Item C07 C.7
t, BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Heather Carruthers,District 3
IleOI1da Keys Mayor Pro Tern Michelle Coldiron,District 2
�pw° Danny L.Kolhage,District I
David Rice,District 4
Sylvia J.Murphy,District 5
County Commission Meeting
December 11, 2019
Agenda Item Number: C.7
Agenda Item Summary #6308
BULK ITEM: Yes DEPARTMENT: Facilities Maintenance
TIME APPROXIMATE: STAFF CONTACT: Alice Steryou (305) 292-4549
N/A
AGENDA ITEM WORDING: Approval of a First Amendment to Agreement for a one (1) year
renewal and a CPI-U adjustment of 1.9% with Salute Watersports, LLC, for the Mobile Retail
Merchandise or Service Concession at Higgs Beach.
ITEM BACKGROUND: Tropical Watersports, Higgs Beach previous vendor, entered into an
Agreement for Purchase and Sale of Assets dated June 27, 2019, with Salute Watersports, LLC.
Tropical assigned, and Salute assumed, all of the rights, interests, liabilities, and obligations under
the Lease. On July 17, 2019, the BOCC approved the assignment of Tropical's Lease to Salute
Watersports, LLC of its Mobile Retail Merchandise or Service Concession at Higgs Beach. The
initial lease term was for one-year beginning October 16, 2018, and terminating October 15, 2019,
with the option to renew for five (5) additional one (1) year terms. The Lease also provides that the
rental amount shall be adjusted in accordance annually with the percentage change in the U.S.
Department of Commerce Consumer Price Index (CPI-U) for all Urban Consumers as reported by
the U.S. Bureau of Labor Statistics at December 31 of the previous year which was 1.9%. The First
Amendment seeks to renew the lease term for an additional year and apply the CPI-U adjustment.
The first renewal term will commence retroactive to October 16, 2019, and terminate on October 15,
2020. The monthly payments will thereby increase from $500.00 per month to $509.50 per month,
in addition to 7.5% of its monthly gross taxable sales, beginning on October 16, 2019.
Under the initial Tropical Lease, in addition to the monthly rental fee, the Lessee also proposed to
pay a guaranteed minimum annual fee of 10.125% of the annual gross taxable sales. In the event the
combined annual monthly rent plus the total of the monthly 7.5% gross taxable sales is not greater,
then the Lessee would pay the 10.125% annual gross taxable sales fee difference. Since the
proposed fees were greatly reduced from the previous Lease Agreement with Tropical, the parties
agreed after the initial one (1) year term to reassess the terms at that time and if an agreement can be
reached, then Lessee would have the option to renew for the first of the five (5) additional one (1)
year terms. The proposed rates have resulted in a significant reduction in revenues from the prior
concession agreement in place prior to the October 2018 Lease. Staff recommends approval of the
First Amendment, however, to allow the new Lessee time to establish itself and potentially increase
revenue.
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C.7
PREVIOUS RELEVANT BOCC ACTION:
July 17, 2019 BOCC approved the assignment of Tropical Watersports Lease to Salute
Watersports, LLC of its Mobile Retail Merchandise or Service Concession
at Higgs Beach, which expired on October 15, 2019.
October 17, 2018 BOCC approved an award of bid with a one (1) year Lease Agreement
retroactive to October 16, 2018, which expires on October 15, 2019. The
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.
February 21, 2018 BOCC approval to advertise a Request for Proposals for mobile retail
merchandise or service concession at Higgs Beach.
CONTRACT/AGREEMENT CHANGES:
First Amendment for one year renewal and a CPI-U adjustment of 1.9%with Salute Watersports,
LLC for the mobile retail merchandise or service concession at Higgs Beach.
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
EXECUTED First Amendment to Lease Agreement - Salute Watersports (legal stamped) 1126 19
07_17_2019 Lease Assignment_Executed
06/27/19 Agreement for Purchase and Sale of Assets
10/17/2018 Lease Agreement- Tropical Watersports
FINANCIAL IMPACT:
Effective Date: October 16, 2019
Expiration Date: October 15, 2020
Total Dollar Value of Contract: $509.50/month plus 7.5 % of the monthly gross taxable sales
Total Cost to County: N/A
Current Year Portion: Current Year Portion: Lessee agrees to pay a guaranteed minimum
annual fee of 10.125% of its annual gross taxable sales, or the sum of the annual monthly rental of
$509.50,plus the total of the 7.5% of the monthly gross taxable sales, whichever is greater.
Budgeted: Yes
Source of Funds: Revenue
CPI: Yes
Indirect Costs: N/A
Estimated Ongoing Costs Not Included in above dollar amounts: N/A
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C.7
Revenue Producing: Yes If yes, amount: $509.50/month,plus 7.5 % of its monthly
gross taxable sales.
