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Item Q6
Q.6 � � �, BOARD OF COUNTY COMMISSIONERS County of Monroe � ��r�i �r � s�� Mayor Heather Carruthers,District 3 The Florida.Keys Mayor Pro Tem Michelle Coldiron,District 2 Craig Cates,District 1 David Rice,District 4 Sylvia J.Murphy,District 5 County Commission Meeting June 17, 2020 Agenda Item Number: Q.6 Agenda Item Summary #6829 BULK ITEM: No DEPARTMENT: Facilities Maintenance TIME APPROXIMATE: STAFF CONTACT: Alice Steryou (305) 292-4549 N/A AGENDA ITEM WORDING: Approval of a Second Amendment to Agreement with Salute Watersports, LLC, for the Mobile Retail Merchandise or Service Concession at Higgs Beachto to abate rent for March, April and May 2020, and 7.5% commission due to COVID-19 in the amount of $2,172.35 Revenue Loss to Monroe County. ITEM BACKGROUND: Higgs Beach was impacted in March, April and May 2020 due to preventative measures from COVIC-19 and the concessions at the beach were unable to operate fully during that time period. The Lessee, Salute Watersports, LLC, operated for a few weeks in early March, but was closed since that time. The BOCC has previously abated rents for the beach concessions after hurricane closures. This Second Amendment is requesting BOCC approval to abate Lessee's rent for March, April, and May 2020, due to preventative measures at Higgs Beach from COVID-19 and to abate the 7.5% percentage of its gross taxable sales that are paid to the County for those same three months. The monthly rent amount is $509.50 for a total rental abatement of $1,528.50 and the percentage abatement is $643.85. The total abatement amount for both the rent and the percentage of sales is $2,172.35 due to said closures. PREVIOUS RELEVANT BOCC ACTION: December 11, 2019 BOCC approved the First Amendment and one-year renewal with a CPI-U adjustment of 1.9%. 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. Packet Pg. 2997 Q.6 February 21, 2018 BOCC approval to advertise a Request for Proposals for mobile retail merchandise or service concession at Higgs Beach. CONTRACT/AGREEMENT CHANGES: Second Amendment to abate 3 months rent and 7.5% commisssion due to COVID-19 with Salute Watersports, LLC for the mobile retail merchandise or service concession at Higgs Beach in the amount of$2,172.35. STAFF RECOMMENDATION: Approval. DOCUMENTATION: Second Amendment to lease - Salute Watersports (execued & legal stamped) 1st Amendment 12/11/2019 06/27/19 Agreement for Purchase and Sale of Assets 07_17_2019 Lease Assignment Executed 10/17/2018 Lease Agreement- Tropical Watersports FINANCIAL IMPACT: Effective Date: March 01, 2020 Expiration Date: October 15, 2020 Total Dollar Value of Contract: $509.50/month x 3 months= $ 1,528.50 plus 7.5 % of the monthly gross taxable sales for March 2020 in the amount of$643.85, totaling $2,172.35. Total Cost to County: N/A Current Year Portion: $509.50/month plus 7.5 % of the monthly gross taxable sales x 3 months= $ 1,528.50 +March 2020 7.5% of$643.85, totaling $2,172.35. Budgeted: Yes Source of Funds: Revenue Loss of$2,172.35 CPI: Yes Indirect Costs: N/A Estimated Ongoing Costs Not Included in above dollar amounts: N/A Revenue Producing: Revenue Loss If yes, amount: $2,172.35 Grant: N/A County Match: N/A Insurance Required: Yes Additional Details: Rent abatement for March, April and May 2020 and 7.5% commission for March 2020 in the amount of$643.85, totaling $2,172.35. Packet Pg. 2998 Q.6 REVIEWED BY: Patricia Eables Completed 06/09/2020 4:52 PM Kevin Wilson Completed 06/09/2020 5:13 PM William DeSantis Completed 06/09/2020 5:37 PM Purchasing Completed 06/09/2020 6:01 PM Maria Slavik Completed 06/09/2020 6:26 PM Budget and Finance Completed 06/10/2020 8:05 AM Kathy Peters Completed 06/10/2020 8:47 AM Board of County Commissioners Pending 06/17/2020 9:00 AM Packet Pg. 2999 Q.6.a SECOND AMENDMENT TO LEASE AGREEMENT FOR HIGGS BEACH CONCESSION, KEY WEST,MONROE COUNTY, FLORIDA 0 THIS SECOND AMENDMENT TO LEASE AGREEMENT is made and entered into this 17th day of June, 2020, 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 address is 1000 Atlantic Blvd, Key West, Florida 33040. WHEREAS, the parties hereto did on October 17, 2018, enter into a Lease Agreement with Tropical Watersports, LLC, for the operation of a mobile concession on the Clarence S. Higgs Memorial Beach Park, Key West, Monroe County, Florida, (hereinafter"Original Agreement"); and WHEREAS, on July 17, 2019, the BOCC approved a Lease Assignment, Assumption and Consent ("Assignment") of the Original Agreement from Tropical Watersports, LLC, to Salute a Watersports, LLC, for the operation of a mobile concession on the Clarence S. Higgs Memorial Beach Park, Key West, Monroe County, Florida.; and N WHEREAS, on December 11, 2019, the BOCC approved the First Amendment to the Original Agreement to renew the term for the first of five (5) optional one-year periods with the term to commence retroactive to October 16, 2019, and terminate on October 15, 2020, and to y adjust the CPI-U increase of 1.9% retroactive to October 16, 2019 and; WHEREAS, the County desires to abate certain monthly rental payments and the payments for the 7.5% of the monthly gross taxable sales due by Lessee for the months of March, April, and May 2020, due to the COVID-19 Higgs Beach closures as a preventative measure; and WHEREAS, the parties have found the Original Agreement, as amended, to be mutually beneficial and; WHEREAS, the parties find that it would be mutually beneficial to enter into this Second Amendment to Lease Agreement; NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants contained herein, it is agreed as follows: 0 1. In accordance with Paragraph 6 (a), (b), and (c) of the Original Agreement, as r_ amended, Lessee pays rent in the amount of Five Hundred Nine and 50100 ($509.50) Dollars per W month, plus applicable use tax, for retail merchandise or service concession space, with said rental payments due by the I" day of the month for which the rent is due. Lessee additionally pays to E Lessor 7.5% of its monthly gross taxable sales, and a guaranteed minimum annual fee of 10.125% of its annual gross taxable sales, or the annual monthly rental of Five Hundred Nine and 50/100 0 ($509.50) Dollars, plus the total of the 7.5% of the monthly gross taxable sales, whichever is ) greater. i Packet Pg. 3000 Q.6.a 2. The County agrees to abate the total monthly rental payments for March, April, and May 2020, in the amount of Five Hundred Nine and 50 100 ($509.50) Dollars per month, due to the , closure of Higgs Beach as a result of COVID-19 preventative measures, for a total rent abatement amount of One Thousand Five Hundred Twenty-eight and 501100 ($1,528.50) Dollars. 