it in compliance with all current code requirements. b) Remove and replace the outside patio deck area to level the floor with the main dining room floor. c) Revamp and replace the roof over the outside patio deck area to create a more substantial roof surface. d) Remodel and enlarge the stall areas of the restaurant restrooms to make both accessible and in compliance with the ADA rather than having only one unisex accessible restroom which is proposed for installation in 2008 -2009. If Lessee has previously completed all ADA modifications listed in subsection i) a-j, Lessee shall be entitled to extend the lease two additional years for every $25,000 spent on capital improvements listed in subsection ii) a — d up to a maximum of 10 years. All improvements listed in subsection ii) must be completed by August 12, 2012 unless extended by mutual agreement. Upon providing proof, in the form of material invoices, construction contracts, etc., to the Director of Facilities Maintenance as to the total amount spent on • capital improvements listed in subsection ii) a -d, the parties will enter into an amendment extending the term of the Lease Agreement 2 years for every $25,000 in capital improvement. 4. Rent. Maintenance Fee, Tax. The total monthly rental payment (hereinafter collectively known as "rent "), shall include rent, applicable sales tax and a maintenance fee to cover the cost of the Lessor providing janitorial services and the opening and closing of the public restrooms. The initial rent for the Premises including the maintenance fee and applicable sales tax is $7,334.94 per month, payable in advance on or before the first business day of each month. The rent will be adjusted annually beginning with the first anniversary of the commencement of the lease term, and at every anniversary thereafter, by a percentage equal to the increase in the CPI for all urban consumers (CPI -U) for the calendar year immediately preceding the anniversary date. 5. 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 Lease Agreement. In the case of default/breach, the County's Director of Facilities 3 Maintenance shall first give Lessee a written notification stating the default/breach and that Lessee has ten (10) days to correct the default/breach. If the Lessee has not corrected the default/breach at the end of the ten (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 Lease 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. 6. Lessee Covenants. Lessee covenants and agrees as follows: A. To keep open such concession/restaurant Monday- Sunday, including holidays, from 7:00 A.M. — 11:00 P.M., and shall not exceed the established beach hours as specified in Monroe County Ordinance 13.5- 3(2)(E). Hours of operation may be modified by mutual agreement. B. To furnish the necessary equipment, furnishings and fixtures needed to operate the concession/restaurant. All moveable equipment and furnishings shall remain the property of the Lessee and may be removed from the premises by Lessee at the termination of this lease agreement, with Lessor's consent. If Lessee fails to remove said moveable equipment or furnishings within ten (10) days after termination of this lease, said items shall then become the property of the Lessor. C. Lessee shall maintain a City and County occupational license during the period of this lease. D. Lessee agrees to keep the leased premises in a safe, clean and well - maintained order at no expense to the Lessor. This provision is to be monitored by the Director of Public Facilities Maintenance or his representative. E. Lessee agrees to operate its business in a business like manner. 7. Lessor Covenants. In connection with the above demised premises, the Lessor covenants with the Lessee that conditioned upon Lessee's performance and observance of Lessee's covenants herein, Lessee shall have quiet enjoyment and peaceable possession of the premises during the term of this Lease. In the event the County elects to maintain and/or improve its properties in the vicinity of the leasehold herein, either by necessity, or by choice, such activity will not be considered as a breach of any covenant of this lease. Lessor further covenants and, at its cost, agrees: a) to provide proper striping and signage of the accessible parking space and to provide a second accessible parking space adjacent to the current accessible parking space in conjunction with the accessible route to the restaurant. b) relocate the bicycle racks to prevent encroachment into the accessible route leading to any accessible entrance to the restaurant. c) to establish a policy of enforcement if cars are improperly parked to notify the car owner or have the vehicle towed pursuant to F.S. Sec. 316.1955(1)(a) 8. Assignment. 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. The terms of this Lease Agreement shall be binding on the heirs, executors, administrators, sub - lessees and assigns of Lessee. 4 9. Mechanic's Liens, Lessor's Rights. It is hereby covenanted, stipulated and agreed by and between the parties hereto that: A. there shall, during said demised term, be no mechanic's liens placed upon the concession/restaurant or improvements thereto. B. in case of any attempt to place a mechanic's lien on the leasehold premises, the Lessee must pay off same. C. if default in payment thereof shall continue for thirty (30) days after written notice, Lessor shall have the right and privilege, at its option, to pay off any mechanic's lien or any portion thereof and the amount so paid, including expenses, shall, at Lessor's option, be designated as additional rent due from Lessee at the next rent due date after such payment, with interest calculated at the rate established by the Comptroller under Sec. 55.03, Fla. Stat., for the year in which the payment became overdue. Nothing in this section is to be read as a waiver or authorization by the County of its constitutional and statutory immunity and right to have its property free of such liens. 10. Sale of Alcoholic Beverages, Alcoholic beverages may be sold within the enclosed restaurant and patio area only upon acquisition and maintenance of proper licenses from local, state and federal agencies. No carry-out sales of alcoholic beverages is permitted. Sales and consumption of alcoholic beverages must cease by 11:00 P.M. 11. Entertainment. Entertainment may be provided only in the enclosed restaurant and patio area. Any entertainment must be acoustic soft background music and must cease by 11:00 P.M. 12. Licenses. Lessee shall be responsible for and provide all licenses required by all local, state and federal agencies including the Department of Health. 13. Premises to be Used For Lawful Purposes. It is expressly covenanted between the parties hereto that the Lessee will not use, suffer nor permit any person to use in any manner whatsoever the leasehold property, nor any portion thereof, for purposes calculated to injure the reputation of the leasehold property or of the neighboring property, nor for any purpose or use in violation of the laws of the Untied States, or of the State of Florida, or of the Ordinances of Monroe County or the City of Key West, Florida. Lessee will keep and save the Lessor forever harmless from any penalty or damage or charges imposed for any violation of any said laws, whether occasioned by neglect of Lessee and Lessee will indemnify and save and keep harmless the Lessor against and from any loss, cost, damage, and expense arising out of any accident or other occurrence, causing injury to any person or property whomsoever or whatsoever, and due directly or indirectly to the use of the leasehold premises or any part thereof by Lessee. 14. Limitation of Lessor's Liability. It is further agreed that in no case shall the Lessor herein be liable, under any express or implied covenants in the Lease Agreement, for any damages whatsoever to the Lessee beyond the rent reserved by the Lease Agreement accruing, for the act, or breach of covenant, for which damages may be sought to be recovered against said Lessor, and that in the event said Lessee shall be ousted from the possession of said property by reason of any defect in the title of said Lessor or said Lessor's authority to make this lease agreement, said Lessee shall not be required to pay rent under this lease agreement while he is so deprived of said property, and that said Lessor shall not incur any liability as a result of such ouster. 5 15. No Waiver of Breach. It is further mutually covenanted and agreed between the parties hereto that no waiver of a breach of any of the covenants of this lease agreement shall be construed to be a waiver of any succeeding breach of the same covenant. 16. Observance of County Rules and Regulations. The Lessee hereby covenants and agrees that he, his agents, employees or otherwise shall observe and obey all lawful rules and regulations which may from time to time during the term hereby promulgated and enforced by the Lessor at the beach. 17. County's Right of Entry. The Lessor reserves the right hereunder to enter upon the premises at any reasonable time during normal operating hours for the purpose of inspecting said premises to determine whether Lessee has complied and is complying with the terms and conditions of this Lease Agreement. The Lessee hereby agrees to keep the premises at all times in a clean and sanitary condition, and not to maintain or keep upon said premises any properties or equipment not used in connection with the operation of said business, unless authorized by the Lessor to do so. 18. Leasehold Improvements. The Lessee agrees not to make any major alterations to the building located on said premises, without first obtaining written consent of the Lessor to do so, which will not be unreasonably withheld. Such alterations shall be based on plans approved by the Director of Facilities Maintenance and shall be subject to all City and County code provisions governing construction. Lessee shall be responsible for obtaining any permits required by any government agency. All site improvements shall be pre- approved by the Monroe County Board of County Commissioners. 19. Leasehold Maintenance. During the term of this lease, Lessee is responsible for all maintenance and repairs, including major repairs such as structural work and roof replacement and replacement of the building if destroyed. All repairs and replacement must be of the same or better quality as the original work and conform to all applicable building codes. Lessee shall be responsible for and shall properly maintain the leased premises, and upon the termination of this lease, shall leave the premises in at least as good condition as at the time of the commencement of this lease, normal use and occupancy excepted. The Lessee will keep the premises clean at all times and must meet all requirements for food handling as required by the Monroe County Department of Health. 20. Responsibilty for Property on Leasehold. All property of any kind that may be on the premises during the term of this Lease Agreement shall be at the sole risk of the Lessee. The Lessor shall not be liable to the Lessee or any other person for any injury, loss or damage to property or person on the premises. 