Grant: N/A
County Match: N/A
Insurance Required: Yes
Additional Details: This Lease calls for a significantly reduced revenue stream from the prior
Lease. The 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
REVIEWED BY:
Patricia Eables Completed 11/25/2019 2:41 PM
Kevin Wilson Completed 11/25/2019 3:05 PM
William DeSantis Completed 11/25/2019 3:14 PM
Maria Slavik Completed 11/25/2019 4:20 PM
Budget and Finance Completed 11/25/2019 4:49 PM
Kathy Peters Completed 11/25/2019 5:03 PM
Board of County Commissioners Pending 12/11/2019 9:00 AM
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C.7.a
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FIRST AMENDMENT TO LEASE AGREEMENT FOR E
HIGGS BEACH CONCESSION,KEY WEST, MONROE COUNTY, FLORIDA
THIS FIRST AMENDMENT TO LEASE AGREEMENT is made and entered into this
Ilth day of December, 2019, between MONROE COUNTY, FLORIDA ("COUNTY"), a
political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West,
Florida 33040, and SALUTE WATERSPORTS, LLC ("CONTRACTOR"), a Florida Limited
Liability Company, whose principal address is 1000 Atlantic Blvd, Key West, Florida 33040. g
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WHEREAS, Monroe County did on October 17, 2018, enter into a Lease Agreement with
Tropical Watersports, LLC, for the operation of a mobile concession at the Clarence S. Higgs
Memorial Beach Park, Key West, Monroe County, Florida, (hereinafter"Original Agreement"); and
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WHEREAS, on July 17, 2019, the BOCC approved a Lease Assignment, Assumption and
Consent (the "Assignment") of the Original Agreement from Tropical Watersports, LLC, to Salute �
Watersports, LLC, for the operation of the mobile concession on the Clarence S. Higgs Memorial E
Beach Park, Key West, Monroe County, Florida; and U)
WHEREAS, the parties have found the Original Agreement, as amended, to be mutually
beneficial; and
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WHEREAS, the parties find that it would be mutually beneficial to enter into this first
optional one (1) year renewal of the lease term and adjust the annual rental payment in accordance
with the terms of the Original Agreement;
NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants
contained herein, it is agreed as follows:
1. In accordance with Paragraph 5 of the Original Agreement, the County exercises the �
option to renew the terra of the agreement for the first of live (5) optional (1) one-year periods. This
renewal term shall contrnence retro-active to the 16`" dory of October, 2019, and ends upon October �
15, 2020, unless terminated earlier under another paragraph of this agreement. U)
2. In accordance with Paragraph 6(d) of the Original Agreement, the County exercises o
its option to amend the Agreement and the rental amount shall be adjusted annually in accordance
with the percentage change in the U.S. Department of Commerce Consumer Price Index (CPI-U) 0
for all Urban Consumers as reported by the U.S. Bureau of Labor Statistics at December 31 of the
previous year of 1.9%, with payments increasing from Five Hundred and 00/100 (S500.00) �
Dollars per month to Five Hundred Nine and 50/100 ($509.50) Dollars per month pursuant to
Paragraph 6(a)of the Agreement, with an effective date retro-active to October 16,2019.
3. Except as set forth in paragraphs 1 and 2 of this First Amendment to Lease
Agreement, in all other respects, the terms and conditions set forth in the Original Agreement,
remain in full force and effect.
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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
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By: By.
Deputy Clerk Mayor
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Date: Date:
CONTRACTOR:
SALUTE WATERSPO TS, LLC,
Witnesses for CONTRACTOR: A Flrtda,Lirnited Liabil pany
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Signature of person tlor'red to
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Kevin Madok, CPA
pCOMO&o ........ '�A Clerk of the Circuit Court&Comptroller—Monroe County, Florida
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DATE: July 30, 2019
TO: Alice Steryou
Contract Monitor
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FROM: Pamela G. Hanco , C.
SUBJECT: July 17' BOCC Meeting
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Attached is an electronic copy of eacli of die following items for your handling:
C29 Lease Assignment,Assumption, and Consent of Lease with Tropical Watersports, LLC
to Salute Watersports, LLC for the mobile retail merchandise or service concession at Higgs Beach. 2
C30 Property Management Agreement Assignment,Assumption, and Consent for
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management of the bandstands at Higgs Beach from Tropical Watersports, LLC to Salute
Watersports, LLC.
Should you have any questions, please feel free to contact me at(305) 292-3550.
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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_1 Packet Pg. 287
C.7.b
From: Hall Cynthia
To: Pam Hancock
Cc: Stervou-Alice; Flatt-Jaclyn;Camno-Abra;Slavik-Maria;Sid Webber
Subject: 7-17-2019 agenda item C-29:Assignment,Assumption,and Consent of Lease from Tropical Watersports,LLC to
Salute Watersports,LLC
Date: Tuesday,July 30,2019 1:19:04 PM
Attachments: C29 Mobile Concession.ndf
C29 Insurance.ndf
C30 Pavilion.ndf
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Pam:
This is further to our phone call this morning.
I have reviewed this agenda item, which was approved by the BOCC on 7-17-2019 as item C-29 and
is a Lease Assignment, Assumption and Consent ("Assignment") of an underlying Lease Agreement U)
for Higgs Beach Concession between Monroe County and Tropical Watersports, LLC dated Oct. 17,
2018 ("Underlying Lease"). The Underlying Lease is being assigned, with consent of the County,
from Tropical Watersports, LLC to Salute Watersports, LLC. E
Monroe County is the Lessor and Tropical Watersports (or now, Salute Watersports) is the Lessee.
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Paragraph 13 of the underlying Lease Agreement required the Lessee to obtain vehicle liability
insurance in the amount of$300,000, and to provide a Certificate of Liability insurance showing the
County as an additional insured "within fifteen (15) days after award of proposal" (this contract was
the result of an RFP). Apparently Salute Watersports has not provided evidence of this coverage.
According to page 5 of the Agreement for Purchase and Sale of Assets (including in the backup for
the agenda item), the executed Assignment is apparently one of the documents that must be _
delivered by the Buyer to the Seller, as part of the asset purchase.
It is my opinion th(r7t the A.^.>.^.>h����ment��w�r:�}r be exe(.:.t..jted by the Alhr7)lor, ���otwiti��st(.�mr:in(.� the(�(:ct th(r7t
(`7h.jte 01(.:7ter-.^.>por-Ls, LLC h(r7s not yet pr-ovided evidence of vehhJe li(.77�)1)t)r (..over-r:7rJe (it h(r7s X
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(.77pp(r�wently p r-ovided eviden((..e�.f the other-cover-r:7r�es r-erlt..jlr-ed by the C1��der-l)in(.� Le(.77>e). �
Paragraph 13 of the Underlying Lease required Tropical Watersports to provide evidence of
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coverage, but nothing in the Assignment provides that the Underlying Lease would be invalid if the U)
coverage of evidence of the insurance was not provided. At worst, Salute Watersports would
instantaneously be in breach of the Assignment as soon as it is executed. Under paragraph 12 of the
Underlying Lease, the County would provide Salute with a reasonable period of time to cure the
defect. The most likely means of curing the defect would be:
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1. Vendor submits a certificate of insurance for the vehicle liability insurance,
2. Vendor submits a request for a waiver of the insurance, which the County is free to approve
or not, pursuant to the concerns in a separate e-mail from Sid Webber.
3. Vendor requests an amendment to the Underlying Lease, to remove the vehicle liability
insurance requirement.
The County always has the option to terminate the Underlying Lease if the default is not cured,
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pursuant to paragraph 12 of the Underlying Lease. Also, paragraph 18 of the Underlying Lease
provides a strong indemnification/hold harmless clause to protect the County(although only if the
business entity has insurance and/or assets).