3. The County additionally agrees to abate the 7.5 % of the monthly gross taxable sales Ch payment for the months of March, April, and May 2020, in the total amount of Six Hundred Forty Three and 85F100 ($643.85) Dollars, due to the closure of Higgs Beach as a result of COVID-19 preventative measures, based on Lessee's taxable sales records. 4. The total abatement amount for the three (3) months of rent abatement of One Thousand Five Hundred Twenty-eight and 50/100 ($1,528.50) Dollars and the percentage abatement of Six Hundred Forty-three and 85/100 ($643.85) Dollars, is Two Thousand One Hundred Seventy-two and 35/100 ($ 2,172.35) Dollars. 5. Except as set forth in Paragraphs 1 through 4 of this Second Amendment to Lease Agreement, in all other respects, the terms and conditions set forth in the Original Agreement, as E amended, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (SEAL) BOARD OF COUNTY COMMISSIONERS Attest: KEVIN MADOK, CLERK OF MONROE COUNTY, FLORIDA, LESSOR r 06 By: By: Deputy Clerk Mayor X Date: Date: N 0 SA UT . WATERSPORTS, LLC. A F' rid 'Limited Lia 'lit Company, Witnesses for LESSEE: {S E Signature of person authorized to Sign ,ure legally bin Co oration 0 Date: 1 jj Printed aT�nd to Print Name and Title 1 (® J60 Address: I " Signature Telephone Number Printed Name and Date AONROE COUNTY ATTORNEYS OFFICE A OVED,AS TO 0 PATRICIA EABI.ES ASSISTANT CO DATE: Packet Pg. 3001 .w. _"°._ , �tcouR> °° °°F Kevin Madok, CPA e.: aoN�Eca� ,� Clerk of the Circuit Court&Comptroller—Monroe County, Florida DATE: December 16, 2019 0 TO: Alice Steryou Contract Monitor FROM: Pamela G. Hancoc rc- SUBJECT: December 11'BOCC Meeting � Attached is an electronic copy of die following item for your handling: C7 1 st Amendment to Agreement for a 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. Should you have any questions, please feel free to contact me at(305) 292-3550. c 0 cv cV 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 Plan 305-294-4641 305-289-6027 305-852-7145 305- Packet Pg. 3002 FIRST AMENDMENT TO LEASE AGREEMENT FOR HIGGS BEACH CONCESSION,KEY WEST,MONROE COUNTY,FLORIDA THIS FIRST AMENDMENT TO LEASE AGREEMENT is made and entered into this I 1 th 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 03 Liability Company, whose principal address is 1000 Atlantic Blvd, Key West,Florida 33040. o 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 jWHEREAS, on July 17, 2019, the BOCC approved a Lease Assignment, Assumption and d, 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 Beach Park, Key West,Monroe County, Florida;and , WHEREAS, the parties have found the Original Agreement, as amended, to be mutually 06 beneficial;and I � 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; o NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants contained herein, it is agreed as follows: 0 1. In accordance with Paragraph 5 of the Original Agreement, the County exercises the option to renew the term of the agreement for the first of five (5)optional (1)one-year periods. This renewal term shall commence retro-active to the 16"' day of October,2019, and ends upon October � 15,2020, unless terminated earlier under another paragraph of this agreement. 2. In accordance with Paragraph 6(d) of the Original Agreement, the County exercises its option to amend the Agreement and the rental amount shall be adjusted annually in accordance W with the percentage change in the U.S. Department of Commerce Consumer Price Index (CPI-U) for all Urban Consumers as reported by tilt U.S. Bureau of Labor Statistics at December 31 of the c® previous year of 1.9%, with payments increasing from Five Hundred and 00/100 (S500.00) Dollars per month to Five Hundred Nine and 501100 ($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 .E Agreement, in all other respects, the terms and conditions set forth in the Original Agreement, remain in full force and effect. I - � Packet Pg. 3003 13 ITNESS WHEREOF, the parties hereto have set their hands and seals the day and cx. 0 e written. �� -� i✓A BOARD OF COUNTY COMMISSIONERS KEVIN MADOK,CLERK OF MONROE COUNTY, FLORIDA By: � , NN By: Deputy Clerk Mayor ca Date: ill Date: CONTRACTOR: SALUTE WATER8I'O1t1TS,LLC, Witnesses for CONTRACTOR: A Florida Limited Liabil' pany i Signature of person a f iorized to Sign lure legally bind Corporat on r(1Date: i -5 ( CI 2sl/q -el ICOARN 4-rC� V L,).A) Printed Name and Date Print Name and Title LaLl� Address: woo A-ri-h xi m Signature Telephone Number Printed Name and to `® cv 00 U � M0 0E COUNTY ATTORNEY'S OFFICE LA-o - ` MO DAS�OtOEM W o PATRICIA EAGLES ASSISTANT COUNTY ATrCRNEY i_L m O DATE: Ia N 2 Packet Pg. 3004 i j SALUWAT-01 C TE AIR CERTIFICATE OF LIABILITY INSURANCE � 117120�19 1 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POUCIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. y IMPORTANT: if the cortificato holder is an ADDITIONAL INSURED,the pollcy(las)must have ADDITIONAL INSURED provisions orbs endorsed. It SUBROGATION IS WAIVED, subject to tho terms and conditions of tho policy,certain policies may require an endorsement. A statement on this certificate door not confer rights to the cortiflcato holder In Ilou of such endorsomoni c. 0 PRODIICErt CT Rick Aiken Keys Insuranco Scrvlcos a Division atIDA �I FAz 13361 Overseas HI Imay Ha. uo Marathon,FL 33050 - ralkeR kD sinsurance.com 0 gISU S AFFORDINGCOVERAr6 I HAIC1t suRsxA:Covinatnn Specialty Insurance Companyi3027 0 INSURED neRa: � Salute Watnrsports,LLC 729 Thomas Strom RISURERo: I N Key Want,FL 33040 WMM e: — DISUWH F: COVERAGES CERTIFICATE 14UTABER: REVISION NURiBER, THIS 15 TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. _ UISR'(LIM .0 'ADDUSUdR' POUCYEFF r POUCYEXP 1 TTlCOFaISURANCE ,• r• POUCYNUMHER _� !—uy_`..—I LIM.ITS _...___1..` L.. .,moo A X rAFH(ERCTALG9NERAL WBRJ7Y E is 500, 06 064 o CLAIN54AADL 0 OCCUR X j(VBA70978500 711712019 719712020 I} GF TlE aacDaaay� 100,000 ±ErscauL a Ave INJURY_,f s_ bOD,1100 NLAGG I1UMITAPP SPER G=hCR I�+'.�?EC1IE f s 5D0,000 N }t POUCY %a � oc I PnDDt r5-C9u?pAAG{; l;DD,DDO I-_._ t _--'-- _ pYW=F_ r I S 0 CDMEL`7EDS! LE LIk117 AUTOt.1084EUAetlrtl'� l ..L:AEr��ai 'ANY AUTO r-- �.ri g�lSt�V Lt!?'D^ i S •-• - - v,CJlt,cp AUTO5011LY SnUr.a. FD 0(i;.tLY1NJyc7iYlr?rMcr�sitta.:ll A r(4f'os�' LB r !f y srral . ti2 .s.AUTOS ONLY A �n m16RELLAUAR !OCCUR X I J �_ ' n�NuCCU r.:E IS { PSCEULIAS { CLAIMS-MADE i I �Y--�- I ,ArFjr.�.7TE r_s { -DFD 1 RETEM1IIONS I I BATE CJ { d Wput ERE caMAENSATtON AND IWL()YER5•LIAMUT'Y DED7 1uY__t/�JLNN I NIA WAIE W YES— ANY PRDPNrET0"ARTNEA!d(ECnVE -1 Lxc-'U 4�-arrE NHJ u3. Ir 10tt.2trsife l i FS x513.rA cw-")YE.-1_ C�kC�iPT Y14`.Of.:uATICNSee1a. ! 