21. Damage to Leasehold. In the event that the demised premises, or a major part thereof are destroyed by fire, storm, or any other casualty, the Lessor at its option and without assuming Lessee's responsibilities under Section 19 "Leasehold Maintenance ", may forthwith repair the damage to such structure at its own cost and expense. The rental thereon shall cease until the completion of such repairs and the Lessor will immediately refund the pro rata part of any rentals paid in advance by the Lessee prior to such destruction. Should the premises be only partly destroyed, so that the major part thereof is usable by the Lessee, then the rental shall abate to the extent that the injured or damaged part bears to the whole of such premises and such injury 6 or damage shall be restored by the Lessor as speedily as is practicable and upon completion of such repairs, the full rental shall commence and the Lease shall then continue the balance of the term. If Lessor exercises its option to repair the premises, Lessee agrees to assign its right to the insurance proceeds to the Lessor. If insurance proceeds exceed the costs of repair, the Lessor will, at its option, either remit the excess funds to the Lessee or apply the excess funds as a credit towards Lessee's next due monthly rental payment. If repair costs exceed the insurance proceeds, Lessee agrees to pay Lessor within 30 days for any and all costs of repair not covered by insurance proceeds. 22. Rights Reserved. Rights not specifically granted to Lessee by this Lease Agreement are reserved to the Lessor. 23. Rights of County. The Lessor shall have the absolute right, without limitation, to repair, reconstruct, alter or add to any structure or facility at Higgs Beach, or to construct new facilities at Higgs Beach. The Lessor shall, in the exercise of such right, be free from any and all liability to the Lessee for business damages occasioned during the making of such repairs, alterations and additions, except those occasioned by the sole act of negligence of the Lessor, its employees or agents. 24. Indemnification /Hold Harmless. Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, Lessee shall defend, indemnify and hold Lessor and the Lessor'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 (including, without limitation, costs of remediation in connection with a violation of any federal, state, or local law or regulation, attorneys' fees and costs, court costs, fines and penalties) 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 on the leasehold premises 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 Agreement, 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 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 Agreement, this section will survive the expiration of the term of this lease or any earlier termination of this Lease Agreement. 25. Insurance Requirements. Lessee shall obtain and maintain at it's own expense the insurance coverages listed in exhibit B. 26. Books, Records and Documents. Lessee shall maintain all books, records, and documents directly pertinent to performance under this Lease Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Lease Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Lease 7 Agreement for public records purposes during the term of the Lease Agreement and for four years following the termination of this Lease Agreement. 27. Governing Law, Venue, Interpretation: This Lease 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 Lease 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 Lease 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. 27. Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. Any amendment to this Lease Agreement shall be in writing, approved by the Board of County Commissioners, and signed by both parties before it becomes effective. 28. Severability. If any term, covenant, condition or provision of this Lease 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 Lease Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Lease 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 Lease Agreement would prevent the accomplishment of the original intent of this Lease Agreement. The Lessor and Lessee agree to reform the Lease Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision.. 29. Attorney's Fees and Costs. The Lessor and Lesse 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 Lease 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. 30. Binding Effect. The terms, covenants, conditions, and provisions of this Lease Agreement shall bind and inure to the benefit of the Lessor and Lessee and their respective legal representatives, successors, and assigns. 31. Authority Each party represents and warrants to the other that the execution, delivery and performance of this Lease Agreement have been duly authorized by all necessary County and corporate action, as required by law. 8 32. 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 Lease Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 33. 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 Lease Agreement or by Florida law. _ 34. Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Lease 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 Lease Agreement or provision of the services under this Lease Agreement. Lessor and Lessee specifically agree that no party to this Lease Agreement shall be required to enter into any arbitration proceedings related to this Lease Agreement. 35. Nondiscrimination. Lessor and Lessee 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 Lease 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 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 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 may be amended from time to time, relating to nondiscrimination on the basis of disability; 10) Sections 13 -101, et seq., Monroe County Code, relating to discrimination based on race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity 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 Lease Agreement. 9 36. 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 Lease Agreement, and that the only interest of each is to perform and receive benefits as recited in this Lease Agreement. 37. Code of Ethics. Lessor agrees that officers and employees of the Lessor 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. 38. 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 Lease 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 Lease Agreement. For the breach or violation of the provision, the Lessee agrees that the Lessor shall have the right to terminate this Lease 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. 39. 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 Lease Agreement; and the Lessor shall have the right to unilaterally cancel this Lease Agreement upon violation of this provision by Lessee. 40. Non - Waiver of Immunity. Notwithstanding the provisions of Sec. 286.28, Florida Statutes, the participation of the Lessor and Lessee in this Lease 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 coverage, nor shall any contract entered into by the Lessor be required to contain any provision for waiver. 41. 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 Lease 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. 42. Legal Obligations and Responsibilities: Non - Delegation of Constitutional or Statutory Duties. This Lease 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 Lease Agreement is not 10 intended td, 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. 43. Non- Reliance by Non - Parties. No person or entity shall be entitled to rely upon the terms, or any of them, of this Lease 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 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 Lease Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Lease Agreement. 44. 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. 45. 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 Lease Agreement or be subject to any personal liability or accountability by reason of the execution of this Lease Agreement. 46. Execution in Counterparts. This Lease 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 Lease Agreement by signing any such counterpart. 47. Section Headings. Section headings have been inserted in this Lease Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Lease Agreement and will not be used in the interpretation of any provision of this Lease Agreement. 48. Mutual Review. This Lease agreement has been carefully reviewed by Lessee and Lessor, therefore this Lease agreement is not to be construed against either party on the basis of authorship. • 11 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above sv5i1ten. ;', ' 2 , --:.•,•;:=, ,.;:‘*:'.. -*1 ‘,. \ g., (SEAL) "i„: : .....1- :,,_:. BOARD OF COUNTY COMMISSIONERS ATTES 4,. ." i;,: CLERK OF MONROE COUNTY, FLORIDA \. "• -* * - s1 1 2;: 10* ;2' / By D • • uty Clerk Mayor/Chairperson KEY WEST Horryt_,i ) ...--- , ' et ‘ . a...1. BY , Witnesses Title. M. f agin .61:pr ,1 This document was prepared and a proved as to form by: C■ ,1 , , O ilir i i 57 W 0 S' Pe s ro J. 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V- ,,.,e.,_ "Re v ISEb 4.„fIi /g EXHIBIT . . 4 r 20115 Edit MONROE COUNTY, FLORIDA RISK MANAGEMENT POLICY AND PROCEDURES CONTRACT ADMINISTRATION MANUAL Genera! Insurance Requirements for Organizations /Individuals Leasing C Owned Property Prior to the Organization or Individual taking possession of the property owned by the County, or commencing its concessionaire operations, the Organization /Individual shall obtain, at his /her own expense, insurance as specified in the attached schedules, which are made part of this lease /rental agreement. The Organization/Individual will not be permitted to occupy or use the property until satisfactory evidence of the required insurance has been furnished to the County as specified below. The Organization/Individual shall maintain the required insurance throughout the entire term of this lease /rental agreement and any extensions specified in the attached schedules. Failure to comply with this provision may result in the immediate termination of the lease /rental agreement and the return of all property owned by the County. The Organization/Individual will be held responsible for all deductibles and self insured retentions that may be contained in the Organization/lndividual's Insurance policies. The Organization/Individual shall provide, to the County, as satisfactory evidence of the required insurance, either: • Certificate of Insurance or • A Certified copy of the actual insurance policy. The County, at its sole option, has the right to request a certified copy of any or all insurance policies required by this contract. All insurance policies must specify that they are not subject to cancellation, non - renewal, material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. The acceptance