10/17/2018 Agreement 4 �R COURra��1
op6°° °°F'• Ao4, Kevin Madok, CPA
=o ... :.. Clerk of the Circuit Court & Comptroller Monroe County, Florida
DATE: October 23, 2018
TO: Alice Steryou
Contract Monitor
FROM: Pamela G. Hanco i .C.
SUBJECT: October 17 BOCC Meeting
Attached is a duplicate original of Item S3, one year Lease Agreement with Tropical
Watersports, LLC, for a mobile retail merchandise or service concession at Higgs Beach, for your
handling.
Should you have any questions, please feel free to contact me at ext. 3550. Thank you.
cc: Facilities Supervisor
County Attorney
Finance
File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West, Florida 33040 Marathon, Florida 33050 Plantation Key, Florida 33070 Plantation Key, Florida 33070
305 - 294 -4641 305 - 289 -6027 305 - 852 -7145 305- 852 -7145
LEASE AGREEMENT
FOR HIGGS BEACH CONCESSION
THIS LEASE AGREEMENT is made and entered into on the 17th day of October, 2018,
by and between MONROE COUNTY, a political subdivision of the State of Florida, hereinafter
referred to as "County" or "Lessor ", whose address is 1100 Simonton Street, Key West, Florida
33040, and Tropical Watersports, LLC., hereinafter referred to as "Lessee" or "Tenant ",
whose mailing address for purposes of this Agreement is 1607 Laird Street, Key West, Florida
33040;
WHEREAS, Lessor is the owner of the Clarence S. Higgs Memorial Beach Park,
hereafter "Higgs Beach ", that has space(s) available for mobile concessions; and
WHEREAS, County advertised via the competitive solicitation process a Request for
Proposals ( "RFP ") for Mobile Retail Merchandise or Service Concession at Higgs Beach,
through which Lessee was sole respondent;
WHEREAS, Lessor has negotiated the terms of the lease with Lessee to operate a
concession(s) at Higgs Beach in Key West, Florida, and
WHEREAS, Lessor desires to grant to Lessee the right to operate a concession(s) at
Higgs Beach at Key West, Florida, and
WHEREAS, the Lessee desires to enter into such a Iease and represents to the Lessor that
it is qualified to operate a concession(s) and has the financial resources to undertake such an
operation;
NOW, THEREFORE, IN CONSIDERATION of the premises and of mutual covenants
and promises hereinafter contained, the parties do hereby agree as follows:
1. Premises. Lessor hereby leases to Lessee the area identified and shown on
Exhibit "A ", hereafter the "Premises ", for use as a Concession. Exhibit "A" is attached to this
agreement and incorporated by reference. The mobile retail concession operation shall be
located at least fifty (50) feet away from other concessions located at Higgs Beach. Lessee's
concession shall be operated from the area identified as " #1" on Exhibit "A" attached hereto.
Lessee's location may be relocated at the County's discretion as construction needs dictate for
implementation of the Higgs Beach Master Plan as shown on Exhibit "B" attached hereto and
made a part hereof.
2. Concession Products and Services. This agreement is limited to rentals of
lounge chairs, lawn/patio chairs, umbrellas, volley balls, and watersports equipment, to include
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single kayaks, paddleboards and inner tubes. The use of children's sand toys, floating noodles,
and boogie boards are complimentary to customers. Items for sale include mask and snorkel sets,
Conch Republic flag towels, Panama Jack sunblock, and non - exclusive Concierge services. NO
OTHER SERVICES OR PRODUCTS MAY BE PROVIDED WITHOUT THE WRITTEN
CONSENT OF THE COUNTY.
3. Lease Documents. The lease documents, of which this agreement is a part,
consists of the lease documents, which are as follows: This agreement and any amendments
executed by the parties hereafter, together with the RFP and any addenda, the response to the
RFP and all required insurance documentation. In the event of a discrepancy between the
documents, precedence shall be determined by the order of the documents as just listed.
4. Regulations.
(a) The Lessee shall provide a list of all merchandise it intends to sell and services to
be provided with pricing as shown on Exhibit "C" attached to this agreement and incorporated
by reference. The County reserves the right to reject any items or services it finds inappropriate,
objectionable, or not in the best interests of the County. Lessee is permitted to employ
entertainment in the form of a tape /CD, IPod, or internet sound system. Other forms of
entertainment may be permitted with the written consent of the Director of Facilities
Maintenance or his designee. Where permitted, no sound source shall be permitted that is so
loud that it emanates outside of the Lessee's concession space. Lessee will be responsible for
obtaining any and all licenses or necessary authorizations to utilize such means of entertainment
as set forth herein, if applicable, and indemnify the Lessor for any claims or violations thereto.