1 IE_LL+SErei..c•OL't;��uT i I i CD CD DE7CR1r'r10N OF OP9tATK#i3 r LOCATIOfIs 1 VErll CLES(ACOrtD 11I,Ad&U=I Rsrurrm Schaduls,map be amchal d nova space Is required) Tho cenLRcata holder 1 as named addltlonal Insured on the general fieblifty policy per forma CG 2011 0411 N r O CERTIFICATE HOL13ER CA CE TION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE N THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN r ACCORDANCE 1MTH THE POLICY PROVISIONS. 0)AUTN ORtfr.0 REPiIESFMATNE t:lanroa County Board of County Commissioners ilUDSlmontonSt �/ 7LI0004 O lKgy War (/Lsr ACORD 25(2016103) 0 1988-2016 ACORD CORPORATION. All rights reserved. Thu ACORD name rind logo are registered marks of ACORD Packet Pg. 3005 • gala Edon ' 0 MONROE COUNTY,FLORIDA N REQUEST FOR WAIVER OF INSURANCE REQUIREMENTS 0 It is requested that dto Insnratice tlegtrlmnents,as specified in the County's SeheduWaf.lnsurance *uitermms.tie waived or modified on the following contrast. Contr ,e"Vendor J.�+�c•�c _ I,G�rZ c':;S,Lti�' P4.ecrorService: Contnctorivendor Address d<Pb6e fi: lacrr<�� Geasral seworworl.: -, °� -4211� _tu1-21--e��ay/_, c►�� Flacon far,Waive or 06 ?/u Madilicatlon; u:e r7Ga ry L''c iIL - r:y 0 Policies Weiveror, . Moditiwiiuri tvill`:ppply tat _._„ _ _,.-- a-- .• �"' sisttatum-afcontraetcovendor. �• ��t '_ _ Date: NotAPP coved � task Maaagemeal,5ignmure.� !� 3�'---..__��, DOC: County Administmtorappcat: Approved; _ Not Approved: Date: N r Banrd or county Cmnraissiosieis a}tpm1: Approved: __, ._ Not Approved: Meeting Dade: E 6D WAwn E {' } Adeiintiva0 lnsimdio 7sao� OVC k ;j r�Az t_f16 Packet Pg. 3006 ® t-- -7 0 AGREEMENT FOR PURCHASE AND SALE OF ASSETS ' 0 IS AGREEMENT FORH E OF ASSETS ( a "Agreement") is N entered into as of the day of June, 2019, by and a og ICAL WATERSPORTS, _ a. LLC, a Florida hrruted liability company, as Seller and CIMISTOPHER J. LEMBO, as Member (collectively referred to herein as "Seller"), dnd SALUTE.WATERSPORTS, LLC, as Buyer (hereinafter referred to as "Buyer"). EITLS: 06 WHERE-AS, Buyer desires to purchase from Seller and Seller desire to sell to Buyer, certain of the Assets (as hereinafter defined) owned by Seller and used in the operation of the business located on Higgs Beach at 1000 Atlantic Boulevard, Key West, FL knowns "Tropical v, atersorts KeyWest"(the"Business"); and 0 WHEREAS, as a material inducement to Buyer to purchase the Assets, Seller desires to make certain representations d warrxities and agrees to be bound by certain covenants and obligations s hereinafter provided. s 0 THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties contained in this Agreement,the parties Hereby agree as follows. 0 e 1® Assets. m Assets to be Included in the Purchase. Subject to the terms and conditions set forth in this Agreement, Seller agrees to sell, convey, transfer, assign, and deliver to Buyer, andW Buyer agrees to purchase from Seller, assets and 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 date y (the assets being transferred hereunder are collectively referred to as the "Assets") including, without limitation, the following: 76 (a) All items referenced referencid on the Equipment List attached hereto as Exhibit " ", including but not limited to:a Trailer Hut Tiny House,a golf cart,beach lounge chairs and cushions,custom umbrellas,kayaks,pa dlebor ,lawn/patio chairs,inflatable rails,tools, compressor, d s/jac locks, cabinets/cash drawer, umbrella cart-beach whee1z, eborack,ite for retail sale(including mask d snorkel sets,towels,snbloc ), 2 volley balls, beach and watersports equipment, and any and all other tangible personal CL 0 property situated on Higgs Beach at 1000 Atlantic Boulevard,Key West, FL and used in 0 the Business and as exist as of the Closing ate; and m (b) All of Seller's right, title, and interest in that certain Lease Agreement date m October 17,2018(the"Lease),by and between Monroe County,a political subdivision of the State of Florida, as Lessor and Seller, for lease of premises on Higgs Beach for the operating of concessions as described in the Lease; and cv t 0 0 Packet Pg. 3007 ( ) To the extent assignable, all lice e e ts, and approvals issued y any governmentalor regulatory authority which are assignable and which relate to the Business. At closing, the Assets shall be conveyed to Buyer free and clear of all liens, pledges, security N interests,charges, clairns, restrictions and encumbrances of any nature. 2. PurchasePrice. Buyer promises to pay to Seller,Twenty-Five Thousand and 00?'100 Dollars ( 25, 0. ) for the purchase of the Assets. Upon execution of this Agreement, uyer shall place on deposit with Escrow Agent, Oropeza, Stones & Cardenas, LLC an earnest money deposit in the amount of Five Thousand and 001100 Dollars ($5,000.00) (the "Escrow sit") which shall be applied to the Purchase Price oil the Closing Date,subject to the terms and conditions od here herem. On the Closing Date,in addition to the EscrowDeposit,Buyer shall pay Twenty Thousand and 00/100 Dollars ( 20,000. in cash, by wire transfer of immediately available funds (the � "Closing Payment"). . Contin e ey This Agreement andBuyer's obligation to close hereunder, is o contingent uponBuyer's receipt of approval and written consent to assignment of the Lease from E .Seller to Buyer from the Board of Commissioners of Monroe County,Florida. Personal Property Taxes. Buyer shall not be responsible for any of Seller's obligations for business, withholding, income or other , whatsoever,or y taxes o any kind concerning the Business or the As is used in the Business that are related to any period before the closing m te, Seller shall not be responsible for any ofBuyer's taxes. x 4. No General. Assumg!ign of Liabilities, Buyer shall not assume, pay, or discharge any ets, bli ations,contracts,loans,commitments,undertakings orliabilities of Seller. cv 5. Seller aqd Member represent to Buyer that the following facts and circumstances are, and at all times up to the closing date will be, true and correct. Eachy representation set forth herein shall survive the closing:. 