and/or approval of the Organization/lndividual's insurance shall not be construed as relieving the Organization/Individual from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of County Commissioners, will be included as "Additional Insured" on all policies. They will also be named as "Loss Payee" with respect to Fire Legal Exposure. Administration instruction #4709.6 EXHIBIT 29 Es 2005 Edition Any deviations from these General Insurance Requirements must be requested in writing on the County prepared form entitled "Request for Waiver of Insurance Requirements" and approved by Monroe County Risk Management. Administration Instruction • 84709.6 30 2005 Edition ALL RISK PROPERTY INSURANCE REQUIREMENTS FOR LEASES /RENTALS OF COUNTY -OWNED PROPERTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization/Individual taking possession of the property govemed by this lease /rental agreement, the Organization/Individual shall obtain All Risk Property Insurance (to include the perils of Flood and Wind) with limits no less than the Replacement Cost Value of the property Ieased or rented. Coverage shall be maintained throughout the life of the Lease /Rental Agreement and include, as a minimum, liability coverage for: Fire Lighting _ Vandalism Sprinkler Leakage Sinkhole Collapse Falling Objects Windstorm Smoke Explosion Civil Commotion , Aircraft and Vehicle Damage Flood The Monroe County Board of County Commissioners shall be named as Additional Insured and Loss Payee on all policies issued to satisfy the above requirements. Administration instruction #4704.6 31 2005 Edition GENERAL LIABILITY INSURANCE REQUIREMENTS FOR LEASE/RENTAL OF PROPERTY OWNED BY THE COUNTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization /Individual taking possession of the property governed by this lease/rental agreement, the Organization/Individual shall obtain General Liability insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum: • Premises Operations • Products and Completed Operations • Blanket Contractual Liability • Personal Injury Liability • Expanded Definition of Property Damage • Fire Legal Liability (with limits equal to the fair market value of the leased property.) The minimum limits acceptable shall be: • $300,000 Combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: $100,000 per Person $300,000 per Occurrence $ 50,000 Property Damage An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective date of this contract. In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the termination of the Lease /Rental Agreement. The Monroe County Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. • Administration Instruction 32 04709.6 2005 Edition VEHICLE LIABILITY INSURANCE REQUIREMENTS FOR LEASES/RENTALS OF COUNTY -OWNED PROPERTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization/Individual taking possession of the property governed by this lease /rental agreement, the Organization/Individual shall purchase Vehicle Liability Insurance. Coverage shall be maintained throughout the life of the Lease /Rental Agreement and include, as a minimum, liability coverage for: • Owned, Non - Owned, and Hired Vehicles • Physical Damage Protection (if the leased property is a County -owned vehicle) • The tninimum limits acceptable shall be: $300,000 Combined Single Limit (CSL) • ACV for Physical Damage If split limits are provided, the minimum limits acceptable shall be: $ 100,000 per Person $ 300,000 per Occurrence S 50,000 Property Damage ACV for Physical Damage The Monroe County Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. In addition, if the lease /rental agreement involves County -owned vehicles, the Monroe County Board of County Commissioners shall be named as "Loss Payee" with respect to the physical damage protection. • Administration Instruction 33 #4704.6 LIQUOR LIABILITY INSURANCE REQUIREMENTS 1996 Edition FOR CONTRACT BETWEEN MONROE COUNTY, FLORIDA AND lic Recognizing that the work governed by this contract involves l'cy shall include Liquor with limits beverages, the Contractor's General Liability In policy equal to those of the basic coverage. A separate Liquor Liability policy is acceptable if the coverage is no more restrictive than the Contractor's General Liability policy. The Monroe County Board of County Commissioners will be included as Additional Insured if a separate Liquor Liability policy is provided. • GLLIQ Administration Instruction 59 #4709.2 September 11 2018 Dear Monroe County Board of Commissioners, Thank you for the opportunity to operate Salute at Higgs Beach. Salute would like a credit for two months of rent because of Hurricane Irma. We closed Salute on September 7 when mandatory evacuation was ordered. The Atlantic Blvd. road signs stayed up until Saturday, October .7t. We reopened Salute on October 1", but there was little business as the road closed signs were up. We lost part of our office roof and had water damage and mold in the office which we have. repaired. Note: The Special Olympics Paddle board event on October 15t at Higgs Beach (good for business) was moved to Smathers Beach because Higgs Beach was closed. Further, the beach was full of seaweed for a long period of time. Along with the pier being closed, the beach attracted fewer visitors than last year up to Christmas. Thank you for listening to our request. Sincerely, 1 a /6 Richard Hatch Suanne Kitchar Proprietor Proprietor: C ounty of M onroe {f `° " rel BOARD OF COUNTY COMMISSIONERS n Mayor David Rice, District 4 The FlOnda Key y m 1 �� Mayor Pro Tem Sylvia J. Murphy, District 5 Danny L. Kolhage, District 1 George Neugent, District 2 Heather Carruthers, District 3 County Commission Meeting September 19, 2018 Agenda Item Number: R.5 Agenda Item Summary #4727 BULK ITEM: Yes DEPARTMENT: Facilities Maintenance TIME APPROXIMATE: STAFF CONTACT: Alice Steryou (305) 292 -4549 none AGENDA ITEM WORDING: Approval to abate the rent for September 2017 for 1000 Atlantic Boulevard, LLC (Salute Restaurant) due to the closure of Higgs Beach from Hurricane Irma in amount of $8,671.81. ITEM BACKGROUND: Higgs Beach was closed to the public in September 2017 due to damages from Hurricane Irma and the concessions at the beach were unable to operate during that time period. The Lessee, 1000 Atlantic Boulevard, LLC, operating as Salute Restaurant, has requested an abatement of its monthly rental for September 2017 due to the closure of the beach by the County. The BOCC has previously abated the September 2017 rent for other concessions at the beach. This Second Lease Agreement Amendment would abate Lessee's (Salute Restaurant) rent for September 2017 in the amount of $8,671.81 due to said closure. Lessee had already paid the September 2017 rent when it was due so this abated amount would be applied to a future monthly rental payment. Subseauent to Dublication of the aizenda_ staff received a letter from the Lessee reauestiniz a credit for two (2) months of rent abatement due to circumstances surrounding Hurricane Irma and this letter and the executed Second Amendment for the one month abatement are now attached as additional backuD herein. As noted above. the other concession owners were only given a one month's rent abatement PREVIOUS RELEVANT BOCC ACTION: May 21, 2008 BOCC approved Original Lease. October 15, 2008 BOCC approved the Consent and Assignment of Lease. October 20, 2010 BOCC approved a Lease Extension Agreement extending the Term for ten (10) years with a termination date of August 11, 2023. September 21, 2016 BOCC approved a First Lease Agreement Amendment with an increase to the Lessee's leasehold Premises by including in the Premises the previously excluded 115 square feet of storage area for the Higgs Beach restaurant (Salute) concession CONTRACT /AGREEMENT CHANGES: Abate Rent for Salute at Higgs Beach September 2017 due to Hurricane Irma STAFF RECOMMENDATION: Approval of the Second Amendment for one month rent credit DOCUMENTATION: EXECUTED Second Lease Agreement Amendment 9 -19 -18 (Legal stamped) Salute First Lease Agreement Amendment (9- 21 -16) SaluteLease Extension 102010 (executed) 10152008 Consent to Assignment of Lease 05212008 Lease Agreement 9/11/18 Letter to Commissioners requesting 2 months rent abatement FINANCIAL IMPACT: Effective Date: 09/01/2017 Expiration Date: N/A Total Dollar Value of Contract: N/A Total Cost to County: Credit on future rent in the amount of $8,671.81 Current Year Portion: N/A Budgeted: N/A Source of Funds: N/A CPI: N/A Indirect Costs: N/A Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: N/A If yes, amount: Grant: N/A County Match: N/A Insurance Required: N/A Additional Details: September 2017 was $8,671.81 N/A REVIEWED BY: Patricia Eables Completed 09/11/2018 4:20 PM Kevin Wilson Completed 09/11/2018 4:34 PM William DeSantis Completed 09/12/2018 7:10 AM Budget and Finance Completed 09/12/2018 11:43 AM Maria Slavik Completed 09/12/2018 11:45 AM Kathy Peters Completed 09/12/2018 11:47 AM Board of County Commissioners Pending 09/19/2018 9:00 AM THIS SECOND LEASE AGREEMENT AMENDMENT is made and entered into on this 19th day of September, 2018, by and between Monroe County, a political subdivision of the State of Florida, whose mailing address is 1100 Simonton Street, Key West, Florida 33040 ("County" or "Lessor") and 1000 Atlantic Boulevard, LLC, a Florida Limited Liability Company, whose mailing address is 729 Thomas Street, Key West, Florida 33040 ( "Tenant'" or "Lessee"). WHEREAS, on May 21, 2008, the County and Key West Hospitality, LLC, the predecessor in interest, entered into a Lease Agreement with a five (5) year term, which Lease included a Revised Exhibit "A" dated June 11, 1998, identifying the leased Premises ("Lease"); and WHEREAS, Key West Hospitality, LLC, the predecessor in interest, assigned all of its rights, title, and interest in the Lease to 1000 Atlantic Boulevard, LLC, pursuant to an Agreement for Purchase and Sale of Assets dated September 28, 2008 ("Assignment"); and 'WHEREAS, the parties hereto did on the October 15, 2008, enter into a Consent to Assignment of Lease, whereby the Lessor agreed to the Assignment to 1000 Atlantic Boulevard, LLC ("Tenant" or "Lessee"); and WHEREAS, the parties hereto did on October, 20, 2010, enter into a Lease Extension Agreement extending the Term for ten (10) years with a termination date of August 11, 2023 ("Extension"); and WHEREAS, the parties hereto did on September 19, 2016, enter into a First Lease Agreement Amendment which increased the Lessee's leasehold Premises by including in the Premises a previously excluded 115 square feet of storage area that had previously been leased to another entity, Tropical Watersports; and WHEREAS, the Lessee has requested and the County has agreed to abate Lessee's monthly rental payment for September 2017 due to Hurricane Irma closures; and WHEREAS, the parties have found the Lease to be mutually beneficial; and WHEREAS, both parties desire to amend the Lease, NOW, THEREFORE, 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. Pursuant to Paragraph 4, Rent, Maintenance Fee, Tax, of the Lease, Lessee paid Eight Thousand Six Hundred Seventy-one and 81/100 ($8,671.81) Dollars per month, effective as of August 12, 2017, for rent, applicable tax, and a maintenance fee, which included the cost of the Lessor providing janitorial services and the opening and closing of the public restrooms. The County agrees to abate the total monthly rental payment for September 2017 in the amount of Eight Thousand Six Hundred Seventy-one and 811100 ($8,671.81) Dollars due to the closure of Higgs Beach as a result of Hurricane Irma damage. This total rental abatement amount set forth herein may be applied as a credit towards the future monthly rental payment due by Lessee. Section 2. In all other respects the terms and conditions of the Lease, as amended, shall remain in full force and effect, IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (SEAL) Attest KEVIN MADOK, CLERK M Deputy/Clerk lF 11 11 Fill'ilil 111111 11 lill i � I MWIM0 -40 M41 INWA29811NION Mayor/Chairperson Title: Managing Partner N AMY REAVILIN, CPA CLERK OF CIRCUIT COURT &COMPTROLLER MONROE COUNTY, FLORIDA DATE: October 28, 2016 TO: Doug Sposito, Director Project Management ATTN: Alice Steryou FROM. • Cheryl Robertson Executive Aide to the Clerk of Court & Comptroller CC At the September 21, 2016 Board of County Commissioner's meeting the Board granted approval and execution of the following Item S 1 Approval to increase the Lessee's leasehold Premises by including in the Premises the previously excluded 115 square feet of storage area for the Higgs Beach restaurant (Salute) concession. 