(b) The Lessee must comply with all the applicable requirements of the statutes,
rules, ordinances, regulations, orders, and policies of the federal, state, county, and city
governments either in effect on the effective date of this Lease or later adopted.
(c) Lessee shall be required to obtain Monroe County and City of Key West
Occupational Licenses before beginning operations. Lessee shall also be responsible for
obtaining any additional licenses which may be required by Lessee's operations at Higgs Beach
before beginning operations. A copy of all licenses must be provided to the County's contract
manager within fifteen (15) days of contract award.
5. Term. This Lease Agreement shall commence retroactive to the 16' day of
October, 2018, and will terminate on the 15` day of October , 2019, unless terminated earlier
under another paragraph of this agreement. This Lease may be renewed, at the County's
discretion, after reassessing the terms and pending negotiations between the parties for five (5)
additional, one (1) year terms upon written request by the Lessee, provided at least sixty (60)
days prior to termination of the Lease or any renewal thereof.
6. Rental and Fees.
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(a) RENT: Lessee agrees to pay Lessor rent in the amount of Five Hundred and 00 /100
Dollars ($500.00) per month, for retail merchandise or service concession space as shown on
Exhibit "A ". Rental payments are due by the 1 day of the month for which the rent is due and;
(b) PERCENTAGE ( %) GROSS TAXABLE SALES: In addition to the monthly
rental payment, Lessee agrees to pay Lessor 7.5 % of the monthly gross taxable sales.
Payment of charges under this subparagraph shall be made in monthly installments. A
statement, including proof of monthly revenue, itemized into categories and a log
documenting days and hours of operation, shall be provided by the Lessee to the Lessor each
month. The Lessee must provide the County with the sales tax records for each month or quarter
depending on filing requirements. Payment shall be made no later than the 25th day of the
month payment is due, i.e. January payment by February 25, February by March 25, etc.
(c) ANNUAL GUARANTEE: The Lessee agrees to pay a guaranteed minimum annual
fee of 10.125% of annual gross taxable sales, or the annual monthly rental of Five
Hundred Dollars ($500.00), plus the total of the 7.5% of the monthly gross taxable
sales, whichever is greater. Annual gross sales revenues are determined on a calendar year
basis. A calendar year shall run from January 1st through December 31st inclusive. If the
annual guaranteed minimum of 10.125% is applicable, payment shall be
made no later than the 25th day of January of the current year following the year of the
aforementioned calculations. The Lessee must provide the County with the sales tax records for
each month or quarter depending on filing requirements and remit the difference.
(d) An annual rental payment adjustment shall be made in accordance with the
percentage change in the Consumer Price Index for all urban consumers (CPI -U) for the prior
calendar year ending on December 31st. The increase will take effect on the anniversary month
of the month when the operation opened for business. In the event of a deflationary CPI -U, no
adjustment in the lease amount will be made. All payments should be made payable to the
Monroe County BOCC and directed to the Facilities Maintenance Contract Monitor, 1100
Simonton Street, 2 " Floor, Room 2 -216, Key West, FL 33040.
(e) No rent payments are due under this agreement until the operation is open for
business. If the operation opens on a date other than the first of the month, then the rent charge
will be prorated as a percentage that the number of days in the month that the operation was in
business represents to the month as a whole.
(f) Lessee must open the operation for business within fifteen (15) days of the
effective date of this Agreement.
(g) Lessee shall maintain all books, records, and documents directly pertinent to
performance under this Agreement in accordance with generally accepted accounting principles
consistently applied. Each party to this Agreement or their authorized representatives shall have
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reasonable and timely access to such records of each other party to this Agreement for public
records purposes during the term of the Agreement and for four (4) years following the
termination of this Agreement. An annual operating statement prepared by a C.P.A. must be
provided to the Lessor on or before February 28 of the following year.
(h) The Lessee must pay all assessments, taxes, including sales taxes, levied by any
governmental body with the power to impose assessments or taxes. The Lessee must provide the
County with the sales tax records for each month or quarter depending on filing requirements as
set forth in Paragraph 6 (b) herein.
(i) The Lessee must provide alI items and equipment needed for the operation
including, but not limited to: vehicle and /or mobile cart, shelving, display cases, tables, chairs,
refrigeration units, etc. Lessee's items and equipment must be removed from the Premises at the
end of each day or secured in a location within Lessee's concession space, as agreed upon with
the Lessor, in such a manner as to not interfere with any daily beach cleaning operations.