Attached is a copy of the agenda item C-29, as well as agenda item C-30, for assignment and
assumption of an agreement to manage the pavilion next to Salute's restaurant. Please execute U)
both.
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(Alice, please review and make sure we got all of the pages of the respective agenda items.)
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Thank you.
Cynthia L. Hall, Esq.
Assistant County Attorney cm
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Monroe County Attorney's Office
1111 12th Street, Suite 408
Key West, FL 33040
(305)292-3470 E
(305)292-3516(fax)
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LEASE ASSIGNMENT,ASSUMPTION,AND CONSENT
This LEASE ASSIGNMENT,ASSUMPTION,AND CONSENT(the"Assignment") is
made and entered into as of July 17, 2019, by and between MONROE COUNTY, a political U)
subdivision of the State of Florida, ("Landlord"), TROPICAL WATERSPORTS, LLC, a Florida
Limited Company, ("Assignor"), and SALUTE WATERSPORTS, LLC, a Florida Limited
Liability Company("Assignee').
WITNESSETH:
WHEREAS, Landlord and Assignor are all of the parties to that certain Lease Agreement
dated October 17, 2018, for the operation of a mobile concession on the Clarence S. Higgs
Memorial Beach Park, as set forth in Exhibit"A" (the"Lease"), attached hereto and made a part
hereof;and
WHEREAS, Assignor desires by this instrument to assign all of its rights, interests, and E
obligations under the Lease to Assignee, and Assignee desires to assume all of Assignor's
liabilities and obligations under the Lease,and Landlord desires to consent to such assignment and
assumption,all upon the terms and conditions set forth herein;
NOW, THEREFORE, for valid consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Assignment. Assignor hereby assigns, transfers,and conveys unto Assignee all of
Assignor's rights and interests under the Lease, and hereby assigns, transfers, and conveys unto
Assignee all of Assignor's obligations and liabilities under the Lease, effective upon the date the
transaction between Assignor and Assignee closes.
2. Assumption. Assignee hereby assumes and agrees to pay,discharge, and perform
in a full and timely manner all of Assignor's liabilities and obligations under the Lease,effective
upon the date the transaction between Assignor and Assignee closes.
3. Consent. Landlord hereby consents to the foregoing assignment and assumption, �
and releases Assignor from any liability or obligation under the Lease arising or incurred on or E
after the dale of this Assignment. Landlord also hereby acknowledges and confirms to Assignee
that: U)
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(i) Assignor and Landlord are all of the parties to the Lease; U)
(ii) the Lease represents the entire understanding of the parties with respect to
the matters that are the subject thereof, and has not been amended or otherwise i
modified;
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(iii) the Lease is in full force and effect in accordance with its terms,which terms
have not been further modified;
(iv) Assignor has paid to Landlord all amounts due and payable under the Lease
to date and has performed all non-monetary obligations under the Lease to date;
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(v) to Landlord's knowledge, no defaults on behalf of either Assignor or
Landlord have occurred and are continuing under the Lease, nor have any events
occurred which with the giving of notice, the passage of time or both would U)
constitute defaults under the Lease;
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(vi) there are no present charges, liens,or claims of offset under the Lease;
(vii) the address for notices to be sent to the Landlord and Assignee is set forth
in paragraph 46 of the Lease and said paragraph is hereby amended as to the
addresses only as follows:
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For Lessor: For Lessee:
Monroe County Salute Watersports, LLC
Facilities Maintenance Contract Monitor Attention: Richard Hatch
3583 S. Roosevelt Blvd. 729 Thomas Street E
Key West, FL 33040 Key West, FL 33D40
And
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Monroe County Attorney
P. O. Box 1026
Key West, FL 33041-1026
(viii) Landlord has no cause of action against Assignor arising out of the Lease,
nor to the best of Landlord's knowledge does the basis for any cause of action exist;
and Assignor has no cause of action against Landlord arising out of the Lease,nor
to the best of Assignor's knowledge does the basis for any cause of action exist;
(ix) the initial tern of the Lease shall terminate on October 15, 2019, with an
option to renew the Lease, at the County's discretion, for live (5) additional, one
(1)year terms pursuant to paragraph 5 of the Lease; Wi
(x) the rent under the Lease is currently Five Hundred and 00/100
($500.00) Dollars per month, plus a percentage of the monthly gross taxable
sales pursuant to paragraph 6 of the Lease;
(xi) there are no additional capital expenditures other than those expressly stated
in the Lease.
4. FuII Farce and Effect. The Lease shall continue in full force and effect and the
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Lease is hereby ratified. In the event of a conflict between the terms of the Lease and this
Assignment, this Assignment shall prevail.
5. Binding Effect. This Assignment shall not be effective unless and until the
transaction between Assignor and Assignee closes. Thereafter, it shall be binding upon and shall
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inure to the benefit of Assignor,Assignee,Landlord,and their respective and permitted successors
and assigns.
6. Cvu nterparls. This Assignment may be executed in any number of counterparts, U)
each of which shall be deemed an original and all of which said counterparts together shall
constitute one agreement with the same effect as if the parties had signed the same signature page.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the
year first written above.
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rya r BOARD OF COUNTY COMMISSIONERS
VIN MADOK, OF MONROE COUNTY, FLORIDA
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By
Deputy Clerk MayorVChairman
TROPICAL WATERSPORTS, LLC,
Assignor 1 '-`�'e
Witnesses J
By: -
Name:
Title:
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SALUTE WATERSPORTS, ;
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MONROE COUNTY ATTORNEYS OFFICE
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PATRICIA EABLES
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inurc to the benefit of Assignor,Assignee,Landlord,and their respective and permitted successors
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and assigns. (n
6. Coitnterpara. This Assignment may be executed in any number of counterparts, .2
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each of which shall be deemed an original and all of which said counterparts together shall U)
constitute one agreement vAth the same effect as if the parties had signed the same signature e®
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the 0
day and year first written above®
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(SEAL) BOARD OF COUNTY COMMISSIONERS
ATTEST: KEVIN MADOK, OF MONROE COUNTY, FLORIDA
CLERK
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Deputy Clerk Mayor Chairman
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TROPICAL WATERSPORTS, I I C.