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 FIRST LEASE AGREEMENT AMENDMENT HIGGS BEACH CONCESSION /RESTAURANT THIS FIRST LEASE AGREEMENT AMENDMENT is made and entered into on thia I gi— day of September, 2016 by and between Monroe County, a political subdivision of the State of Florida, whose mailing address is 1100 Simonton Street, Key West, FL 33040 ( "County" or "Lessor ") and 1000 Atlantic Boulevard, LLC, whose mailing address is 729 Thomas Street, Key West, Florida 33040 ( "Tenant" or "Lessee "). WHEREAS, on May 21, 2008, the County and Key West Hospitality, LLC, the predecessor in interest, entered into a Lease Agreement with a five (5) year term, which lease included a Revised Exhibit "A" dated June 11, 1998 identifying the leased Premises, a copy of which is attached hereto and made a part hereof ( "Lease "); and WHEREAS, Key West Hospitality, LLC, the predecessor in interest, assigned all of its rights, title and interest in the Lease, to 1000 Atlantic Boulevard, LLC pursuant to an Agreement for Purchase and Sale of Assets dated September 28, 2008 ( "Assignment "); and WHEREAS, the parties hereto did on the October 15, 2008, enter into a Consent to Assignment of Lease, whereby the Lessor agreed to the Assignment to 1000 Atlantic Boulevard, LLC ( "Tenant" or "Lessee "); and WHEREAS, the parties hereto did on October, 20, 2010 enter into a Lease Extension Agreement extending the Term for ten (10) years with a termination date of August 11, 2023 ( "Extension "); and WHEREAS, Lessee has requested the use of an additional 115 square feet of storage area previously leased to Tropical Watersports; and WHEREAS, the parties now desire to increase the Lessee's leasehold Premises by including in the Premises the previously excluded 115 square feet of storage area, which is indicated with "hash marks" on the Revised Exhibit "A" dated June 11, 1998, a copy of which is attached hereto and made a part hereof and said storage area will now be included in the Premises as indicated on the HIGGS BEACH CONCESSION REVISED AUGUST 24th 2016, Exhibit `B ", 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 THEREFORE, 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 2, Premises, of the Lease is amended to read as follows: 2. Premises County does hereby lease to Tenant, and Tenant does hereby lease from County a portion of Clarence S. Higgs Memorial Beach, 1000 Atlantic Blvd., Key West, Monroe County, Florida, in it's as is condition. Square footage allocations shall be limited to the interior and enclosed patio area referenced in Exhibit `B" dated, August 24th 2016, a copy of which is attached hereto and incorporated herein. Section 2. Paragraph 4, Rent, Maintenance Fee, Tax, of the Lease is amended to read as follows: 4. Rent, Maintenance Fee, Tax. The total monthly rental payment (hereinafter collectively known as "Rent "), shall include rent, applicable tax and a maintenance fee to include the cost of the Lessor providing janitorial services and the opening and closing of the public restrooms. The Rent for the Premises is $8,493.45 per month, beginning on October 1, 2016 and thereafter payable in advance on or before the first business day of each and every month. The monthly rent and monthly maintenance fee will be adjusted annually beginning with the first anniversary of the commencement of the lease term, and at every anniversary thereafter, by a percentage equal to the increase in the Consumer Price Index ( "CPI ") for all urban consumers ( "CPI -U ") for the calendar year immediately preceding the anniversary date. Monthly Rent: $6,547.78 Monthly Maintenance Fee: $1,454.59 Monthly Applicable tax: 491.08 TOTAL Rent: $8,493.45 Section 3. In all other respects the terms and conditions of the Lease, as amended, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first written. HEAVILIN, CLERK Jerk /0- Lk-AV 71` -- -- Signature PG tL L, Print Name Signature Print Name BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA B Mayor /C hairperson, Hea4 /// uthefs Geo 1000 A� Boulevard, Title: Managing Partner � . - , .J W. j4a. fJ This docum was pr ared and approved as to form by: / r q i a- i C. Rend Rogers, E . Date Assistant County Attorney Florida Bar No.: 0101178 P.O. Box 1026 Key West, FL 33041 -1026 (305) 292 -3470 3 �= az o N � O C_ CO CD I b- V17 0. So-FT- 940.1 sq-T-7. 2 SQ - FV. ATc.-L poa. i m — -------- I Q' 10 Awvt FT 8 - 0 IR S(R. FT. 0 0 0 0 - GTA - 0 0 C :Slb- LOPI-4 OT 1 - 1 1 1 L:o 1 1 X 1 - 7 <-t-ACM 0 v (SE L) , C,,/, ) E E 0 OUTSIDE DINING 192 SF HIGGS BEACH CONCESSION REVISED AUGUST 24TH 2016 MONROE COUNTY PROJECT MANAGEMENT j ; "DIN AREA 387.2 S F: - ; - Z , DINING AREA 763 SF DINING AREA 940 SF N-7 ;TAKEOUT D IN ING INING 375.4 SF AL '- ,9' -10 STORAGE 115 SF 6 184.6 SF ADDITIONAL 115 SF TOTAL USABLE SF PREVIOUS: 3,928.3 TOTAL USABLE TO INCLUDE 115 SF OF ADDITIONAL STORAGE: 4,043.3 SF EXHIBIT E E 0 U) U) Z U) KITCHEN AREA 540.8 SF .:r MEN 5 WOMAN S " 1' 177 SF OFFICE 1 .6 SF 177 SF OFFICE 114.6 SF H It % ma y ? !6 N-7 ;TAKEOUT D IN ING INING 375.4 SF AL '- ,9' -10 STORAGE 115 SF 6 184.6 SF ADDITIONAL 115 SF TOTAL USABLE SF PREVIOUS: 3,928.3 TOTAL USABLE TO INCLUDE 115 SF OF ADDITIONAL STORAGE: 4,043.3 SF EXHIBIT E E 0 U) U) Z U) C UNTYMONROE KEY WEST FLORIDA 33040 (305)294.4641 BOARD OF COUNTY COMMISSIONERS Mayor Sylvia J. Murphy, District 5 Ma. or Pro 'I em Heather Carruthers , District 3 Kim Wigington. District I George Neugcnt_ District 2 Mario Di Gennaro. District 4 Public Works Division Facilities Maintenance Department 1100 Simonton Street, #2 -284 Key West, FL 33040 Phone: (305) 292 -4549 Fax: (305) 295 -4349 November 15, 2010 Mr. Richard Hatch, Manager /Member 1000 Atlantic Boulevard,_ LLC 729 Thomas Street Key West, FL 33040 RE: Lease Extension Agreement Higgs Beach Concession /Restaurant - Salute Dear Richard: On October 3, 2010, the Monroe County Board of County Commissioners approved a Lease Extension Agreement for Salute at Higgs Beach Enclosed for your use is a fully executed Agreement. If you have any questions, please do not hesitate to contact me. Sincerely, John W. King Senior Director, bower Keys Operations cc: Dent Pierce, Division Director, Public Works Beth Leto, Assistant Director, Public Works LEASE EXTENSION AGREEMENT HIGGS BEACH CONCESSIONIRESTAURANT THIS LEASE EXTENSION AGREEMENT is made by and between Monroe County, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, FL 33040, hereafter "County" or "Lessor ", and 1000 Atlantic Boulevard, LLC, whose address is 729 Thomas Street, Key West, Fl., 330040 hereafter, "Tenant" or "Lessee" this 20th day of October, 2010. WHEREAS, on the 21st day of May 2008, the County and the predecessor in interest entered into a Lease agreement (hereafter original lease) for one (5) year term, copy of which is attached hereto and made a part hereof; and WHEREAS, the predecessor in interest, Key West Hospitality, LLC assigned all of its rights, title and interest in the Original Agreement to the Lessee, 1000 Atlantic Boulevard, LLC pursuant to a contract for sale/purchase of the restaurant, copy of which is attached hereto and made a part hereof; and WHEREAS, by the terms of the original lease the Lessee is entitled to an extension of the lease upon completion of ADA modifications and other capital improvements; and WHEREAS, the Lessee has completed all of the ADA modifications required in the original lease; and WHEREAS, the Lessee has also effected the additional capital improvements separate and apart from the ADA modifications that entitle the Lessee to an extension; and WHEREAS, Lessee submitted to County staff and County staff reviewed, verified and inspected all of the additional capital improvements; NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: 1. The term of the original lease is hereby extended 10 years and terminates on August 11, 2023. 2. In all other respects the terms and conditions of the original lease remain in full force and effect. 3. This lease extension will take effect on October 20, 2010. I IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (SEAL ATTEST, BOARD OF COUNTY COMMISSIONERS T HALE, CLERK OF MONROE COUNTY, FLORIDA By Mayor /Chairperson l y Witnesses This do 7Zd *4,ot- t was prepared Pee ado, Esq. Assistant unty Attorney Florida Bar No.: 0084050 P.D. Box 1026 Key West, FL 33041 -1026 (305) 292 -3470 1000 ATLANTIC BOULEVARD, LLC By - '7�r Title: Vj I c �RetDENT awpWowed as to form by: 1- 4 Date y. .... 1 ® DATE [ R.5.0 CERTIFICATE OF LIABILITY INSURANCE ���$����� PRODUCER (305)743 -0494 FAX: (305)743 -0582 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Keys Insurance Services, Inc. ONLY AND CONFERS NO BIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OF 5800 overseas Hwy #43 E AFFORDED BY THE POLICIES BELOW P.O. Box 500280 1 Marathon FL 33050 -0280 U RERSi1 IAIG COVERAGE NAlC# INSURED INSURER A Ll oyds of London 1000 Atlantic Blvd LLC, DBA: Salute Rely our t Mk URER F2ollffas ita ity Mutual Ins Co 729 Thomas Street INSURER C: Rey West FL 33040 COVERAGES I THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED- NOTWITHSTANDINC ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OF MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OFSUCF POLICI AGGREGATE LIMITS SHOWN MAY HAVE BEEN RED BY PAI CLAIMS. IN$R ADD'L - - - - - -- - --- - -- -- .._ POLICY EFFECTIVE I POLICY EXPIRATION POLICY NUMBER UNRS GENERALIIAWLITY EACH OCCURRENCE 5_ 1, .000 X C_^,MMERCLAL GENJENAL LUIBILITY ..