(j) Notwithstanding anything set forth in paragraph 11 of this agreement, if the
Lessee fails to pay any rents or fees due under this lease within fifteen (15) days after the Lessor
notifies the Lessee in writing that the rent or charge is overdue, then the Lessor may, in its
discretion, either immediately or later, expel the Lessee and any persons claiming the premises
by or through the Lessee, and remove any of the Lessee's effects without being guilty of trespass
and without prejudice or waiver to any other available remedy the Lessor might have for the
recovery of the rent or charges due from the Lessee. Upon the Lessee's expulsion, this Lease
will terminate. However, the Lessee's obligation to pay the rent or charges due will survive the
termination. Overdue rent and charges will accrue interest beginning on the 16th day after the
Lessee was notified in writing by the Lessor that the renter charges were overdue. The interest
rate will be that established by the Comptroller under Sec. 55.03, F.S., for the year in which the
rent or,charge first became overdue.
7. Force Majeure. Neither party shall be liable for any failure or delay in the
performance of its obligations under the Lease Agreement to the extent such failure or
delay necessarily results from the occurrence of a Force Majeure Event beyond the control or
reasonable anticipation of either party, including, but not limited to, compliance with any
unanticipated government law or regulation not otherwise in effect at the time of execution of
this Agreement, acts of God, unforeseeable governmental acts or omissions, fires, strikes, natural
disasters, wars, riots, transportation problems, and /or any other unforeseeable cause whatsoever
beyond the reasonable control of the parties (and such cause being referred to as a "Force
Majeure Event "). Accordingly, the parties further agree that:
(a) Upon the occurrence of Force Majeure Event, the non- performing party shall be
excused from any further performance of those obligations under this Agreement that are _
affected by the Force Majeure Event for as long as (a) the Force Majeure Event continues; and
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(b) the non - performing party continues to use commercially reasonable efforts to recommence
performance whenever and to whatever extent possible without delay.
(b) Upon the occurrence of a Force Majeure Event, the non - performing party shall
notify the other party of the occurrence of such event and describe in reasonable detail the
effect(s) of such event upon the party's performance of its obligations and duties pursuant to this
Agreement. Such notice shall be delivered or otherwise communicated to the other party within
two (2) business days following the failure or delay caused by the Force Majeure Event, or as
soon as possible after such failure or delay if the Force Majeure Event precludes the non-
performing party from providing notice within such time period.
(c) In the event of a Force Majeure Event, the time for performance by the parties
under the applicable statement of work shall be extended for a period of time equal to the time
lost by reason of such cause through execution of an amendment pursuant to the terms of the
Agreement.
8. Background Checks /Personnel. Lessee's employees must consent to Level
1 background checks and the results are to be provided to the County. The County reserves the
right to refuse personnel based on results of the background check. The County reserves the
right to demand of the Lessee replacement of an employee for the Lessee if a conflict or problem
with that employee should arise. The County's Facilities Maintenance Director or his assignee
shall have the right to require any employee(s) of the Lessee to be permanently removed from
the Higgs Beach premises whenever it appears to be in the best interest of the County. It is the
responsibility of the Lessee to inform the Facilities Director or his assignee of all new hires and
the results of the background check.
(a) The Lessee will be responsible for the supervision, hiring, and firing of their own
employees and shall be solely responsible for the pay, worker's compensation insurance, and
benefits.
(b) Communication between the County Representative and the concession personnel
is very important. Therefore, the Lessee must assure that at least one (1) concession personnel
can communicate well with the County Representative. Any employee hired by the Lessee will
be the Lessee's employee and in no way has any association with the County. The Lessee shall
insure that its employees are trained in all appropriate safety regulations, and comply with all
such applicable laws and regulations and comply with all other local, State, and Federal
regulations.
(c) Uniforms are preferred for concession personnel however; photo identification
cards are required, which shall clearly identify personnel as employees of the Lessee. This
requirement shall apply upon entering County property and at all times while on duty.
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(d) Contractor/Respondent further agrees to notify the County immediately upon
becoming aware that one of its employees, who previously completed the background check, is
subsequently arrested or convicted of any crime. Failure by Contractor /Respondent to notify
County of such arrest or conviction within forty -eight (48) hours of being put on notice by the
employee and/or within five (5) days of its occurrence shall constitute grounds for immediate
termination of this Lease by County. The parties further agree that failure by
Contractor /Respondent to perform any of the duties described in this paragraph shall constitute a
material breach of the contract entitling County to terminate this contract immediately with no
further responsibility to make payment or perform any other duties described herein.