Assignor
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Witnesses
ROBERT C. REXTER E
Notary Public,State of Rhode I nd By-
My CoTnmi5sion Expires Name: Le w-,� u
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Title:
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EXHIBIT"A"
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LEASE AGREEMENT
FOR HIGGS BEACH CONCESSION
dated October 17, 2018
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LEASE AGREEMENT
FOR 14IGGS BEACH CONCESSION U)
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THIS LEASE AGREEMENT is made and entered into on the 17th day of October,2018, U
by and between MONROE COUNTY,a political subdivision of the State of Florida,hereinafter 2
referred to as"County"or"Lessor", whose address is 1100 Simonton Street,Key West, Florida o
33041), 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; U)
WHEREAS, Lessor has negotiated the terms of the lease with Lessee to operate a o
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 lease and represents io the Lessor that
it is qualified to operate a concession(s) and has the financial resources to undertake such an
operation;
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NOW, THEREFORE, IN CONSIDERATION of the premises and of mutual covenants i
and promises hereinafter contained,the parties do hereby agree as follows:
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1. Premises. Lessor hereby leases to Lessee the area identified and shown on U,
Exhibit"A", hereafter the"Premises", for use as a Concession. Exhibit "A" is attached to this U'
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 cvi
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 suablock, and non-exclusive Concierge services. NO U)
OTHER SERVICES OR PRODUCTS MAY BE PROVIDED WITHOUT THE WRITTEN
CONSENT OF THE COUNTY. 0
3. Lease D cumen . 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 E
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 U)
entertainment in the form of a tape/CD, [Pod, or intemet 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.
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(c) Lessee shall be required to obtain Monroe County and City of Key West Wi
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. U)
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5. Term. This Lease Agreement shall commence retroactive to the 161h day of
October, 2018, and will terminate on the I5'h 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 a d Fees.
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(a)RENT: Lessee agrees to pay Lessor rent in the amount of Five Hundred and 00l100
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 (OA) 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 o
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 U'
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 E
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 U)
basis. A calendar year shall run from January 1 st through December 31 st inclusive. 1 f t h e
annual guaranteed minimum of 10.125% is applicable, payment shall be o
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 Wi
Simonton Street,2"d Floor,Room 2-216,Key West,FL 33040.
(e) No rent payments arc due under this agreement until the operation is open for LLM
business. If the operation opens on a date other than the first of the month, then the rent charge U'
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.
(1) Lessee must open the operation for business within fifteen (15) days of the
effective date of this Agreement.
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(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 (h) 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.
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(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 o
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 all items and equipment needed for the operation U'
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 E
the Lessor,in such a manner as to not interfere with any daily beach cleaning operations.
0) Notwithstanding anything set forth in paragraph l I of this agreement, if the U)
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 16* 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.
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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 e
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 U)
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 "Farce
Majeure Event"). Accordingly,the parties further agree that:
i
(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.
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(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 o
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 o
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.
U)
(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 b reason of such cause throe E
y through execution of an amendment pursuant to the terms of the
Agreement.
8. Backgr9god Cbocks/Personnel. Lessee's employees must consent to Level U)
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
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benefits.
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(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 U)
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.
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(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 o
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 U'
service and/or merchandise to meet all demands for concession service at Higgs Beach. Lessee
shall offer quality products at competitive prices at Ieast consistent with similar goods and
services presently being offered locally in other local facilities. All pricing for all goods and E
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 U)
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 far proper disposition of the waste and recyclables at the place designated by the
Lessor.
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(b) No signs, advertising, or awnings may be erected by the Lessee, unless they are U)
approved by the Director of'Facilities Maintenance or his designee in writing. U)
(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. i
(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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(1) The rental or selling of fishing equipment will not be permitted.
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(g) As a protection Monroe Count takes many
y 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- o
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 E
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 U)
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. o
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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. Wi
(d) The failure of the Lessee to timely perform any of the obligations required of it
under this agreement. e
No waiver of default by the Lessor of any of the obligations required of the Lessee under U)
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
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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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. C.7.b
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.
U)
U)
13. Insurance. Before entering the Premises, the Lessee must obtain insurance in
the amounts and according to the conditions described as follows: 0
(a) The Lessee will be responsible for all necessary insurance coverage which o
includes,at a minimum:
Worker's Compensation-$100,000 Bodily Injury by Accident;
$500,000 Bodily Injury by Disease, policy limits; CO
$100,000 Bodily Injury by Disease,each employee 0
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 U)
(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 racilities 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 U)
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 forth in paragraph 11 of this agreement,the Lessor
may treat the Lessee in default if the Lessee, after entering the premises but before beginning its g
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 o
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 U)
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.
U)
15. Rights Upon Termination; At the end of this agreement (or any renewal), the o
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.
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17. Assignment The Lessee may not assign this agreement, or any part of it, or e
sublease the Premises,or any portion of the Premises,without the written approval of the Lessor. U)
The change of the Lessee's status from an individual to a partnership or corporation is an
assignment under this paragraph requiring the Lessor's approval. If the Lessee is approved to do
business in the corporate form, any assignment of a controlling interest in the corporate stock is
also an assignment under this paragraph that requires the Lessor's approval. All the obligations
of this agreement will extend to the legal representatives, successors, and assigns of the Lessee
and Lessor. i
is. Indemnificati nMol Harml efenm 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.
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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 (o: 1) Title VII of
the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination in employment on the E
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), U)
which prohibits discrimination an 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) o
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 i
race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity 0
or expression, familial status or age; 11) Any other nondiscrimination provisions in any Federal c
or state statutes which may apply to the parties to,or the subject matter of,this Lease. Us
U)
20. Mechanic's Liens. The Lessee shall not permit any mechanic's lien or liens to U)
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 i
Monroe County against enforcement of such lien. Pursuant to Section 713.23, Fla. Stat., the i
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, E
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 alter termination of this Lease. The Lessor, its officers, employees,
agents, and contractors shall have access to the Lessee's books, records, and documents related U)
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 o
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. E
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 U)
this Lease or adopted after that date.
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24. Premises to be Used Tor 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 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 fmm 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 i
whatsoever,and due directly or indirectly to the use of the leasehold Premises or any part thereof
by Lessee. e
U)
25. Limitation of Lessor's Liability,;, It is further agreed that in no case shall the U)
Lessor herein be liable, under any express or implied covenants in the Lease, for any damages U)
whatsoever to the Lessee beyond the rent reserved by the Lese accruing,for the act, or breach of
covenant, far 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 i
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 g
construed to be a waiver of any succeeding breach of the same covenant.