__ — o7u�AGI TgiFEirTE6 s PREMISES - (Ea oecu7 ®rlce� - t 50.0 A X CLAIMS MADE X OCCUR AR.FZ6ea9810 10/16/2010 10/16/2011 MED EXP (Any one p erean] S 1 ■ 0 L .__.. PERSONAL S 1 ., 000,0 -- _SAD GEN ERAL AGGREGATE ' S 2,000, G AGGREGATE LIMIT APPLIES PER - PRODUCTS - COMPIOP AGG LS — -- — 1 000 X POLICY : PRO LOC ! AUTOMOSILE UABIUTY COMBINED SINGLE LIMIT 5 ANY AUTO 1 (Ea accident) - - -- - -- ALL OWNED AUTOS BODILY INJURY 5 SCHEDULED AUTOS (Per P—) { HIRED AUTOS BODILY INJURY 1 $ NON-OWNED AUTOS 'I (Par eGddanq -- - - • • - _ -- _ PROPERTY DAMAGE = (Perecddenq - GARAGE LIABILITY ;i r .. i l . -._{ - i A ONLY - EA ACCIDE 5 ANY AUTO I _ OTHER THAN EA ACC S 15.- . AUTO ONLY: AGO EXCESS0 UMBRELLA LIABILITY EACH OC CURRENCE $ _ V OCCUR CLAMS MADE !� .1 AGGREGATE - — ^ — S — -- --- ' ! ]gyp IS DEDUCTIBLE I - _ -I I I. RFTFNTION S_ WORKERS COMPENSATION ! ANO EMPLOYERV LIABILITY I VARY. LIMI - - � ER YIN ANY PROPRIETOFUPARTNERAEXECUnVE I EL EACH ACCIDENT OFFICERIMEMBER EXCLUDED? {Mendatary InNH) WC30600058172010 1/1/2010 1/1/2011 1EL DISEASE EA EM_P LO Y_EFI5 loo, .0 IN yyees, describa under ! SPECIAL PROVISIONS -below - ! E -L. DISEASE -POLICY L IMTT S 500. 0 OTHER DESCRIPTION OF OPERATIONS 1 LOCATIONS I VEHICLES I EXCLUStONS A DOE D BY EN13ONSEVENT I SPECIAL PROVISIONS LDER n SHOULD ANY OF THE ABOVE DESCRISEO POLICIES BE CANCELLED BEFORE THE EXPIRAnC Monroe C ounty Board of County Commi nsione DATE THEREOF, THE II INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRRFffI 1100 Simonton Street NOTICE TO THE CIE FII T // E HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO 30 SHAT Key Went, FL 33040 IMPOSE NO 0 OR LIABILITY OF ANY KIND UPON THE INSURER. ITS AOENTS C ATIVE ACORD 25 (2009101) — 0'!988 -2009 ACORD CORPORATION. All rights reserve INS025 (2wwi) The ACORD name and logo are registered marks Of ACORD s ® XEYS INSURANCE SERVICES INC Rates Policy Number :87043272272Q1C `°"'i' "' FLOOD POLICY DECLARATIONS i1 rr Building: Liberty American Select Insurance Company 187 4: Premium Subtotal: 5,46: Type: Renewal 1501000 Agent/Agency #: 2921 To report a claim call: (800) 759-8656 Policy Period 10/16/2010 To 10/16/2011 Phone* (305)743 -0494 These Declarati are effective Form: General Property CRS Disocunt: as of: 10/16/2010 at 12.01 AM Producer Name and Mailing Address: Insured Name and Mailing Address: 1000 ATLANTIC BLVD LLC 729 THOMAS ST KEY WEST, FL 33040.7334 Processed by- Flood Insurance Processing Center P.O. Box 2057 Kalispell MT 59903 -2057 Insured Property Address: 1000 ATLANTIC BLVD KEY WEST, FL 33040-4852 Premium Payor: Insured Rated Zone: vE Current Zone: ..., Community Number: 12 0168 1516 K 0.. Community Name KEY WEST, CITY OF + Grandfathered: No Pre -Firm Construction Program Type: Regular ba➢ a� ?:a of . U Coverage Limitations May Apply, Refer to You Flood Insurance Policy for Details. Building Description: Non - Residential One Floor Slab on Grade RESTAURANT Replacement Cost $596,250 Number of Units: 1 Type XEYS INSURANCE SERVICES INC Rates PO SOX 500280 y ? MARATHON, FL 33050 -0280 i1 rr Building: W 1.100 / 7.960 5,000 187 4: Premium Subtotal: 5,46: Contents: 1501000 Agent/Agency #: 2921 5 000 Reference #: 00443- 00807 - 000 150,225 Phone* (305)743 -0494 Insured Name and Mailing Address: 1000 ATLANTIC BLVD LLC 729 THOMAS ST KEY WEST, FL 33040.7334 Processed by- Flood Insurance Processing Center P.O. Box 2057 Kalispell MT 59903 -2057 Insured Property Address: 1000 ATLANTIC BLVD KEY WEST, FL 33040-4852 Premium Payor: Insured Rated Zone: vE Current Zone: ..., Community Number: 12 0168 1516 K 0.. Community Name KEY WEST, CITY OF + Grandfathered: No Pre -Firm Construction Program Type: Regular ba➢ a� ?:a of . U Coverage Limitations May Apply, Refer to You Flood Insurance Policy for Details. Building Description: Non - Residential One Floor Slab on Grade RESTAURANT Replacement Cost $596,250 Number of Units: 1 Type Coverage Rates Deduct Sub Total Premium Calculation Building: 200,000 1.100 / 7.960 5,000 187 200,167 Premium Subtotal: 5,46: Contents: 1501000 2.140 / 4,700 5 000 225 150,225 1 1C rem 7L Contents Location: Lowest Ploy only Above Ground Levg CRS Disocunt: Feder ail Policy Fee: 4 c Probation Surcharge. Endorsement Amount: L Totipd Premium Paid: 5,573 Third Mortgage: MONROE COUNTY SOCC 1100 SIM©NTON ST ILLY WEST, FL 33040-3110 Fourth Mortgage: This Declaration Page, in conjunction with the policy, constitutes your Flood Insurance Policy, In WITNESS WIIEHEOF. we have signe(I this policy below and herby enter into this Insurance Agreement. Pmsieicat Secretary 87043272772010 09/14/2010 T.iS..rr.. ew.n�rin.•.. c�i..... r.,.,........... �.... First Mortgage: TIS BANK PO BOX 2908 0 - FXY LARGO, FL 33037 Rti Second Mortgage: v Third Mortgage: MONROE COUNTY SOCC 1100 SIM©NTON ST ILLY WEST, FL 33040-3110 Fourth Mortgage: This Declaration Page, in conjunction with the policy, constitutes your Flood Insurance Policy, In WITNESS WIIEHEOF. we have signe(I this policy below and herby enter into this Insurance Agreement. Pmsieicat Secretary 87043272772010 09/14/2010 T.iS..rr.. ew.n�rin.•.. c�i..... r.,.,........... �.... Part 2: THIS DECLARATION PAGEr W ITH POLICY PKOV ISIONS - PART 1 AND I'NDORSfiM!?NTS, IF ANY ISSUED TO FORM A PART THERUX)F, L'OMPI al; THE BELOW NUMBERFI) CITIZENS PROPERTY INSURANCI' CORPORATION P ❑LILY. CITIZENS PROPERTY INSURANCE CORPORATION, WIND ONLY POLICY 6676 Corporate Cmtcr Parkway, 3ecksonnvilk-, Florida 32216 -0973 INSURED NAME ANt ADDRESS <rCl f ay IZENS THIS IS A 1040 ATLANTIC BOULEVARD, LLC 729 THOMAS ST KEY WEST, FL 33040 GENERAL BUSINESS POLICY TERM 10/16/2010 To 10116/2011 AT 12:01 A.M. (EST) CLTILENS POLICY No. 1473301 INCEPTION DATE EXPIRATION DATE This is your Policy Declaradon Page - This Is not it Sill - DO NOT PAY PAGE Item AMU1NT OF INSURANCE Percent of DEDUCTIBLES Co4nauranCe Territory Premiuia No. euilain Contents 9 APliCdhle S $ % $ $ MORTGAGEE /LOSS PAYEES: 1 TIB BANK OF THE FL KEYS ISA ❑A P ❑ BOX 280 KEY LARGO, FL 33037 LOAN #141419529156 2 MONROE COUNTY BOCC (LOSS PAYEE) 1100 SIMONTON ST KEY WEST, FL 33040 Total Covers e: Payment PlEn: Total Premium: Subject to Form No[s]: CIT CP2 01 10 CNRW 01 10 01 10 CIT 18 18 01 10 Mortgagee /Loss Payee: Agent; Fayorc KEYS INS SERVICES, INC. 5017 INSURED P.O. BOX 570280 MARATHON, FL 33050 Hate: 9/13/2010 rzns► - 7A3-0494 CIT w03 -CNR 01 1.0 501')6 Team 3 MORTGAGEE COPY -02 Q, .Y R 40 Pan 2: THIS 1)i!C:L.ARA1 ION PAGK WITH POLICY PROVISIONS - PART 1 AND liNI)ORSHM# ?NTS, IF ANY ISSU10 TO F0 RM APART THI?REOF, COMPL]iTI? THii lil ?Lt]W NUMill?Ri ?I] C]T17.17HS PROPI{RTY INSURANCE CORPORATION POLICY, CITIZENS PROPERTY INSURANCE CORPORATION, WIND ONLY POLICY 6676 Corporate Ccntcr Perk way, Jackson viIIc, Florida 32216 -0973 � INSURED NAME AND AD,7RESS ■� THIS 13 A 1000 ATLANTIC BOULEVARD, LLC GENERAL BUSINESS 729 THOMAS ST KEY WEST, FL 33040 PO LICY TERM 1 0/16/2010 To 10/16/2011 AT 12:01 A.M. (EST) CITIZENS POLICY NO. 1473301 INCEPTION DATE EX PIRATION nAT€ This is your Polley Uedaration Page - This Is not a Bill - DO NOT PAY PAGE : I ILem l —.1 .,- FeTCen aT DI�DDCTISMS No.. Bui Irli ny .Contents t:O5n8urdrIe Territory Premium Appltcah : 1 P.1 5 S q S S 351,000 80 10,530 T--86 2,381 150,000 80 4,500 T -86 933 ONE STORY MASONRY RESTAURANT BLDG E CONTENTS NOT TO INCLUDE FABRIC CANOPY LOC: 1000 ATLANTIC BLVD KEY WEST, MONROE FL 33040 -4852 58,000 0 80 1,740 ONE STORY MASONRY RESTAURANT AUXILIARY BLDG T -86 393 6i L& �a�aerr�a� a�u Total Cave $559,000 Pa eat Plan: x7111 Ry Total Premium: 34,469 Premiinn Amount $3,707 2005 C it]xens Property Insurance Corporation llmergency Assessment $52 Tax Exernpt Surcharge $ 65 2005 Florida Hurricane Catxelrophc Fund (FHCF) Emergency Assessment $3 - 7 Catastrophe Pwinsurance Surcharge $556 2007 Florida Insuuancc Guaranty Assmiat ion Regular Assessment $16 2009 Florida lnsurancu GuwrarNy Associatiun Rcgulw Amessawnt $36 Subject. ro Form Nois3: Mortgagee /Loss Payee: MORTGAGEE /LOSS PAYEES LIST ON ADDITIONAL, PAGE Ag erI L : Pa yo r KEYS INS SERVICES, INC. 5017 INSURED P.O. Box 500280 MARATHON, FL 33050 (305) 743 -0494 C:T NO3 - ONA 01 10 50176 Team 3 1 Dater 9/13/2010 MORTGAGEE COPY -07 OSY R 4n CONSENT TO ASSIGNMENT OF LEASE This Consent to A of Qci O political subdivision "County /Lessor ", Key "Assignor /Lessee ", and "Assignee ", the parties ssignment is entered into this 2008, by and between Monroe of the State of Florida, West Hospitality, LLC, 1000 Atlantic Boulevard, LLC, agreeing as follows: _1% " day County, a hereafter hereafter hereafter 1. The County /Lessor leases approximately 3,928 square feet of restaurant space at Higgs Beach, Key west, Florida, through a Lease Agreement dated May 21, 2008, hereafter the original Lease Agreement, commencing August 12, 2008, and terminating on August 11, 2013, unless the Lease is extended up to a maximum of ten (10) years with certain Americans with Disabilities Act ( "ADA ") modifications and capital improvements having been completed pursuant to the Lease Agreement. The original agreement is attached and incorporated into this Consent to Assignment. 2. Paragraph 8 of the Lease Agreement provides that the Lessee may elect to sub -lease or assign the Lease Agreement only upon the previous written consent of the Board of County Commissioners for Monroe County. 3. The Assignor and Assignee have entered into an Agreement for Purchase and Sale of Assets dated September 28, 2008, of the restaurant business which agreement includes an assignment to Assignee of all the Assignor's rights, title and interests in the Lease Agreement. 4. In consideration for such consent, the Assignee agrees to be bound by all the terms and conditions of the original Lease Agreement, including the obligation of Assignor /Lessee to complete certain modifications required to comply with the "ADA" pursuant to a Stipulated Settlement in Case No. 08 -10007 filed in the United States District Court as incorporated in paragraph 3(i) of the Lease Agreement. 