9. Hours of Operation. The Lessee agrees to furnish good, prompt and efficient
service and /or merchandise to meet all demands for concession service at Higgs Beach. Lessee
shall offer quality products at competitive prices at least consistent with similar goods and
services presently being offered locally in other local facilities. All pricing for all goods and
services are to be posted and visible for all customers. The operation must be open for service
363 days per year and will operate from 8:00 a.m., or after beach cleaning is completed, to 5:00
p.m., as a minimum, provided winds are below 15 mph (for umbrella safety) and weather
permitting. Closing for Thanksgiving day and Christmas day are optional. The hours can be
revised by mutual consent. For purposes of setting up the concession in the morning and closing
the concession in the evening, Lessee may arrive one half hour prior to, and depart no later than
one half hour after, the hours of operation. The Lessee shall provide to the Lessor a monthly log
documenting days and hours of operation. The concession must be roadworthy to meet any
FEMA requirements for evacuation from the park and, if necessary, properly registered and
licensed for over the road use.
10. Use and Conditions.
(a) The Lessee must provide an adequate number of covered metal or commercial
outdoor plastic waste containers at its operation. Lessee shall provide separate containers for
waste and for recyclables. Lessee must deposit all trash, waste, and recyclables in those
containers for proper disposition of the waste and recyclables at the place designated by the
Lessor.
(b) No signs, advertising, or awnings may be erected by the Lessee, unless they are
approved by the Director of Facilities Maintenance or his designee in writing.
(c) The concession stand will not have commercial lighting of any type, including
signage.
(d) Smoking shall be prohibited by all concessionaire employees within fifty (50) feet
of each concession location.
(e) If the Lessee chooses to install a security alarm system, it will be of the non -
audible type, and approved in writing by the County Administrator or his designee.
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(f) The rental or selling of fishing equipment will not be permitted.
(g) As a protection, Monroe County takes many precautions to preserve the beaches
and natural environment. The County commits to protecting Sea Turtles, other coastal wildlife
and their habitat. The Lessee shall also coordinate and cooperate with State Agencies and sea
turtle conservation groups during turtle nesting season, April 15 through October 31, when Save -
a -Turtle representatives and/or Certified Turtle Inspectors, are walking the beaches. It is
important that the Lessee understand these environmental regulations.
(h) The Lessee is responsible for the sole costs and expenses and any maintenance of
the Lessee's operation, including any utilities required for its operation and the equipment used
by Lessee and/or offered for rental. All accessories and equipment applicable to Lessee's
concession operation (tables, canopies, chairs, etc.) shall be clean and in good working condition
at all times. All rental equipment shall meet strict safety standards, and equipment which is
broken, or a potential safety risk, shall be removed immediately. The Lessee will be responsible
for insuring equipment is safe and meets all regulated safety requirements. Facilities
Maintenance Director or Assignee reserves the right to remove equipment from the beach at any
time if it does not meet minimum service or appearance standards.
11. Lessor's Termination. Except as otherwise provided herein, the Lessor may
cancel this agreement when, after giving the Lessee thirty (30) days' written notice that an act of
default has occurred, the Lessee fails or cannot cure the following:
(a) The appointment of a receiver of the Lessee's assets.
(b) The divestiture of the Lessee's interest in the lease by court order or other
operation of law.
(c) The Lessee's abandonment of the operation. Failure to open the operation and
keep it open during the business hours described in this agreement for seven (7) consecutive days
shall constitute abandonment.
(d) The failure of the Lessee to timely perform any of the obligations required of it
under this agreement.
No waiver of default by the Lessor of any of the obligations required of the Lessee under
this agreement may be construed as a waiver of any subsequent default of any of the obligations
that are required to be performed, kept or observed by the Lessee. The Lessor's waiver of an act
of default by the Lessee is not a waiver of the right of the Lessor to later cancel this agreement
because of the Lessee's failure to subsequently perform an obligation or obligations under this
Lease Agreement.
12. Lessee's Termination. if the Lessee is not in default of its obligation to pay the
rent and the charges, then the Lessee may cancel this agreement when, after giving the Lessor
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thirty (30) days written notice of an act of default, the Lessor fails or cannot cure, or fails to
timely perform, the obligations required of it under this Lease Agreement.