0 5.1. Organization and Authority of Seller; Enforceability. Tropical Watersports, LLC, h a Florida limited liability ompany, 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 � carry out its obligations hereunder and to consummate the transactions contemplated hereby.The execution,delivery and performance by Seller and Member of this Agreement 2 and the documents to be deliveredhereunder and the consummation of the transactions contemplated ereb have been duly authorized by all requisite corporate action on the part of Seller. This Aggeement and the documents to be delivered hereunder have been duly executed and delivered by Seller,and(assuming due authorization,execution and delivery yBuyer) this Agreement and the documents to be delivered hereunder constitute legal, valid and bigdingobligations of Seller,enforceable a ainst 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 a of the Assets, whether tangible or intangible. All of the Assets are 2 Packet Pg. 3008 Q.6.c free and clear of mortgages, liens, pled es, cliarges, encumbrances, equities, claims, covenants,conditions or restrictions except for current taxes not yet due and payable. All tangible personal property used in the Business is in good operating condition and repair, ` ordinary wear and tear excepted. N 5.3 Compliance 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 (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, stamp, registration and other such taxes and fees incurred in connection with this Agreement and the documents to be delivered hereunder shall be borne and paid by Buyer when u . od 5.4 Comoliance with Lease Terms. The Business,Seller and/or Member have complied with is/are not in violation of or default in the payment of any amounts due or any v, covenant or condition required under the terms of the Lease. 0 5.4 Condition and Sufficiengy o `Assets. The Assets are in good condition are adequate fort the uses to wWch they are being put, and none of such seta are in need of maintenance or repairs except for ordiliary, routine maintenance and repairs' that are not material in nature or cost. 'rhe Assets are sufficient for the continued conduct of the 0 Business after the Closing in substantially the saie manner as conducted prior tote Closing and c ntitte all of the rights, property and assets necessary to conduct the m Business as currently conducted. m 5.5 Retail InventM. All retail inventoryincluded in the Assets consist of a quality an q ntit usable an salable in the ordinarycourse of business. cv 5.6 Non-forciun Status. Seller is not a "foreign on" as that term is used in Trs a lations Section 1.14 - . y 5.7 Legal PE esat s. There is no claim, action, suit,proceeding or governmental investigation of any nature eni or, toSeller's knowledge, threatened i t or by Seller relating to or a ectid the Assets.. or that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated is Agreement. No event has occurred, or circumstances exist that may give rise to,or serve as a basis for,any such action. Seller y and/or the Business is/are not in default with respect to any order,writ,injunction or decree of any federal, state, local or foreign court, department,agency or instrumentality. 2 0 CL . Lnftmnification. 0 6.1 Seller's Indeninification Oblieation. Seller shall indemnify hold harmless m 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 tote closing. 6.2 Buver's Indemnification Obi Cation. Buyer shall indemnify and hold hart-less Seller, its officers,directors, employees,agents,successors,and assigns against and in 3 m 0 Packet Pg. 3009 - m respect of any and all direct or indirect damages,claims or lia ilities arising.s er a ate of closing. 7. Covenant Not to Compete. As a substantial and material inducement for Buyer to enter into this Agreement, Seller covenants and agrees that, fora period of three years from N after closing, Seller and Member shall not, directly or indirectly, own, manage, operate, control, finance or participate in any business wic ' rovi es products or services which are the same or similar r tote business being conducted y the Buyer withiii Monroe County, Florida. Seller further covenants and agreesat Buyees remedy at law fora breach of this covenant not to compete will be inadequate to compensate uyer for damages resulting from such breach and that Buyer shall, in addition to all other remedies at law and equity, be entitled to injunctive relief to prevent a breach and to secure the enforcement hereof. 8. 06 Waiver of!u Trial, Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, y therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement ent or the transactions contemplated hereby. e � 9. Governina Law E/ Forum Selection , Attorney's Fees. This Agreenlent shall be go-v e by the laws, including conflicts of laws,of the State of Florida,as an Agreement between 0 residents of the State of Florida to be performed in the State of Florida. If a party brings an action to enforce the rovision"5of this Agreement,such actions all be brought in Monroe County,Florida and the prevaiUg party to such dispute shall be entitled to recover from the losing party reasonable attorney's,fees and cost. 0. si 7Closing shall occur at the law offices of Oropeza, Stones & Cardenas, PLLC, 221 Simonton Street, Key West, Florida 33040, on or before July 1 , 2019 or two (2) W business days following approval of assignment of the Lease,whichever shall last occur. 11. Closing Deliverables. n t the Closing, Sellers all deliver to Buyer the following: G) a Bill of Sale duly executed by Seller,transferring the Purchased Assets toBuyer; (ii) a Closing Statement; (iii) an Assignment of the Lease, sir long as Monroe County has approved and consented to such assignment; (iv) an Assignment and Assumption Agreement duly executed by Seller,effecting the 4 assigrurtent to and assumption by Buyer of the Assets, (v) an LLC certificate and resolution consenting to the herein contemplated sale; (vi) a Release and Consent to use of the Company name: "Tropical Waters ports"and m derivations thereof; and (vii) such other customary instruments of transfer,ass xt tion, filings or documents,in form and substance reasonably satisfactory to Buyer,as may be required to give effect to this Agrcemcnt7 . Packet Pg. 3010 m , At the Closing,Buyer shall deliver to Seller the, following: (i) the Purchase Price, e Assignment and Assumption Agreement duly executed by Buyers (ii) a Closing Statement; N (iii) an Assumption of the Lease,so long as Monroe County has approved and consented to the assignment of same; and (iv) such other customary instrtunents of transfer,.assumption,filings or documents,in ' form and substance reasonably satisfactory to Buyer,as may be required to give effect to this Agreement. IN WITNESS o OF,we have hereunto set our hand and seals on the date first 06 ¢, above written. SELLER: 0 TROPICAL ATE S,LLC, A By:. CHRI OPHER J. LE a g` g `` Me er m e MEMB m MEMBER; W g N CIUUSTOPHER J E O, Individually 0 0 0 0 ATE S TS, la7 ited liabil' company, n e m By: Lit m HATCH,danaginjNrember H, N e� 0 Packet Pg. 3011 EXMIT "A" N 0 o a o `- 0 0 0 0 w 0 ° 0 0 0 0 0 0 0 Ln o ra cn ao c' 0 m in r• rn rn � CJ o O in in in in an in- a-� v> in an ul� to 06 o ® a a a o 8 a ® a 0 o 0 a ® g 0 0 0 to 0 0 un 0 0 0 cn y a cr-I ► N o r mm -T � ri 3 oa0 ® 0000aoa o 0 0 o o 0 o 0 0 0 0 , t8 0 - 0 8 0 0 0 0 sf to ry rn r® ri a an o 0 N " 0 .