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27. Severability. If any term,covenant,condition,or provision of this Agreement(or
the application thereof to any circumstance or person)shall be declared invalid or unenforceable
to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions, o
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.
29. Bindina 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. o
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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 F d ral 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.
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31.Ad'udieati n of Digingtes or Disagreements. Lessor and Lessee agree that all
disputes and disagreements shall be attempted to be resolved by meet and confer sessions
between representatives ofeach of the parties. If the issue or issues are still not resolved to the e
satisfaction of the parties, then any party shall have the right to seek such relief or remedy as U)
may be provided by this Agreement or by Florida law.
U)
32. Coo oration. 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 i
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.
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33. Covenant of No Interesi. 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 U)
receive benefits as recited in this Agreement.
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34. Code of Ethic. 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 o
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. U'
35. No Solicitation/Payment. Lessor and Lessee warrant that, in respect toltself, it
has neither employed nor retained any company or person, other than a bona fide employee E
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 U)
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 o
liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount
of such fee,commission,percentage,gift,or consideration.
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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.
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37. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, i
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 e
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. U)
38. Erivileses and Immunities. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' i
compensation,and other benefits which apply to the activity of officers, agents,or employees of i
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 E
employees outside the territorial limits of the Lessor.
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39. Legal Obli ations and MiDonsibilifies. Non-Delegation of Constitutional or g
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 o
constitutional or statutory duties of the Lessor, except to the extent permitted by the Florida
Constitution,State Statute,and case law.
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40. Non-ReHoUce 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. o
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.
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43. E gcution in Cauntcrnarts. This Agreement may be executed in any number E
of counterparts, each of which shall be regarded as an original, all of which taken together shall e
constitute one and the same instrument and any of the parties hereto may execute this Agreement U)
by signing any such counterpart.
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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.
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45. Earaaraph Headings. Paragraph headings herein are intended only to assist in i
reading identification and are not in limitation or enlargement of the content of any paragraph.
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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 24
Packet Pg. 308
.. C.7.b
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: U)
For Lessor. For Lessee:
Monroe County
Public Works Facilities Contract Monitor Chris Lembo 0
1100 Simonton St. 1607 Laird Street
2"a Floor,Room 2-216 Key West, FL 33040
Key West, FL.33040 305 304-0093
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And
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Monroe County Attorney
0
Post Office Box 1026 2
Key West,FL 33041-1026
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47. Rights Reserved. Rights not specifically granted to Lessee by this Lease are
reserved to the Lessor.
0
48. Governing aw, Venue, lute tation. 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 Wi
prior to the institution of any other administrative or legal proceeding.
49. +4ttorncy's Fees aad Costs. The Lessor and Lessee agree that in the even) any e
cause of action or administrative proceeding is initiated or defended by any party relative to the U'
enforcement or interpretation of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award
against the non-prevailing party,and shall include attorney's fees,courts costs, investigative,and
out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted
pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and
usual and customary procedures required by the circuit court of Monroe County.
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C.7.b
50. Mutual Rjticrv,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 g
authorship. U'
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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 o
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.
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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.
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IN WITNESS WHEREOF, each party has caused this agreement to be executed by a
aauthorized representative. U)
=s °_ LESSOR
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BOARD OF COUNTY COMMISSIONERS o
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VIN MADOK,CLERK OF MONROE COUNTY,FLORIDA
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By: By
Deputy Clerk Mayor/Chairman
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Witnesses for Lessee: LESSEE: =� n
TROPICAL WATERSPORTS,7Zi )
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r Signature person authorized to
Signature legally bifid Corporation
Date:
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Print Name Date Print Name Title
Address: /��7 4'+rZ j Ak5tFC
Signature wi
[� Telephone Numbcr e
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MO OE COUNTY ATTORNEIPS ONCE
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ASSWANTfiFT ODU NEY l O+
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Exhibit A HIGGS BEACH SITE PLAN �
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Tropical Watersports Price List(all prices include sales tax)
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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 $201per hour
Mask&Snorkel set $15
Conch Republic flag towel $12
Panama Jack Sunblock $10
Volleyball rental $3 E
Inner tube rental $5 for 2 hours
Outside watersports priced by outside vendors
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C.7.b
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THIS CERTIFICATE C ISSUED A F INFORMATION ONLY AND CONFERStlFTJP CTF[CA IC
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CERTIFICATE AFFIRMATIVELY VELY l C AFF
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BELOW. THISCERTIFICATE OF INSURANCE DOES T CC A CONTRACT E ISSUING I SJ E ( j REPRESENTATIVE i7 UCER,AND THE CERTIFICATE LC
I T NT< if the Certificate holder Is an ADDITIONAL INSURED,the lI (fes)must have ADDIMONAL INSURED provisions or be and;- .2
If SUBROGATIONIS WAIVED, subject to the terms and conditions of the policy,certain policies may requirean endorsement A statomont on
this Certificate does not confer rib the Ca i to alder IrI Ilau such endorsement a. �
PRODUCER CT RickAiken
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K a Insurance Sett a Division of I A a F U
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Marathon,FL 330 miken a sinsurance.com
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INSURE a AFFORWO COVERAGE § __AAIC 9 O
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ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS E
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, ag
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN Y HAVE SEEN REDUCED BY PAID CLAIMS.
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DESCRIPTION OF Op�i1ITTpN51 LOCATIONS I VEHICLES(ACORD 103 Addilloml Reorurla Scheduh may he atached anion space Is mqutnd)
The cartificate hoCder is a named additional Insured on the general liability policy per form#CIS 2011 0413,
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C RTIFICATE HOLDER CANCELLATION �I
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
E EXPIPA71ON DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS. �
Munroe County oar of Court C® sione AU A E
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1100 Simonton St
ACORD 25(201610 ) 168®2015 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered ar of ACORD
Packet Pg. 315
MONROE COUNTY,FLORIDA
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REQUEST FOR WAIVER OF INSMLANCE REQUIREMENTS U)
It is requested ftt ft insumme requirements,as specified in the County's Schedule of titsunince
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Requirements,be waived or modified an the fbilowing contracL
Contractovveiulor
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Board orcounty Commissioners appeal.