13. Insurance. Before entering the Premises, the Lessee must obtain insurance in
the amounts and according to the conditions described as follows:
(a) The Lessee will be responsible for all necessary insurance coverage which
includes, at a minimum:
Worker's Compensation - $100,000 Bodily Injury by Accident;
$500,000 Bodily Injury by Disease, policy limits;
$100,000 Bodily Injury by Disease, each employee
Vehicle Liability - $300,000 combined single limit
General Liability - $300,000 combined single limit
Certificates of Insurance must be provided to Monroe County within fifteen (15) days after
award of proposal, with Monroe County BOCC listed as an additional insured on all policies,
except Workers Compensation. If the proper insurance forms are not received within the fifteen
(15) days, the proposal may be awarded to the next selected respondent. All forms of insurance
required above shall be from insurers acceptable to the County. Lessee cannot begin operating
until Certificates of Insurance have been received by the County. The Lessor, at its sole option,
has the right to request a certified copy of any or all insurance policies required by this Lease.
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.
(b) The Lessee must keep in full force and effect the insurance described during the
term of this agreement. If the insurance policies originally purchased that meet the requirements
are canceled, terminated, or reduced in coverage, then the Lessee must immediately substitute
complying policies so that no gap in coverage occurs. Copies of current policy certificates shall
be filed with the Monroe County Risk Department or the Facilities Contract Manager, as
appropriate, whenever acquired, amended, and annually during the term of this Lease.
(c) The insurance required of the Lessee in this paragraph is for the protection of the
County, its property and employees, and the general public. The insurance requirement is not,
however, for the protection of any specific member of the general public who might be injured
because of an act or omission of the Lessee. The insurance requirements of this paragraph do not
make any specific injured member of the general public a third party beneficiary under this
agreement. Therefore, any failure by the County to enforce this paragraph, or evict the Lessee if
the Lessee becomes uninsured or underinsured, is not a breach of any duty or obligation owed to
any specific member of the general public and cannot form the basis of any County liability to a
specific member of the general public or his/her dependents, or estate, or heirs.
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(d) Notwithstanding anything set f o r t h in paragraph I 1 of this agreement, the Lessor
may treat the Lessee in default if the Lessee, after entering the premises but before beginning its
operation, does not have the insurance required by subparagraph 12(a).. Before the County may
terminate the agreement in this situation, the County must give the Lessee a written notice of the
default stating that, if the required insurance is not obtained within ten (10) days of the Lessee's
receipt of notice, then the County will cancel this agreement. The County may treat the Lessee
in default and cancel this agreement if the Lessee, after starting the operation, fails to keep in full
force and effect the insurance required by subparagraph 12(a). Before treating the Lessee in
default and terminating the agreement in this situation, the County need only provide the Lessee
24 -hour notice by E -Mail or overnight courier. The County may, but need not, provide Lessee
with an opportunity to cure the default.
14. Non - Exclusive Rights. Notwithstanding anything herein contained that may be,
or appear to be, to the contrary, it is expressly understood and agreed that the rights granted
under this agreement are nonexclusive and the Lessor herein reserves the right to grant similar
privileges to another Lessee or other Lessees on other parts of Higgs Beach.
15. Rights Upon Termination. At the end of this agreement (or any renewal), the
Lessee's right to the Premises, the use of Higgs Beach facilities, and any other right or privilege
granted under this agreement ceases. All equipment, improvements, furnishings, and other
property of the Lessee at the Premises are personal to the Lessee and remain the property of the
Lessee and must be removed by him/her. The Lessee must also restore the Premise to its original
condition, ordinary wear and tear and damage by causes beyond the control of the Lessee,
excepted.
16. County's Right of Entry. Lessor reserves the right hereunder to enter upon the
Premises at any reasonable time, with advance notice, for any purpose connected with the
performance of the Lessor's obligations under this agreement or in the exercise of its
governmental functions.
17. Assignment. The Lessee may not assign this agreement, or any part of it, or
sublease the Premises, or any portion of the Premises, without the written approval of the Lessor.
The change of the Lessee's status from an individual to a partnership or corporation is an
assignment under this paragraph requiring the Lessor's approval. If the Lessee is approved to do
business in the corporate form, any assignment of a controlling interest in the corporate stock is
also an assignment under this paragraph that requires the Lessor's approval. AlI the obligations
of this agreement will extend to the legal representatives, successors, and assigns of the Lessee
and Lessor.
18. Indemnification/Hold Harmless /Defense. The Lessee covenants and
agrees to defend, indemnify and hold harmless Monroe County Board of County Commissioners,
and its elected and appointed officers, officials, agents, servants, and employees from any and all
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claims, demands, or causes of action for bodily injury (including death), personal injury, and
property damage (including property owned by Monroe County) and any other losses, damages,
costs, penalties, and expenses (including attorney's fees) which arise out of, in connection with,
or by reason of the Lessee utilizing the property governed by this lease /rental agreement. The
extent of liability is in no way limited to, reduced, or lessened by the insurance requirements
contained elsewhere within this agreement.