5. The Lessor, Monroe County, agrees to the assignment of the Lease Agreement from Key West Hospitality, LLC, to 1000 Atlantic Boulevard, LLC. N IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the date first above written. Deputy C-1 i-; r (SEAL) KEY WEST HOSPITALITY, INC. Lessee /Assignor BY- L FRA CIS ZON nage tuber BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA B Mayor Mario Di Gennaro 100 Ass FEW Manager /Member y D AS � ROV J. ERCADO ,t ASSISTANT CO NTY ATTORNEY tV�� /! lJj� � c Date o - LEASE AGREEMENT HIGGS BEACH CONCESSION/RESTAURANT THIS LEASE AGREEMENT is made by and between Monroe County, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, FL 33040, hereafter "County" or "Lessor ", and Key West Hospitality, LLC, whose address is 1002 Fleming Street, Key West, Fl., 330040 hereafter, "Tenant" or "Lessee" this day of Yly 2008. WHEREAS, on the 12th day of August 1998, the County and the predecessor in interest entered into a Lease agreement, for one (5) year term, with an option to renew for one additional (5) year term hereafter referred to as "Original Agreement ", copy of which is attached hereto and made a part hereof; and WHEREAS, the County and the predecessor in interest subsequently entered into lease amendments. dated February 10, 1999, July 21, 1999, September 20, 2000, May 16, 2001, October 17, 2001, July 17, 2002, May 19, 2004 and July 14, 2004, copies of which are attached hereto and made a part hereof; and WHEREAS, the July 17, 2002 amendment amended the renewal term of the Original Agreement and now provided the predecessor in interest with an option to renew the Original Agreement for two additional (5) year terms; and WHEREAS, the predecessor in interest exercised his initial option to renew the Original Agreement and the County and the predecessor in interest entered into a Renewal Agreement dated July 1:5, 2003, copy of which is attached hereto and made a part hereof; and WHEREAS, the predecessor in interest assigned all of his rights, title and interest in the Original Agreement to the Lessee pursuant to a contract for sale /purchase of the restaurant; and WHEREAS, the County entered into a Consent To Assignment Of Lease dated April 20, 2005, copy of which is attached hereto and made a part hereof; and WHEREAS, an American with Disabilities Act (hereafter ADA) complaint has been filed against the Lessee citing ADA deficiencies on the leasehold premises at 1000 Atlantic Blvd., Key West, Florida; and WHEREAS, under the terms of the original agreement the Lessee agreed not to make any major alterations to the building located on the lease hold without first obtaining approval from the County; and WHEREAS, the current renewal term expires on August 11 2008, and the Lessee has informed the County of the Lessee's intent to exercise the Lessee's 2' renewal option; and 1 WHEREAS, the Lessee has agreed to effect all of the ADA modifications at Lessee's cost and proposes to make additional capital improvements at leasehold premises at Lessee's costs; and WHEREAS, Lessee is seeking an additional term of years beyond the 2" renewal option in exchange: for effecting additional capital improvements separate and apart from the ADA modifications; and WHEREAS, Lessee and County find that, for purposes of clarity, it would be mutually beneficial to enter into a new Lease and terminate Lessee's current Lease along with all amendments and renewals entered pursuant thereto; NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: 1. Mutual Termination of Existinp- Lease. The parties mutually agree to cancel their August 12, 1998 original Lease Agreement, February 10, 1999, July 21, 1999, September 20, 2000, May 16, 2001, October 17, 2001, July 17, 2002, May 19, 2004, amendments and July 15, 2003 renewal agreement effective August 11, 2008, with neither party having any further duty, obligation or liability to the other under the terms of the above listed documents. 2. Premises. The County does hereby lease to Tenant and Tenant leases from the County, a concrete building now situated on Clarence S. Higgs Memorial Beach, 1000 Atlantic Blvd., Key West, Monroe County, Florida, in its as is condition. Square footage allocations shall be limited to the interior and enclosed patio area referenced in Exhibit "A" attached hereto and incorporated herein. "Germ and Effective Date. Lessor does hereby grant to the Lessee the exclusive right and privilege of operating and maintaining a full service concession/restaurant at Clarence S. Higgs Memorial Beach, Key West, Monroe County, Florida, for a term of five (5) years commencing August 12, 2008 and terminating on August 11, 2013 unless extended in accordance with the terms set forth in subsection ii) below. i)Within the first year of the lease term, Lessee agrees to make the following modifications, at Lessee's cost, pursuant to the Stipulated Settlement Agreement in ADA case # 08 -10007 filed in the United States District Court, Southern District of Florida: a) Modify the main entrance to the restaurant by installing a proper ramp in order to eliminate the change in level. b) Install proper signage to indicate the accessible entrances to the restaurant, patio area and accessible bathroom. c) Install proper door hardware on all entrance and public doors. d) Provide accessible tables in all dining areas and bar area with proper signage indicating accessible tables. e) Provide an accessible route from the bar /restaurant area to the restaurant restrooms including the addition of a ramp or deck to provide a level surface for access. f) Modify the existing women's restroom to make a unisex accessible restroom which will require changes to the door entrance, pathway within, fixture modifications and proper signage. g) Establish appropriate employee training policies. h) Maintain all accessible features in the future. i) Ensure any future modifications, alterations, or changes are in compliance with the ADA. J) Request Lessor provide an additional disabled parking space along with proper striping and signage of the accessible parking space creating an accessible route to the restaurant and relocating bicycle racks to prevent encroachment into the accessible route. ii)Upon completing the ADA compliance modifications listed above, Lessee anticipates completing additional capital improvements estimated to cost $125,000 as listed below; a) Update all electrical and plumbing in the building to bring it in compliance with all current code requirements. b) Remove and replace the outside patio deck area to level the floor with the main dining room floor. c) Revamp and replace the roof over the outside patio deck area to create a more substantial roof surface. d) Remodel and enlarge the stall areas of the restaurant restrooms to make both accessible and in compliance with the ADA rather than having only one unisex accessible restroom which is proposed for installation in 2008 -2009. If Lessee has previously completed all ADA modifications listed in subsection i) a j, Lessee shall be entitled to extend the lease two additional years for every $25,000 spent on capital improvements listed in subsection ii) a — d up to a maximum of 10 years. All improvements listed in subsection ii) must be completed by August 12, 2012 unless extended by mutual agreement. Upon providing proof, in the form of material invoices, construction contracts, etc., to the Director of Facilities Maintenance as to the total amount spent on capital improvements listed in subsection ii) a -d, the parties will enter into an amendment extending the term of the Lease Agreement 2 years for every $25,000 in capital improvement. 4. Rent, Maintenance Fee, Tax. The total monthly rental payment (hereinafter collectively known as "rent "), shall include rent, applicable sales tax and a maintenance fee to cover the cost of the Lessor providing janitorial services and the opening and closing of the public restrooms. The initial rent for the Premises including the maintenance fee and applicable sales tax is $7,334.94 per month, payable in advance on or before the first business day of each month. The rent will be adjusted annually beginning with the first anniversary of the commencement of the lease term, and at every anniversary thereafter, by a percentage equal to the increase in the CPI for all urban consumers (CPI -U) for the calendar year immediately preceding the anniversary date. 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 Lease Agreement. In the case of default/breach, the County's Director of Facilities Maintenance shall first give Lessee a written notification stating the default/breach and that Lessee has ten (10) days to correct the default/breach. If the Lessee has not corrected the defaultibreach at the end of the ten (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 Lease 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. 6. L essee Covenants. Lessee covenants and agrees as follows: A. To keep open such concession/restaurant Monday- Sunday, including holidays, from 7:00 A.M. 11:00 P.M., and shall not exceed the established beach hours as specified in Monroe County Ordinance 13.5- 3(2)(E). Hours of operation may be modified by mutual agreement. 13. To furnish the necessary equipment, furnishings and fixtures needed to operate the concession/restaurant. All moveable equipment and furnishings shall remain the property of the Lessee and may be removed from the premises by Lessee at the termination of this lease agreement, with Lessor's consent. If Lessee fails to remove said moveable equipment or furnishings within ten (10) days after termination of this lease, said items shall then become the property of the Lessor. C. Lessee shall maintain a City and County occupational license during the period of this lease. D. Lessee agrees to keep the leased premises in a safe, clean and well- maintained order at no expense to the Lessor. This provision is to be monitored by the Director of Public Facilities Maintenance or his representative. E. Lessee agrees to operate its business in a business like manner. 7. Lessor Covenants. In connection with the above demised premises, the Lessor covenants with the Lessee that conditioned upon Lessee's performance and observance of Lessee's covenants herein, Lessee shall have quiet enjoyment and peaceable possession of the premises during the term of this Lease. In the event the County elects to maintain and/or improve its properties in the vicinity of the leasehold herein, either by necessity, or by choice, such activity will not be considered as a breach of any covenant of this lease. Lessor further covenants and, at its cost, agrees: a) to provide proper striping and signage of the accessible parking space and to provide a second accessible parking space adjacent to the current accessible parking space in conjunction with the accessible route to the restaurant. b) relocate the bicycle racks to prevent encroachment into the accessible route leading to any accessible entrance to the restaurant. c) to establish a policy of enforcement if cars are improperly parked to notify the car owner or have the vehicle towed pursuant to F.S. See. 316.1955(1)(a) 8. Assienment. 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. The terms of this Lease Agreement shall be binding on the heirs, executors, administrators, sub - lessees and assigns of Lessee. Ell 9. Mechanic's Liens Lessor's Ri hts. It is hereby covenanted, stipulated and agreed by and between the parties hereto that: A. there shall, during said demised term, be no mechanic's liens placed upon the concession/restaurant or improvements thereto. B. in case of any attempt to place a mechanic's lien on the leasehold premises, the Lessee must pay off same. C. if default in payment thereof shall continue for thirty (30) days after written notice, Lessor shall have the right and privilege, at its option, to pay off any mechanic's lien or any portion thereof and the amount so paid, including expenses, shall, at Lessor's option, be designated as additional rent due from Lessee at the next rent due date after such payment, with interest calculated at the rate established by the Comptroller under Sec. 55.03, Fla. Stat., for the year in which the payment became overdue. Nothing in this section is to be read as a waiver or authorization by the County of its constitutional and statutory immunity and right to have its property free of such liens. 