-e ra rQ cn r. ,r g 14r® ry d° N ui +n-, trr to trt vE an a� v} toL&J O 0 o G o 0 0 0 W 0000atiLn d 0o6 a N Ln N co rq � N m Ln n 00 Do w C6y ry fig Lg w M o `•! m to to r+ ra m q ri r+ y r CL a o u Ne CD lj t} ` w uba v 3 IV m u c` ,,, M a M m ® °d `° . 0 E t^ m o m w .� c � zu I J � f= r- u =ILaa Packet Pg. 3012 R couRrQ '. Q.6.CI: Pam......• Kevin Madok, CPA (�.5pJV W.VU..• WWf.•v &o ........ '� Clerk of the Circuit Court&Comptroller—Monroe County, Florida Nye co�� 0 DATE: July 30, 2019 N TO: Alice Steryou _ Contract Monitor FROM: Pamela G. Hanco , C. SUBJECT: July 17' BOCC Meeting Attached is an electronic copy of each 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. c C30 Property Management Agreement Assignment,Assumption, and Consent for 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. E N x LU r- N i i cc: Facilities Supervisor r" County Attorney Finance E 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- Packet Pg. 3013 Q.6.d 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 N 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 Agreement06 ° 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, y from Tropical Watersports, LLC to Salute Watersports, LLC. c Monroe County is the Lessor and Tropical Watersports (or now, Salute Watersports) is the Lessee. Paragraph 13 of the underlying Lease Agreement required the Lessee to obtain vehicle liability 0 insurance in the amount of$300,000, and to provide a Certificate of Liability insurance showing the r_ County as an additional insured "within fifteen (15) days after award of proposal" (this contract was m 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 W 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��(:��:t th(r7t X r y r ) . . (��r.l�.�te Wlr: te�.>.:��.:p�t.^.> �..�.. l�r:.^.> ���:pt yet .:���:pvlr:er: evlr:e���:�e�:p vel�l�:�le llr:tlllt r)��.>�.��r:���:�e�:��.:pve�r: r:e �t l�r:.^.> (.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). C Paragraph 13 of the Underlying Lease required Tropical Watersports to provide evidence of N coverage, but nothing in the Assignment provides that the Underlying Lease would be invalid if the 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: �I 1. Vendor submits a certificate of insurance for the vehicle liability insurance, �I 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, Packet Pg. 3014 Q.6.d 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). 0 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 both. N (Alice, please review and make sure we got all of the pages of the respective agenda items.) Thank you. Cynthia L. Hall, Esq. Assistant County Attorney od Monroe County Attorney's Office 1111 12th Street, Suite 408 Key West, FL 33040 cn (305)292-3470 (305)292-3516(fax) r9 0 cv X LU C J r N h I r h I Packet Pg. 3015 Q.6.d LEASE ASSIGNMENT,ASSUMPTION,AND CONSENT 0 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 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 a 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 E 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 E 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. i 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 after the date of this Assignment. Landlord also hereby acknowledges and confirms to Assignee that: (i) Assignor and Landlord are all of the parties to the Lease; (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 modified; (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; Packet Pg. 3016 Q.6.d m (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 constitute defaults under the Lease; Co ch (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: �? 0 For Lessor: For Lessee: Monroe County Salute Watersports, LLC Facilities Maintenance Contract Monitor Attention: Richard Hatch 3583 S. Roosevelt Blvd. 729 Thomas Street Key West, FL 33040 Key West, FL 33040 c M And 2 Monroe County Attorney P. O. Box 1026 Key West, FL 33041-1026 E (viii) Landlord has no cause of action against Assignor arising out of the Lease, E 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; (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; y (xi) there are no additional capital expenditures other than those expressly stated in the Lease. N i 4. FnH Farce and Effect. The Lease shall continue in full force and effect and the 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 2 Packet Pg. 3017 C y 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, 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. N IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the d year first written above. 3 rya r BOARD OF COUNTY COMMISSIONERS VIN MADOK, OF MONROE COUNTY, FLORIDA ' ERK ° By Deputy Clerk MayorNChairman 0 TROPICAL WATERSPORTS, LLC, Assignor 1 '-`Jj'e Witnesses By: - Name- Title: W SALUTE WATERSPORTS, ; -r, Assi Wilne55e5 h = G'- G' By: Name: Title:. M A t-jA c-R i MONROE COUNTY ATTORNEYS OFFICE n AEPPOVED A5 TE FpR �i �C Cl7.Jl r ice. 1 la PATRICIA EABLES ASSISTANT pt A RNEY 3 DATE; �G L 8~ �, Packet Pg. 3018 Q.6.d inurc to the benefit of Assignor,Assignee,Landlord,and their respective and permitted successors 2 and sib 6. Coitnterpara. This Assignment may be executed in any number of counterparts, each of which shall be deemed an original and all of which said counterparts together shall constitute one agreement vAth the same effect as if the parties had signed e same signature page. N WITNESSIN , the parties have hereunto set their hands and seals as of the day and year first written above. U (SEAL) T I S CLERK ATTEST: KEVIN MADOK, OF MONROE COUNTY, FLORIDA ® y® Deputy Clerk Mayor Chairman 0 TROPICAL T T , I C. � Assignor E WitnessesROBER T Notary C. REXTER Public, to of h I w itanires Name: L y e C"„ �>< �9 Title: r X x i C Assignee y Witnesses By: i Title: WNROE COUINRY ATrONNETS OFFICE lip 't"i'tK , i..I Packet Pg. 3019 Q.6.d m EXHIBIT"A" 0 LEASE AGREEMENT N FOR HIGGS BEACH CONCESSION - dated October 17, 2018 0 N x LU Packet Pg. 3020 m 0 LEASE AGREEMENT FOR 14IGGS BEACH CONCESSION N THIS LEASE AGREEMENT is made and entered into on the 17th day of October,2018, — by and between MONROE COUNTY,a political subdivision of the State of Florida,hereinafter referred to as"County"or"Lessor", whose address is 1100 Simonton Street,Key West, Florida 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 y 0 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; 0 WHEREAS, Lessor has negotiated the terms of the lease with Lessee to operate a concession(s)at Higgs Beach in Key West, Florida,and 0 WHEREAS, Lessor desires to grant to Lessee the right to operate a concession(s) at 0 Higgs Beach at Key West,Florida,and N 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; X NOW, THEREFORE, IN CONSIDERATION of the premises and of mutual covenants and promises hereinafter contained,the parties do hereby a 0 P pa y agree as follows: 1. Premises. Lessor hereby leases to Lessee the area identified and shown on y Exhibit"A", hereafter the"Premises", for use as a Concession. Exhibit "A" is attached to this 0 agreement and incorporated by reference. The mobile retail concession operation shall be located at least fifty (50) feet away from other concessions located at Higgs Beach. Lessee's concession shall be operated from the area identified as "#1" on Exhibit "A" attached hereto. Lessee's location may be relocated at the County's discretion as construction needs dictate for implementation of the Higgs Beach Master Plan as shown on Exhibit "B" attached hereto and made a part hereof. � 0 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 Page 1 of 2Q Packet Pg. 3021 Q.6.d m single kayaks, paddleboards and inner tubes. The use of children's sand toys, floating noodles, e 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 OTHER SERVICES OR PRODUCTS MAY BE PROVIDED WITHOUT THE WRITTEN N CONSENT OF THE COUNTY. 