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Meeting Date- ................ ................
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AAArAGREEMENT FOR PURCHASE AND SALE OF ASSETS/
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THIS AGREEMENT FOR PURCHASE AND SALE OF ASSETS ( "Agreement") is
entered into as of the day of June, 2019, by and among TROPICAL T S ,
a Florida limited liability company, as Seller and CHRISTOPHER J. LEMBO, as Member a
(collectively referred to herein as "Seller"), and SALUTE.WATERSPORTS, LLC, as Buyer �
(hereinafter referred s "Buyer").
RECITALS-
WHERE-AS, uyer desires to purchase from Seller and Seller desire to sell to Buyer,
certain of the Assets (as hereinafterdefined) owned Seller and used in the operation of the
business located on Higgs Beach at 1000 t tic Boulevard, Key West, FL knownas "Tropical
Watersports Key West"(the"Business"); and
WHEREAS, as a material inducement to Buyer to purchase the Assets, SeHer desires to U)
a e certain representations and warranties and agrees to be bound by certain covenants and
obligations s lie is erprovided. a
THEREFORE, consideration of e mutual covenants, agreements,
^,
representations a warranties contained in this Agreement,the partieshereby agree as follows:
1 ss_--s,
Assets to be Included in the Purchase. Subject tote terms and conditions set
forth in this Agreement, Seller agrees to sell, convey, transfer, assign, n liv to Buyer, and U)
Buyer agrees to purchase from Seller, assets aud properties owned by Seller and used in the
Business,tangible or intangible, as the same shall exist at the close of business on the closing ate U)
(the assets beingtransferred hereunder are collectively referred to as the "Assets") including,
without limitation, the following: 0
(a) All items referenced on the Equipment List attached hereto as Exhibit "A",
including ut not limited to:a Trailer Hut i o golf y House, ,beach lounge chairs an
cushions,custom umbrellas,kayaks,paddleboards,lay do chairs,inflatable ,tools,
compressor, driUsljacktlocks, cabinets/cash drawe , umbrella cart-beach whee1z, o
paddleboard rack,items for retail sale(including as snorkel sets,towels,sun lock),
volley balls, beach and waters ports equipment, and any and all other tangible persa
property situated on Higgs Beach at 1000 Atlantic:Boulevard,Key West, FL and usedin
the Business and as exist as of the Closing Date; and
(b) All ofSeller's right, title, and interest in that certain e Agreement dated
October 17,2018(the"Lease),by and betweenMonroe County,a political subdivision o
the State of Florida, as Lessor and Seller, for lease of premises on Higgs Beach for the e�
operating of concessions as described in the ease, an
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(c) To the extent assignable, all licensej-', permats, and approvals issued by any
governmental or regulatory authority which are assignable and which relate to the U)
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Business.
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At closing, the Assets shall be conveyed to Buyer free and clear of all liens, pledges, security
interests,charges, claims, restrictions and encurnbrances of any nature.
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2. PurchasePrice. Buyer promises to pay to Seller,Twenty-Five Thousand and 00/100
Dollars ($25,000.00) for the purchase of the Assets. Upon execution of this Agreement, uyer
shall place on deposit with Escrow Agent, Oropeza, Stones & Cardenas, PLLC an earnest money
deposit in the amount of Five Thousand and 00i 100 Dollars ($5,000.00) (the "Escrow Deposit") U)
which shall be applied to the Purchase Price on the Closing Date,subject to the terms and conditions
herein. On the Closing Date,in addition to the Escrow Deposit,Buyer shall pay Twenty Thousand
and 00/100 Dollars ($20,000.00) in cash, by wire transfer of immediately available funds (the
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"Closing Payment")
I Continggucy- This Agreement and Buyer's obligation to close hereunder, is
contingent upon Buyer's receipt of approval and written consent to assignment of the Lease from
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Seller to Buyer from the Board of Commissioners of Monroe County,Florida.
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Personal ProDeLl] Taxes, Buyer shall not be responsible lbr any of Seller's obligations
for business, withholding, income or other taxes whatsoever,or any taxes of any kind concerning
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the Business or the As is used in the Business that are related to any period before the closing
date. Seller shall not be responsible for any of Buyer's taxes.
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4. No General Assurrintion of Liabilities, Buyer shall not assume, pay, or discharge
- - E
any debts,obffaations,contracts,loans,commitments,undertakings or liabilities of Seller. u-
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5, Rgpws�ratations of Smell r. Seller and Member represent to Buyer that the following
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facts and circumstances are, and at all times up to the closing to will be, true and correct, Each U)
representation set forth herein shall survive the closing. 4-
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5.1. Oivanization and Authoritv of Seller. Enforceability. Tropical Waterspons, UC,
a Florida limited liability company, is duly organized, validly existing, and in good
standing under the laws of the state of Florida. Seller has full corporate power and
authority to enter into this Agreement and the documents to be delivered hereunder, to U)
carry out its obligations hereunder and to consurarnate the transactions contemplated
hereby.The execution,delivery and performance by Seller and Member of this Agreement
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and the documents to be delivered hereunder and the consummation of the transactions I-
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contemplated hereby have been duly authorized by all requisite corporate action an the part 4-
of Seller. This Agreement and the documents to be delivered hereunder have been duly
executed and delivered by Seller,and(assuming due authorization,execution and delivery E
by Buyer) this Agreement and the documents to be delivered hereunder constitute legal,
valid and binding obligations of Seller,enforceable against Seller in accordance with their
respective terms.
5.2 Title to Assets and Condition. Seller and/or Member has/have good and
marketable title to all of the Assets, whether tangible or intangible. AM of the Assets are
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16
free and clear of mortgages, liens, pledges,' cliarges, encumbrances, equities, claims,
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covenants,conditions or restrictions except for current taxes not yet due and payable. All
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tangible personal property used in tile Business is in good operating condition and repair,
ordinary wear and tear excepted.
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5.3 Comnliance with Laws. The Business, Seller and/or Member have complied with
and is/are not in violation of,applicable federal,state,or local statutes,law and regulations 0
(including, without limitation, any applicable building, zoning or other law, ordinance or
regulation) affecting the Assets or the operation of the Business. All transfer, sales, use,
stanip, registration, and other such taxes and fees incurred in connection with this
Agreement and the documents to be delivered hereunder shall be bome and paid by Buyer
when due.