10. Sale of Alcoholic Bever_ases. Alcoholic beverages may be sold within the enclosed restaurant and patio area only upon acquisition and maintenance of proper licenses from local, state and federal agencies. No carry -out sales of alcoholic beverages is permitted. Sales and consumption of alcoholic beverages must cease by 11:00 P.M. 11. Entertainment. Entertainment may be provided only in the enclosed restaurant and patio area. Any entertainment must be acoustic soft background music and must cease by 11:00 P.M. 12. Licenses. Lessee shall be responsible for and provide all licenses required by all local, state and federal agencies including the Department of Health. 13. Premises to be Used For Lawful Purposes. It is expressly covenanted between the parties hereto that the Lessee will not use, suffer nor permit any person to use in any manner whatsoever the leasehold property, nor any portion thereof, for purposes calculated to injure the reputation of the leasehold property or of the neighboring property, nor for any purpose or use in violation of the laws of the Untied States, or of the State of Florida, or of the Ordinances of Monroe County or the City of Key West, Florida. Lessee will keep and save the Lessor forever harmless from any penalty or damage or charges imposed for any violation of any said laws, whether occasioned by neglect of Lessee and Lessee will indemnify and save and keep harmless the Lessor against and from any loss, cost, damage, and expense arising out of any accident or other occurrence, causing injury to any person or property whomsoever or whatsoever, and due directly or indirectly to the use of the leasehold premises or any part thereof by Lessee. 14. Limitation of Lessor's Liability. It is further agreed that in no case shall the Lessor herein be liable, under any express or implied covenants in the Lease Agreement, for any damages whatsoever to the Lessee beyond the rent reserved by the Lease Agreement accruing, for the act, or breach of covenant, for which damages may be sought to be recovered against said Lessor, and that in the event said Lessee shall be ousted from the possession of said property by reason of any defect in the title of said ]Lessor or said Lessor's authority to make this lease agreement, said Lessee shall not be required to pay rent under this lease agreement while he is so deprived of said property, and that said Lessor shall not incur any liability as a result of such ouster. E 15. N Waiver of Breach. It is further mutually covenanted and agreed between the parties hereto that no waiver of a breach of any of the covenants of this lease agreement shall be construed to be a waiver of any succeeding breach of the same covenant. 16. O bservance of County Rules and Regulations. The Lessee hereby covenants and agrees that he, his agents, employees or otherwise shall observe and obey all lawful rules and regulations which may from time to time during the term hereby promulgated and enforced by the Lessor at the beach. 17. C ounty's Rip-ht of Entry. The Lessor reserves the right hereunder to enter upon the premises at any reasonable time during normal operating hours for the purpose of inspecting said premises to determine whether Lessee has complied and is complying with the terms and conditions of this Lease Agreement. The Lessee hereby agrees to keep the premises at all times in a clean and sanitary condition, and not to maintain or keep upon said premises any properties or equipment not used in connection with the operation of said business, unless authorized by the Lessor to do so. 18. Leasehold Improvements_ The Lessee agrees not to make any major alterations to the building located on said premises, without first obtaining written consent of the Lessor to do so, which will not be unreasonably withheld. Such alterations shall be based on plans approved by the Director of Facilities Maintenance and shall be subject to all City and County code provisions governing construction. Lessee shall be responsible for obtaining any permits required by any government agency. All site improvements shall be pre - approved by the Monroe County Board of County Commissioners. 19. Leasehold Maintenance. During the term of this lease, Lessee is responsible for all maintenance and repairs, including major repairs such as structural work and roof replacement and replacement of the building if destroyed. All repairs and replacement must be of the same or better quality as the original work and conform to all applicable building codes. Lessee shall be responsible for and shall properly maintain the leased premises, and upon the termination of this lease, shall leave the premises in at least as good condition as at the time of the commencement of this lease, normal use and occupancy excepted. The Lessee will keep the premises clean at all times and must meet all requirements for food handling as required by the Monroe County Department of Health. 20. Responsffi tv for Property on Leasehold. All property of any kind that may be on the premises during the term of this Lease Agreement shall be at the sole risk of the Lessee. The Lessor shall not be liable to the Lessee or any other person for any injury, loss or damage to property or person on the premises. 21. Damage to Leasehold. In the event that the demised premises, or a major part thereof are destroyed by fire, storm, or any other casualty, the Lessor at its option and without assuming Lessee's responsibilities under Section 19 "Leasehold Maintenance ", may forthwith repair the damage to such structure at its own cost and expense. The rental thereon shall cease until the completion of such repairs and the Lessor will immediately refund the pro rata part of any rentals paid in advance by the Lessee prior to such destruction. Should the premises be only partly destroyed, so that the major part thereof is usable by the Lessee, then the rental shall abate to the extent that the injured or damaged part bears to the whole of such premises and such injury 6 1 or damage shall be restored by the Lessor as speedily as is practicable and upon completion of such repairs, the full rental shall commence and the Lease shall then continue the balance of the term. If Lessor exercises its option to repair the premises, Lessee agrees to assign its right to the insurance proceeds to the Lessor. If insurance proceeds exceed the costs of repair, the Lessor will, at its option, either remit the excess funds to the Lessee or apply the excess funds as a credit towards Lessee's next due monthly rental payment. If repair costs exceed the insurance proceeds, Lessee agrees to pay Lessor within 30 days for any and all costs of repair not covered by insurance proceeds. 22. Rip-hts Reserved. Rights not specifically granted to Lessee by this Lease Agreement are reserved to the Lessor. 23. Rights of County. The Lessor shall have the absolute right, without limitation, to repair, reconstruct, alter or add to any structure or facility at Higgs Beach, or to construct new facilities at Higgs Beach. The Lessor shall, in the exercise of such right, be free from any and all liability to the Lessee for business damages occasioned (luring the making of such repairs, alterations and additions, except those occasioned by the sole act of negligence of the Lessor, its employees or agents. 24. Indemnification /Hold Harmless. Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, Lessee shall defend, indemnify and hold Lessor and the Lessor'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 (including, without limitation, costs of remediation in connection with a violation of any federal, state, or local law or regulation, attorneys' fees and costs, court costs, fines and penalties) 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 on the leasehold premises 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 Agreement, 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 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 Agreement, this section will survive the expiration of the term of this lease or any Earlier termination of this Lease Agreement. 25. Insurance Requirements. Lessee shall obtain and maintain at it's own expense the insurance coverages listed in exhibit B. 26. ]Books Records and Documents. Lessee shall maintain all books, records, and documents directly pertinent to performance under this Lease Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Lease Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Lease 7 Agreement for public records purposes during the term of the Lease Agreement and for four years following the termination of this Lease Agreement. 27, Governing Law, Venue, Interpretation This Lease 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 Lease 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 Lease 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. 27. Entire Agreement This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. Any amendment to this Lease Agreement shall be in writing, approved by the Board of County Commissioners, and signed by both parties before it becomes effective. 28. Severability. If any term, covenant, condition or provision of this Lease 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 Lease Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Lease 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 Lease Agreement would prevent the accomplishment of the original intent of this Lease Agreement. The Lessor and Lessee agree to reform the Lease Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 29. Attorney's Fees and Costs The Lessor and Lesse 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 Lease 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. 30. Binding Effect The terms, covenants, conditions, and provisions of this Lease Agreement shall bind and inure to the benefit of the Lessor and Lessee and their respective legal representatives, successors, and assigns. 31. Authority Each party represents and warrants to the other that the execution, delivery and performance of this Lease Agreement have been duly authorized by all necessary County and corporate action, as required by law. 51 32. C laims 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 Lease Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 33. 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 Lease Agreement or by Florida law. 34. Cooperation In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Lease 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 Lease Agreement or provision of the services under this Lease Agreement. Lessor and Lessee specifically agree that no party to this Lease Agreement shall be required to enter into any arbitration proceedings related to this Lease Agreement. 