19. Nondiscrimination. Lessee agrees that there will be no discrimination against
any person, and it is expressly understood that upon a determination by a court of competent
jurisdiction that discrimination has occurred, this Agreement automatically terminates without
any further action on the part of any party, effective the date of the Court order. Lessor and
Lessee agree to comply with all Federal and Florida statutes, and all local ordinances, as
applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VII of
the Civil Rights Act of 1964 (PL 88 -352) which prohibits discrimination in employment on the
basis of race, color, religion, sex, and national origin; 2) Title IX of the Education Amendment of
1972, as amended (20 USC ss. 1681 -1683, and 1685 - 1686), which prohibits discrimination on
the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794),
which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of
1975, as amended (42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5)
The Drug Abuse Office and Treatment Act of 1972 (PL 92 -255), as amended, relating to
nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and
Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91 -616), as amended,
relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health
Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as amended, relating to
confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of
1968 (42 USC s.3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 12101 Note),
as may be amended from time to time, relating to nondiscrimination on the basis of disability;
10) Monroe County Code, Chapter 14, Article 11, which prohibits discrimination on the basis of
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.
20. Mechanic's Liens. The Lessee shall not permit any mechanic's lien or liens to
be placed on the Premises or on improvements thereon. If a mechanic's lien is filed, it shall be
the sole responsibility of the Lessee or its officer, employee, agent, contractor, or other
representative causing the lien to be filed to discharge the lien and to hold harmless and defend
Monroe County against enforcement of such lien. Pursuant to Section 713.23, Fla. Stat., the
liens authorized in Chap. 713, Fla. Stat. does not apply to the Lessor.
21. Records — Access and Audits. The Lessee shall maintain all books, records,
and documents directly pertinent to performance under this Agreement in accordance with
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generally accepted accounting principles consistently applied and maintain such records for a
period of four (4) years after termination of this Lease. The Lessor, its officers, employees,
agents, and contractors shall have access to the Lessee's books, records, and documents related
to this Lease upon request. The access to the inspection of such books, records, and documents
by the Lessor shall occur at any reasonable time.
22. Relationship of Parties. The Lessee is, and shall be an independent contractor
and not an agent or servant of the Lessor. The Lessee shall exercise control, direction, and
supervision over the means and manner that its employees, agents, or volunteers perform the
work for which purpose this Lease is entered. The Lessee shall have no authority whatsoever to
act on behalf and /or as agent for the Lessor in any promise, lease, or representation other than
specifically provided for in this Lease. The Lessor shall at no time be legally responsible for any
negligence on the part of the Lessee, its employees, agents, or volunteers resulting in either
bodily or personal injury or property damage to any individual, property, or corporation.
23. Subordination. This Lease is subordinate to the laws and regulations of the
United States, the State of Florida, and Monroe County, whether in effect on commencement of
this Lease or adopted after that date.
24. 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 Iaws of the United States, or of the State of Florida, or of the Ordinances of
Monroe County, Florida, 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 of 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.
25. 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, for any damages
whatsoever to the Lessee beyond the rent reserved by the Lese 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, said Lessee shall not be
required to pay rent under this Lease while it is so deprived of said property, and that said Lessor
shall not incur any liability as a result of such ouster.
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26. 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 shall be
construed to be a waiver of any succeeding breach of the same covenant.
27. Severabilitv. If any term, covenant, condition, or provision of this Agreement (or
the application thereof to any circumstance or person) shall be declared invalid or unenforceable
to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions,
and provisions of this Agreement, shall not be affected thereby; and each remaining term,
covenant, condition, and provision of this Agreement shall be valid and shall be enforceable to
the fullest extent permitted by law unless the enforcement of the remaining terms, covenants,
conditions and provisions of this Agreement would prevent the accomplishment of the original
intent of this Agreement. Lessor and Lessee agree to reform the Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision.
28. Binding Effect. The terms, covenants, conditions, and provisions of this
Agreement shall bind and inure to the benefit of Lessor and Lessee and their respective legal
representatives, successors, and assigns.
29. Authority. Each party represents and warrants to the other that the execution,
delivery, and performance of this Agreement have been duly authorized by all necessary County
and corporate action, as required by law.
30. 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; provided that all applications, requests, grant proposals, and funding solicitations
shall be approved by each party prior to submission.
31. 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 the issue or issues are still not resolved to the
satisfaction of the parties, then any party shall have the right to seek such relief or remedy as
may be provided by this Agreement or by Florida law.