5.4 Comoliance with Lease Terms. The Business,Seller and/or Member have complied
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with and is/are not in violation of or default in the payment of any amounts due or any
covenant or condition required under the to of the Lease.
5.4 Condition and Sufficiengy of®Assets. The Assets are in good condition and are U)
adequate for the uses to which they are being put, and none of such Assets are in need of
maintenance or repairs except for ordhiary, routine maintenance and repair's that are not 0
material in nature or cost. The Assets are suffloient for the continued conduct of the
Business after the Closing in substantially the same manner as conducted prior to the
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Closing and c nstitute all of the rights, property and assets necessary to conduct the
Business as currently conducted. 0
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5e5 Retail Inventor. All retail inventory included in the Assets consist of a quality
and quIntity usable and salable in the ordinary course of business. U.
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5.6 Non-forgign Seller is not a "foreign person" as that term is used in U)
Treasury Regulations Section I.1445-2. U)
4-
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53 Legal PEgggqd M. There is no claim, action, suit,proceeding or governmental
investigation of any nature pending or, to Selices knowledge, threatened against or by (n
Seller relating to or affecting; the Assets, or that challenges or seeks to prevent, enjoin or
otherwise delay the transactions contemplated by this Agreement. No event has occurred,
or circumstances exist that may give rise to,or serve as a basis for,any such action® Seller U)
and/or the Business is/are not in default with respect to any order,writ,injunction or decree 2-
of any federal, state, local or foreign court, department,agency or instrunientafity.
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6. Ltidemnification. 0
6.1 Seller's Inderruifficatio1p Obligation. Seller shall indemnify and hold harmless E
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Buyer, its officers, directors, employees,,agents, successors, and assigns, against and in
respect of any and all direct or indirect damages,claims, losses, liabilities and reasonable <
expenses arising as a result of any actions,or inactions.of Seller prior to the closing.
6.2 Buyer shall indemnify and hold hani-dess
Seller, its officers,directors, employees,agents,successors,and assigns against and in
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respect of any and all direct or indirect damages,claims or liabilities arising after the date
of closing. U)
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7° Covenant Not to Compete. As a substantial and material inducement for Buyer to
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enter into this Agreement, Seller covenants and agrees that, fora period of three years from andis
after closing, Seller and Member shall not, directly or indirectly, own, manage, operate, control,
finance or participate in any business which*provides products or services which are the same or 0
similar to the business being conducted by the Buyer within Monroe County, Florida. Seller
further covenants and agrees that Buyer's remedy at law for a breach of this covenant not to compete
will be inadequate to compensate Buyer for damages resulting from such breach and that Buyer
03
shall, in addition to all other remedies at law and equity, be entitled to injunctive relief to prevent U)
a breach and to secure the enforcement hereof.
2
S. Waiver of Jmry Trial. Each party acknowledges and agrees that any controversy
which. may arise under this Agreement is likely to involve complicated mid difficult issues and, E
therefore, each such party irrevocably and unconditionally waives any right it may have to a trial
byJury in respect of any legal action arising out of or relating to this Agreement or the transactions
contemplated hereby.
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9. Governin r aw / Forum Selection / Attorney's Fees. This Agreement shall be
0
governed by the laws, including conflicts of laws,of the State of Florida,as an Agreement between
residents of the State of Florida to be performed in the State of Florida. If a party brings an action
E
to enforce the provisions'oft is Agreement,such actions all be brought in Monroe County,Florida
and the prevailing party to such dispute shall be entitled to recover from the losing party reasonable
attorney's,fees and cost. E
10. Plosin,-. Closing shall occur at the law offices of Oro peza, Stones & Cardenas,
PLLC, 221 Simonton Street, Key West, Florida 33040, on or before July 19, 2019 or two (2)
U)
business days following approval of assignment of the Lease,whichever shall last occur.
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11. Closing Deliverables.
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At tho Closing, Sellers all deliver to Buyer the following:
G) a Bill of Sale duly executed by Seller,transferring the Purchased Assets to Buyer;
(ii) a Closing Statement;
(iii) an Assignment of the Lease, so long as Monroe County has approved and
consented to such assignment;
(iv) an Assignment and Assumption Agreement duly executed by Seller,effecting the
assigninent to and assumption by Buyer of the Assets; 0
(v) an LLC certificate and resolution consenting to the herein contemplated
sale;
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(vi) a Release and Consent to use of the Company name: "Tropical Waters ports"and 0
derivations thereof, and
(vii) such other customary instruments of transfer,ass urnption, filings or documents,in
form and substance reasonably satisfactory to Buyer,as may be required to give
effect to this A&rrcemerne C14
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At the Closing,Buyer shall deliver to Seller the following:
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(i) the Purchase Price,
the Assignment and Assumption Agreement duly executed by Buyer;
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(ii) a Closing Statement;
(iii) an Assumption of the Lease,so long as Monroe County has approved and
consented to the assignment of same; and 0
(iv) such other customary instruments of transfer,.assumption,filings or documents,in
form and substance reasonably satisfactory to Buyer,as may be required to give
effect to this Agreement.
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IN WITNESS WHEREOF,we have hereunto set our hand and seals on the date first
above written.
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SELLER:
TROPICAL WATERSP RTS,LLC,
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By:
CHRI OP HER J. LEM-130,Managing
N Me er E
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ME MBE
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CHRISTOPHER
7 EMBO, Individually
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BUYER:
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SALUKTATER�S ORTS,LL a orrid ited
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liabil' company, 0
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By:.
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Id,711ARD HATCH,Vanaggin:gM�ember
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0.6° °°F Kevin Madok, CPA
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....:. �� Clerk of the Circuit Court&Comptroller—Monroe County, Florida
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DATE: October 23, 2018
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TO: Alice Steryou
Contract Monitor
FROM: Pamela G. Hanco .C. U)
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SUBJECT: October 17''BOCC Meeting
Attached is a duplicate original of Item S3, one year Lease Agreement wide 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.
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CL
cc: Facilities Supervisor
County Attorney
Finance E
File
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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 305-8
Packet Pg. 323
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LEASE AGREEMENT
FOR HIGGS BEACH CONCESSION
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THIS LEASE AGREEMENT is made and entered into on the 17th day of October, 2018, o
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", U)
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
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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 �
0
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;
2
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. 00
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, U)
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 o
OTHER SERVICES OR PRODUCTS MAY BE PROVIDED WITHOUT THE WRITTEN
CONSENT OF THE COUNTY. o
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, o
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 E
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. U)
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(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 0
manager within fifteen(15)days of contract award.