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. y (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 e by reference. The County reserves the right to reject any items or services it finds inappropriate, objectionable, or not in the best interests of the County. Lessee is permitted to employ entertainment in the form of a tape/CD, [Pod, or intemet sound system. Other forms of entertainment may be permitted with the written consent of the Director of Facilities e 0 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 2 governments either in effect on the effective date of this Lease or later adopted. x (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 N manager within fifteen(15)days of contract award. 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 C44i 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. Page 2 or20 Packet Pg. 3022 Q.6.d m T3 (a)RENT: Lessee agrees to pay Lessor rent in the amount of Five Hundred and 00l100 0 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; ca (b) PERCENTAGE (OA) GROSS TAXABLE SALES: In addition to the monthly CD rental payment, Lessee agrees to pay Lessor 7.5 % of the monthly gross taxable sales. Payment of charges under this subparagraph shall be made in monthly installments. A statement, including proof of monthly revenue, itemized into categories and a log documenting days and hours of operation, shall be provided by the Lessee to the Lessor each month. The Lessee must provide the County with the sales tax records for each month or quarter depending on filing requirements. Payment shall be made no later than the 25th day of the month payment is due, i.e. January payment by February 25, February by March 25,etc. a (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 o Hundred Dollars ($500.00), plus the total of the 7.5% of the monthly gross taxable sales, whichever is greater. Annual gross sales revenues are determined on a calendar year basis. A calendar year shall run from January 1 st through December 31 st inclusive. 1 f t h 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. (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 W 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 E� 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 y business. If the operation opens on a date other than the first of the month, then the rent charge will be prorated as a percentage that the number of days in the month that the operation was in business represents to the month as a whole. (f) Lessee must open the operation for business within fifteen (15) days of the effective date of this Agreement. (g) Lessee shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have Page 3 of 20 Packet Pg. 3023 Q.6.d m reasonable and timely access to such records of each other party to this Agreement for public o records purposes during the term of the Agreement and for four (4) years following the termination of this Agreement. An annual operating statement prepared by a C.P.A. must be provided to the Lessor on or before February 28 of the following year. (h) The Lessee must pay all assessments, taxes, including sales taxes, levied by any governmental body with the power to impose assessments or taxes. The Lessee must provide the County with the sales tax records for each month or quarter depending on filing requirements as set forth in Paragraph 6(b)herein. 0 (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, a 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. e 0) Notwithstanding anything set forth in paragraph l 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 notifies the Lessee in writing that the rent or charge is overdue, then the Lessor may, in its 0 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 2 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. i 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 N reasonable anticipation of either party, including, but not limited to, compliance with any unanticipated government law or regulation not otherwise in effect at the time of execution of this Agreement,acts of God,unforeseeable governmental acts or omissions, fires,strikes,natural disasters, wars, riots, transportation problems, and/or any other unforeseeable cause whatsoever beyond the reasonable control of the parties (and such cause being referred to as a "Force Majeure Event"). Accordingly,the parties further agree that: (a) Upon the occurrence of Force Majeure Event, the non-performing party shall be excused from any further performance of those obligations under this Agreement that are affected by the Force Majeure Event for as long as(a)the Force Majeure Event continues; and Page 4 of 20 Packet Pg. 3024 m (b) the: non-performing party continues to use commercially reasonable efforts to recommence o performance whenever and to whatever extent possible without delay. CO (b) Upon the occurrence of a Force Majeure Event, the non-performing party shall notify the other party of the occurrence of such event and describe in reasonable detail the effect(s)of such event upon the party's performance of its obligations and duties pursuant to this Agreement. Such notice shall be delivered or otherwise communicated to the other party within two (2) business days following the failure or delay caused by the Force Majeure Event, or as soon as possible after such failure or delay if the Force Majeure Event precludes the non- performing party from providing notice within such time period. 