32. Cooperation. In the event any administrative or legal proceeding is instituted
against either party relating to the formation, execution, performance, or breach of this
Agreement, Lessor and Lessee agree to participate, to the extent required by the other party, in
all proceedings, hearings, processes, meetings, and other activities related to the substance of this
Agreement or provision of the services under this Agreement. Lessor and Lessee specifically
agree that no party to this Agreement shall be required to enter into any arbitration proceedings
related to this Agreement. -
Page 12 of 20
33. Covenant of No Interest. Lessor and Lessee covenant that neither presently has
any interest, and shall not acquire any interest, which would conflict in any manner or degree
with its performance under this Agreement, and the only interest of each is to perform and
receive benefits as recited in this Agreement.
34. Code of Ethics. County agrees that officers and employees of the County
recognize and will be required to comply with the standards of conduct for public officers and
employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to
solicitation or acceptance of gifts; doing business with one's agency; unauthorized
compensation; misuse of public position, conflicting employment or contractual relationship; and
disclosure or use of certain information.
35. No Solicitation /Payment. Lessor and Lessee warrant that, in respect to itself, it
has neither employed nor retained any company or person, other than a bona 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 Agreement. For the breach or violation of
this provision, Lessee agrees that Lessor shall have the right to terminate this Agreement without
liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount
of such fee, commission, percentage, gift, or consideration.
36. 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 or Lessee in conjunction with this Lease; and the Lessor shall have the right to
unilaterally cancel this Lease upon violation of this provision by Lessee.
37. Non - Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28,
Florida Statues, the participation of the Lessor and the Lessee in this Agreement and the
acquisition of any commercial liability insurance coverage, self - insurance coverage, or local
government insurance pool coverage shall not be deemed a waiver of immunity to the extent of
liability coverage, nor shall any contract entered into by the Lessor be required to contain any
provision for waiver.
38. Privileges and Immunities. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability, workers'
compensation, and other benefits which apply to the activity of officers, agents, or employees of
any public agents or employees of the Lessor, when performing their respective functions under
this Agreement within the territorial limits of the Lessor, shall apply to the same degree and
extent to the performance of such functions and duties of such officers, agents, volunteers, or
employees outside the territorial limits of the Lessor.
Page 13 of 20
39. Legal Obligations and Responsibilities. Non - Delegation of Constitutional or
Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any
participating entity from any obligation or responsibility imposed upon the entity by law except
to the extent of actual and timely performance thereof by any participating entity, in which case
the performance may be offered in satisfaction of the obligation or responsibility. Further, this
Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the Lessor, except to the extent permitted by the Florida
Constitution, State Statute, and case law.
40. Non - Reliance by Non - Parties. No person or entity shall be entitled to rely
upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -
party claim or entitlement to or benefit of any service or program contemplated hereunder, and
the Lessor and Lessee agree that neither the Lessor nor Lessee or any agent, officer, or employee
of either shall have the authority to inform, counsel, or otherwise indicate that any particular
individual or group of individuals, entity or entities, have entitlements or benefits under this
Agreement separate and apart, inferior to, or superior to the community in general or for the
purposes contemplated in this Agreement.
41. Attestations. Lessee agrees to execute such documents as the Lessor may
reasonably require, including a Public Entity Crime Statement, an Ethics Statement, and a Drug -
Free Workplace Statement.
42. No Personal Liability. No covenant or agreement contained herein shall be
deemed to be a covenant or agreement of any member, officer, agent, or employee of Monroe
County in his or her individual capacity, and no member, officer, agent, or employee of Monroe
County shall be liable personally on this Agreement or be subject to any personal liability or
accountability by reason of the execution of this Agreement.
43. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be regarded as an original, all of which taken together shall
constitute one and the same instrument and any of the parties hereto may execute this Agreement
by signing any such counterpart.
44. Other Use. Lessee shall not use or permit the use of the Premises or any part
thereof for any purpose or use other than an authorized by this Agreement.
45. Paragraph Headings. Paragraph headings herein are intended only to assist in
reading identification and are not in limitation or enlargement of the content of any paragraph.
46. Notices. Any notice or other communication from either party to the other
pursuant to this Agreement shall be sent by United States Mail, certified return receipt requested,
Page 14 of 20
or by courier with proof of delivery. The place of giving Notice shall remain the same as set
forth herein until changed in writing in the manner provided in this paragraph. Notice shall be
sent to the following addresses:
For Lessor: For Lessee:
Monroe County
Public Works Facilities Contract Monitor Chris Lembo
1100 Simonton St. 1607 Laird Street
2"`' Floor, Room 2 -216 Key West, FL 33040
Key West, FL. 33040 305 304 -0093
And
Monroe County Attorney
Post Office Box 1026
Key West, FL 33041 -1026
47. Rights Reserved. Rights not specifically granted to Lessee by this Lease are
reserved to the Lessor.