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5. Term. This Lease Agreement shall commence retroactive to the 10 day of
October, 2018, and will terminate on the 15"' day of October , 2019, unless terminated earlier
00
under another paragraph of this agreement. This Lease may be renewed, at the County's
discretion, after reassessing the terns 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 U)
0
Dollars ($500.00) per month, for retail merchandise or service concession space as shown on
Exhibit"A". Rental payments are due by the I"day of the month for which the rent is due and;
(b) PERCENTAGE (%) GROSS TAXABLE SALES: In addition to the monthly o
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
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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
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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 o
sales, whichever is greater. Annual gross sales revenues are determined on a calendar year
basis. A calendar year shall run from January 1 st through December 31 st inclusive. I f t h e E
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.
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(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 2
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.
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(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 U)
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.
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(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 all items and equipment needed for the operation
including, but not limited to: vehicle and/or mobile cart, shelving, display cases, tables, chairs,
refrigeration units, etc. Lessee's items and equipment must be removed from the Premises at the
end of each day 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.
0
(j) Notwithstanding anything set forth in paragraph I I of this agreement, if the
Lessee fails to pay any rents or fees due under this lease within fifteen (15)days after the Lessor E
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 U)
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 161h 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.
0
7. Force Maieure. 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
00
beyond the reasonable control of the parties (and such cause being referred to as a "Force CD
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 c
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(b) the non-performing party continues to use commercially reasonable efforts to recommence U)
performance whenever and to whatever extent possible without delay.
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(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 o
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 CO
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
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lost by reason of such cause through execution of an amendment pursuant to the teams of the
Agreement.
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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 E
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 U)
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 2
0.
benefits. o
(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
00
regulations.
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(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 o
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 CO
further responsibility to make payment or perform any other duties described herein. cm
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 E
shall offer quality products at competitive prices at least consistent with similar goods and
CD
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 0
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 E
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 U)
licensed for over the road use. 1�
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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.
U)
(c) The concession stand will not have commercial lighting of any type, including
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signage.
(d) Smoking shall be prohibited by all concessionaire employees within fifty(50) feet N
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.
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(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 o
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. 0
(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 o
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. 1�
0
(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. o
(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 U)
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 this00
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.
0
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13. Insurance. Before entering the Premises, the Lessee must obtain insurance in
the amounts and according to the conditions described as follows: o
(a) The Lessee will be responsible for all necessary insurance coverage which
includes,at a minimum: CO
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, o
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 E
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 U)
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
00
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 forth 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 U)
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 00.
0
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. All the obligations 00
Ir-
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 o
contained elsewhere within this agreement.
19. Nondiscrimination. Lessee agrees that there will be no discrimination against U)
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 U)
Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to 0
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; 0.
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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
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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 00
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 U
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. o
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 U)
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.
U)
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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 o
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 00.
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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 U)
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 00
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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. Severability. If any term, covenant, condition, or provision of this Agreement(or o
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 CO
.provisions of this Agreement, shall not be affected thereby; and each remaining term, U)
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.
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30. Claims for Federal or State Aid. Lessor and Lessee agree that each shall be, o
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.
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31. Ad'udication 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.
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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 00
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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.
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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.
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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 U)
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 U)
to, and inspection of, all documents, papers, letters or other materials in its possession or under o
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.
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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 E
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. U)
38. _Privileges and Immunities. All of the privileges and immunities from liability, 00
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.
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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 0
constitutional or statutory duties of the Lessor, except to the extent permitted by the Florida U)
Constitution, State Statute, and case law. cm
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.
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42. No Personal Liability. No covenant or agreement contained herein shall be o
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. 0.
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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 E
constitute one and the same instrument and any of the parties hereto may execute this Agreement
by signing any such counterpart.
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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. 00
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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,
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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 U)
2"d CD
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
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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 U)
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 00
out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted
pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and _
usual and customary procedures required by the circuit court of Monroe County.
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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 U)
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.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each party has caused this agreement to be executed by a
aauthorized representative.
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LESSOR:
BOARD OF COUNTY COMMISSIONERS a
` T1rS EVIN MADOK CLERK OF MONROE COUNTY FLORIDA
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By: By
Deputy Clerk Mayor/Chairman
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Witnesses for Lessee: LESSEE: n
TROPICAL WATERSPORTS,I ;Z
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Signature person authorized to
Signature legally bi d Corporation
Date: /O -4—IS o
Print Name Date Print Name Title
Address: 60 0
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Signature G
Telephone Number
Print Name Date Iv
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MONFOE COUNTY ATTORNEY'S OFFICE
VED AST F R Id
PATRICIA EABLES I `
ASSISTANT COUNTY A ORNEY JD'
DATE'
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Exhibit A HIGGS BEACH SITE PLAN 2
REVISED JUNE STH 2017
MUDD
MONROE COUNTY PROJECT
MANAGEMENT
P1 BEACH CHAIR CONCESSIONS
R2 T'.ONCESSION STORAGE TRAILER
ATLANTIC BLVD. U)
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RESTAURANT;
EXISTING CONC.SLAB
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BEACH AREA LL
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CURRENT MEAN HIGH WATER = iSTBTGRESTROOM
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NOTE: �
`\ RENTAL EOUIPMENT SHALL
NOT BLOCX BEACH CLEANING
EQUIPMENT FROM REMOVING
DESIGNATE ORIGONAL MEAN HIGH WATER P&E SEAWEED FROM THE m
SWIMAREA SHORELINE 9
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FLOAT LINE EXU"TING SEAWALL E
SOLD Pico SUPPORTS
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EXHIBIT"B"
The Higgs Beach Master Plan may be found at the following link: 0
http://www.monroecountv-fl.gov/235/Hiv,gs-Beach �
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"EXHIBIT C"
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Tropical Watersports Price List (all prices include sales tax) U
2 Chairs and 1 Umbrella
$20
Single Lounge Chair $10
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Late day single chair (after 3:00) $5
Late day set (after 3:00) $10
Umbrella $10
Kayak $10/per hour U)
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
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