06 (c) In the event of a Force Majeure Event, the time for performance by the parties under the applicable statement of work shall be extended for a period of time equal to the time lost by reason of such cause through execution of an amendment pursuant to the terms of the Agreement. o r9 8. Backgr9god Cbocks/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 o 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. W (a) The Lessee will be responsible for the supervision,hiring,and firing of their own employees and shall be solely responsible for the pay, worker's compensation insurance, and benefits. i (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 N can communicate well with the County Representative. Any employee hired by the Lessee will be the Lessee's employee and in no way has any association with the County. The Lessee shall insure that its employees are trained in all appropriate safety regulations, and comply with all such applicable laws and regulations and comply with all other local, State, and Federal regulations. i (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. m Page 5 of 20 < Packet Pg. 3025 m (d) Contractor/Respondent further agrees to notify the County immediately upon o 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 a County of such arrest or conviction within forty-eight (48) hours of being put on notice by the employee and/or within five (5) days of its occurrence shall constitute grounds for immediate termination of this Lease by County. The parties further agree that failure by Contractor/Respondent to perform any of the duties described in this paragraph shall constitute a material breach of the contract entitling County to terminate this contract immediately with no further responsibility to make payment or perform any other duties described herein. 9. Hours of Operation. The Lessee agrees to furnish good, prompt and efficient service and/or merchandise to meet all demands for concession service at Higgs Beach. Lessee shall offer quality products at competitive prices at Ieast consistent with similar goods and services presently being offered locally in other local facilities. All pricing for all goods and services are to be posted and visible for all customers. The operation must be open for service o 363 days per year and will operate from 8:00 a.m., or after beach cleaning is completed, to 5:00 p.m., as a minimum, provided winds are below 15 mph (for umbrella safety) and weather permitting. Closing for Thanksgiving day and Christmas day are optional. The hours can be revised by mutual consent. For purposes of setting up the concession in the morning and closing the concession in the evening, Lessee may arrive one half hour prior to, and depart no later than one half hour after,the hours of operation.The Lessee shall provide to the Lessor a monthly log documenting days and hours of operation. The concession must be roadworthy to meet any FEMA requirements for evacuation from the park and, if necessary, properly registered and licensed for over the road use. cv 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. (b) No signs, advertising, or awnings may be erected by the Lessee, unless they are y approved by the Director of'Facilities Maintenance or his designee in writing. (c) The concession stand will not have commercial lighting of any type, including signage, cvi (d) Smoking shall be prohibited by all concessionaire employees within fifty(50)feet of each concession location. (e) If the Lessee chooses to install a security alarm system, it will be of the non- E audible type,and approved in writing by the County Administrator or his designee. Pate 6 ong Packet Pg. 3026 Q.ti.d m 0 (1) The rental or selling of fishing equipment will not be permitted. Co (g) As a protection, Monroe County takes many precautions to preserve the beaches N and natural environment. The County commits to protecting Sea Turtles, other coastal wildlife and their habitat. The Lessee shall also coordinate and cooperate with State Agencies and sea turtle conservation groups during turtle nesting season,April 15 through October 31,when Save- a-Turtle representatives and/or Certified Turtle Inspectors, are walking the beaches. It is important that the Lessee understand these environmental regulations. 0 (h) The Lessee is responsible for the sole costs and expenses and any maintenance of 06 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 v, concession operation(tables,canopies, chairs,etc.)shall be clean and in good working condition 0 at all times. All rental equipment shall meet strict safety standards, and equipment which is broken,or a potential safety risk, shall be removed immediately.The Lessee will be responsible for insuring equipment is safe and meets all regulated safety requirements. Facilities Maintenance Director or Assignee reserves the right to remove equipment from the beach at any time if it does not meet minimum service or appearance standards. m 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 0 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 N operation of law. 2 (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 LU shall constitute abandonment. (d) The failure of the Lessee to timely perform any of the obligations required of it 0 under this agreement. No waiver of default by the Lessor of any of the obligations required of the Lessee under 0 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 i Lease Agreement i 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 0 Page 7 of20 Packet Pg. 3027 Q.ti.d m thirty (30) days written notice of an act of default, the Lessor fails or cannot cure, or fails to e timely perform,the obligations required of it under this Lease Agreement. 13. Insurance. Before entering the Premises, the Lessee must obtain insurance in CO the amounts and according to the conditions described as follows: (a) The Lessee will be responsible for all necessary insurance coverage which includes,at a minimum: Worker's Compensation-$100,000 Bodily Injury by Accident; $500,000 Bodily Injury by Disease, policy limits; $100,000 Bodily Injury by Disease,each employee 06 Vehicle Liability-$300,000 combined single limit General Liability-$300,000 combined single limit y Certificates of Insurance must be provided to Monroe County within fifteen (15) days after award of proposal, with Monroe County BOCC listed as an additional insured on all policies, except Workers Compensation. If the proper insurance forms are not received within the fifteen (15)days, the proposal may be awarded to the next selected respondent. All forms of insurance required above shall be from insurers acceptable to the County. Lessee cannot begin operating until Certificates of Insurance have been received by the County. The Lessor, at its sole option, has the right to request a certified copy of any or all insurance policies required by this Lease. All insurance policies must specify that they are not subject to cancellation, non-renewal, material change, or reduction in coverage unless a minimum of thirty (30) days' prior notification is given to the County by the insurer. cv (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 y 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 i 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. Page S of 26 p Packet Pg. 3028 Q.6.d w m 0 (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 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 N default stating that, if the required insurance is not obtained within ten(10) days of the Lessee's — receipt of notice, then the County will cancel this agreement. The County may treat the Lessee in default and cancel this agreement if the Lessee,after starting the operation, fails to keep in full force and effect the insurance required by subparagraph 12(a). Before treating the Lessee in default and terminating the agreement in this situation,the County need only provide the Lessee �? 