48. Governing Law, Venue, Interpretation. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida applicable to contracts made
and to be performed entirely in the State. In the event that any cause of action or administrative
proceeding is instituted for the enforcement or interpretation of this 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 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.
49. Attorney's Fees and Costs, The Lessor and Lessee agree that in the event any
cause of action or administrative proceeding is initiated or defended by any party relative to the
enforcement or interpretation of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, court costs, investigative, and out -of- pocket expenses, as an award
against the non - prevailing party, and shall include attorney's fees, courts costs, investigative, and
out -of- pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted
pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and
usual and customary procedures required by the circuit court of Monroe County.
Page 15 of 20
50. Mutual Review. This Agreement has been carefully reviewed by the Lessee and
the Lessor. Therefore, this Agreement is not to be construed against either party on the basis of
authorship.
51. 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 shall be in writing, approved by the Board of
County Commissioners, and signed by both parties before it becomes effective.
52. Final Understanding. This Agreement is the parties' final mutual understanding.
It replaces any earlier agreements or understandings, whether written or oral. This Agreement
cannot be modified or replaced except by another written and signed agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK'
Page 16 of 20
IN WITNESS WHEREOF, each party has caused this agreement to be executed by a
c 5t , , iauthorized representative.
449)--"\ - •:L,J.S , ,„ \
; . '' -0 0 LESSOR:
' ' BOARD OF COUNTY COMMISSIONERS
2 `tAT 1rS, `,' VIN MADOK, CLERK OF MONROE COUNTY, FLORIDA
o `
r
By: By / f �
Deputy Clerk Mayor /Chairman
3 M '
r C.,,'
CD rT --I cs
t PO — rs
2 � . co
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Witnesses for Lessee: LESSEE: - 2,7-) o
TROPICAL WATERSPORTS, ] R 77 2
cf ..... // z e W � . Signa ture on authorized to
Signature legally bi oration
Date: / 0 - q - /d'
o /yAf -i Alebireda le4 /p- CA o57 - 0� Le — L eze 4 6 fii e,gM
Print Name Date Print Name Title
(-3--C)::44• cL —' Address: /6° 7 r - "-/ I j i'ljt)!-
33c tc.
Signature
30S -3o4 --od4
NN`c_e_CE-Amok_A,, 1 Telephone Number
10 l C9 1 1(3)
Print Name Date
MO 0E COUNTY ATTORNEY'S OFFICE
Q STAF a3t 104 ,li
PATRICIA EABLES - 1 o
ASSISTANT COUNTY A�FORNEY !-
. p
DATE' D t771i
Page 17 of 20
Exhibit A HIGGS BEACH SITE PLAN
REVISED JUNE 6TH 2017
TENNIS MONROE COUNTY PROJECT
MANAGEMENT
P1 BEACH CHAIR CONCESStfHS
A2 CONCESSION STORAGE TRAILER
ATLANTIC BLVD. —
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EXISTING CONC. SLAB ;,s r. x ; ,
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BEACH AREA F, `
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CURRENT MEAN HIGH WATER > _•t ry [ sTBTG RE -,
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RENT&.EGUIPMENTSHALL
NOT BLOCH BEACH CLEANING
EQUIPMENT FROM REMOVING
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DESIGNATE CdTIGONAL MEAN HIGH WATER RE SEAWEED FROM THE
SWIM AREA SHORELINE
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FLOAT LINE
/'� r Exu"DNG SEAWALL
S OW PIER SUPPORTS O
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Page I8 of 20
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EXHIBIT"B"
The Higgs Beach Master Plan may be found at the following link:
htto:I/www.monroecounty-fl.gov/235/Hiegs-Beach
Page 19 of 20
"EXHIBIT C"
Tropical Watersports Price List (all prices include sales tax)
2 Chairs and 1 Umbrella $20
Single Lounge Chair $10
Late day single chair (after 3:00) $5
Late day set (after 3:00) $10
Umbrella $10
Kayak $10 /per hour
Paddleboard $20 /per hour
Mask & Snorkel set $15
Conch Republic flag towel $12
Panama Jack Sunblock $10
Volleyball rental $3
Inner tube rental $5 for 2 hours
Outside watersports priced by outside vendors
Page 20 of 20