35. Nondiscrimination. Lessor and Lessee 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 Lease 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 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 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 may be amended from time to time, relating to nondiscrimination on the basis of disability; 10) Sections 13 -101, et seq., Monroe County Code, relating to discrimination based on race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity 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 Lease Agreement. 9 36. _C ovenant 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 Lease Agreement, and that the only interest of each is to perform and receive benefits as recited in this Lease Agreement. 37. C ode of Ethics Lessor agrees that officers and employees of the Lessor 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. 38. 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 Lease 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 Lease Agreement. For the breach or violation of the provision, the Lessee agrees that the Lessor shall have the right to terminate this Lease 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. 39. 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 Lease Agreement; and the Lessor shall have the right to unilaterally cancel this Lease Agreement upon violation of this provision by Lessee. 40. Non- Waiver of Immunity. Notwithstanding the provisions of Sec. 286.28, Florida Statutes, the participation of the Lessor and Lessee in this Lease 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 coverage, nor shall any contract entered into by the Lessor be required to contain any provision for waiver. 41. Privileses 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 Lease 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. 42. 1Lep-al Obligations and Responsibilities Non - Delegation of Constitutional or 'statutory Duties. This Lease 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 Lease Agreement is not 10 1 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. 43. P ion- Reliance by Non- Parties No person or entity shall be entitled to rely upon the terms, or any of them, of this Lease 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 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 Lease Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Lease Agreement. 44. 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. 45. 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 Lease Agreement or be subject to any personal liability or accountability by reason of the execution of this Lease Agreement. 46. Execution in Counterparts. This Lease 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 Lease Agreement by signing any such counterpart. 47. Section Headings Section headings have been inserted in this Lease Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Lease Agreement and will not be used in the interpretation of any provision of this Lease Agreement. 48. Mutual Review. This Lease agreement has been carefully reviewed by Lessee and Lessor, therefore this Lease agreement is not to be construed against either party on the basis of authorship. 11 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above..written. (SEAL) BOARD OF COUNTY COMMISSIONERS ATTES RAGE, CLERK OF MONROE COUNTY, FLORIDA By D uty Clerk Mayor /Chairperson Lim.. �t t. KEY WEST HOPL1 Y By Witnesses Title• 7 igingtartar This document was prepared and a proved as to form by: — ./ i Sh-1/U ?— J. Mercado Date Assistant CT�rVAttorney Florida Bar No.: 0084050 P.O.. Box 1026 Key West, FL 33041 -1026 (305) 292 -3470 12 Vl-k 92 sv.F'f CA q- 0 �:ilcAmp� AMA e SQ. FT. '� 5�•fT- SQ.FT. ;I'{•L Sw.�7, le'1.6'.�4T• = _ O 0 0 0 o 0 3, q cc,� C-t ss', o'- 'FA6 UT, C S-LOPLt& ---T llaLb� <4ALM if9 I'-Q" ( Ize v 1:5 E i) . to/I i/q 0 ) } �/ o Cl q- 0 �:ilcAmp� AMA e SQ. FT. '� 5�•fT- SQ.FT. ;I'{•L Sw.�7, le'1.6'.�4T• = _ O 0 0 0 o 0 3, q cc,� C-t ss', o'- 'FA6 UT, C S-LOPLt& ---T llaLb� <4ALM if9 I'-Q" ( Ize v 1:5 E i) . to/I i/q 0 ) 2005 Edition MONROE COUNTY, FLORIDA RISK MANAGEMENT POLICY AND PROCEDURES CONTRACT ADMINISTRATION MANUAL General Insurance Requirements for Organizations /Individuals fJe�si�g�u�tYy- t�wned Property Prior to the Organization or Individual taking possession of the property owned by the County, or commencing its concessionaire operations, the Organization/individual shall obtain, at his/her own expense, insurance as specified in the attached schedules, which are made part of this lease /rental agreement. The Organization/Individual will not be permitted to occupy or use the property until satisfactory evidence of the required insurance has been furnished to the County as specified below. The Organization/Individual shall maintain the required insurance throughout the entire term of this lease /rental agreement and any extensions specified in the attached schedules. Failure to comply with this provision may result in the immediate termination of the lease /rental agreement and the return of all property owned by the County. The Organization/Individual will be held responsible for all deductibles and self insured retentions that may be contained in the Organization/Individual's Insurance policies. The Organization/individual shall provide, to the County, as satisfactory evidence of the required insurance, either: • Certificate of Insurance or • A Certified copy of the actual insurance policy. The County, at its sole option, has the right to request a certified copy of any or all insurance policies required by this contract. All insurance policies must specify that they are not subject to cancellation, non - renewal, material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. The acceptance andlor approval of the Organization/Individual's insurance shall not he construed as relieving the Organization/Individual from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of County Commissioners, will be included as "Additional Insured" on all policies. They will also be named as "Loss Payee" with respect to Fire Legal Exposure. Administration Instruction #4709.6 EXHIBIT 29 2005 Editinn Any deviations from these General Insurance Requirements must be requested in writing on the County prepared Form entitled "Request for Waiver of Insurance Requirements" and approved by Monroe County Risk Management. L1 Administration Insintction #4709.6 30 2005 Hition ALL RISK PROPERTY ® INSURANCE REQUIREMENTS FOR LEASES /RENTALS OF COUNTY -OWNED PROPERTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization/Individual taking possession of the property governed by this lease /rental agreement, the Organization/Individual shall obtain All Risk Property Insurance (to include the perils of Flood and Wind) with limits no less than the Replacement Cost Value of the property leased or rented. Coverage shall be maintained throughout the life of the Lease /Rental Agreement and include, as a minimum, liability coverage for: Fire Li tiR& Vandalism Sprinkler Leakage Sinkhole Collapse Falling Objects Windstorm Smoke Explosion Civil Commotion Aircraft and Vehicle Damage Flood The Monroe County Board of County Commissioners shall be named as Additional Insured and Loss Payee on all policies issued to satisfy the above requirements. i Administration Instruction #4709.6 31 2()05 Fdition GENERAL LIABILITY INSURANCE REQUIREMENTS FOR LEASE/RENTAL OF PROPERTY OWNED BY THE COUNTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization /Individual taking possession of the property governed by this lease/rental agreement, the organization/Individual shalt obtain General Liability insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum: • Premises Operations • Products and Completed Operations • Blanket Contractual Liability • Personal Injury Liability • Expanded Definition of Property Damage • Fire Legal Liability (with limits equal to the fair market value of the leased property.) The minimum limits acceptable shall be: $300,000 Combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: $100,000 per Person $300,000 per Occurrence $ 50,000 Property Damage An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective date of this contract. In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the termination of the Lease /Rental Agreement. The Monroe County Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. U Administration Instruction 32 #4709.6 2005 FAiiticm VEHICLE LIABILITY INSURANCE REQUIREMENTS FOR LEASESIRENTALS OF COUNTY -OWNED PROPERTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization/lndividual taking possession of the property governed by this lease /rental agreement, the OrganizationiIndividual shall purchase Vehicle Liability Insurance. Coverage shall be maintained throughout the life of the Lease /Rental Agreement and include, as a minimum, liability coverage for: • Owned, Non - Owned, and Hired Vehicles • Physical Damage Protection (if the leased property is a County -owned vehicle) The minimum limits acceptable shall be: $300,000 Combined Single Limit WSW ACV for Physical Damage If split limits are provided, the minimum limits acceptable shall be: $ 100,000 per Person $ 300,000 per Occurrence $ 50,000 Property Damage ACV for Physical Damage The Monroe County Board of County Commissioners shall be named as Additional insured on all policies issued to satisfy the above requirements. In addition, if the lease /rental agreement involves County -owned vehicles, the Monroe County Board of County Commissioners shall be named as "Loss Payee" with respect to the physical damage protection_ is Adrainistration instruction 33 #4709.6 1996 Edition LIQUOR LIABILITY 40 INSURANCE REQUIREMENTS FOR CONTRACT BETWEEN MONROE COUNTY, FLORIDA AND Recognizing that the work governed by this contract involves the sales and/or distribution of alcoholic beverages, the Contractor's General Liability Insurance policy shall include Liquor Liability with lisntts equal to those of the basic coverage. icy is acceptable if the coverage is no more restrictive than the A separate Liquor Liability pol Contractor's General Liability policy. The Monroe County Board of County Commissioners will be included as Additional Insured if a separate Liquor Liability policy is provided. 0 Go CD CD LO CD r Zj u L' GLLIQ Administration Instruction 59 #4709.2 September 11 ", 2018 Dear Monroe County Board of Commissioners, Thank you for the opportunity to operate Salute at Higgs Beach. Salute would like a credit for two months of rent because of Hurricane Irma. We closed Salute on September 7" when mandatory evacuation was ordered. The Atlantic Blvd. road signs stayed up until Saturday, October 7". We reopened Salute on October V, but there was little business as the road closed signs were up. We lost part of our office roof and had water damage and mold in the office which we have repaired. Note: The Special Olympics Paddle board event on October 15' at Higgs Beach (good for business) was moved to Smathers Beach because Higgs Beach was closed. Further, the beach was full of seaweed for a long period of time. Along with the pier being closed, the beach attracted fewer visitors than last year up to Christmas. Thank you for listening to our request. Sincerely, Suanne Kitchar Proprietor I Packet Pg. 2 87]