24-hour notice by E-Mail or overnight courier, The County may, but need not, provide Lessee od 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 E 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 X performance of the Lessor's obligations under this agreement or in the exercise of its i 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 y 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 i of this agreement will extend to the legal representatives, successors, and assigns of the Lessee and Lessor. 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 Page 9 of 2Q Packet Pg. 3029 Q.6.d m claims, demands, or causes of action for bodil y inj ury (including death), personal injury, and o 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, a or by reason of the Lessee utilizing the property governed by this lease/rental agreement. The N extent of liability is in no way limited to, reduced, or lessened by the insurance requirements contained elsewhere within this agreement. 19. Nondiscrimination. Lessee agrees that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent ca 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 y 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 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) 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, E relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912,ss. 523 and 527(42 USC ss. 690dd-3 and 290ee-3),as amended,relating to confidentiality of alcohol and drug abuse patient records; 8)Title VIII of the Civil Rights Act of 1968 (42 USC s.3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 12101 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; 10)Monroe County Code, Chapter 14, Article 11,which prohibits discrimination on the basis of race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; 11) Any other nondiscrimination provisions in any Federal c or state statutes which may apply to the parties to,or the subject matter of,this Lease. y 20. _Mechanic's Liens. The Lessee shall not permit any mechanic's lien or liens to be placed on the Premises or on improvements thereon. If a mechanic's lien is filed, it shall be the sole responsibility of the Lessee or its officer, employee, agent, contractor, or other representative causing the lien to be filed to discharge the lien and to hold harmless and defend Monroe County against enforcement of such lien. Pursuant to Section 713.23, Fla. Stat., the liens authorized in Chap.713,Fla. Stat.does not apply to the Lessor. 21. Records — Access and Audits. The Lessee shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with Page to or2A Packet Pg. 3030 m generally accepted accounting principles consistently applied and maintain such records for a 0 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 to this Lease upon request. The access to the inspection of such books, records, and documents by the Lessor shall occur at any reasonable time. 22. Relationship of Parties_ The Lessee is, and shall be an independent contractor and not an agent or servant of the Lessor. The Lessee shall exercise control, direction, and supervision over the means and manner that its employees, agents, or volunteers perform the work for which purpose this Lease is entered. The Lessee shall have no authority whatsoever to act on behalf and/or as agent for the Lessor in any promise, lease, or representation other than 06 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 v, bodily or personal injury or property damage to any individual,property,or corporation. 0 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. 0 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 0 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 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 y Lessor herein be liable, under any express or implied covenants in the Lease, for any damages whatsoever to the Lessee beyond the rent reserved by the Lese accruing,for the act, or breach of covenant, 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 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. 0 Page 11 of zo Packet Pg. 3031 Q.ti.d v m 0 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. CO 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, 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, od 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 29. Authori . Each party represents and warrants to the other that the execution, E 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, cW 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. i 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 e between representatives ofeach of the parties. If the issue or issues are still not resolved to the N 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. y 32. Coopemotion. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this i 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. Pqc 12 of20 Packet Pg. 3032 m 33. Covenant of No Interesi. Lessor and Lessee covenant that neither presently has o 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 a receive benefits as recited in this Agreement. N 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 employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation;misuse of public position,conflicting employment or contractual relationship;and disclosure or use of certain information. 35. No Solicitation/Payment. Lessor and Lessee warrant that, in respect toltself, it y has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Lease Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement For the breach or violation of this provision, Lessee agrees that Lessor shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee,commission,percentage,gift,or consideration. 36. Public Access. The Lessor and Lessee shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119,Florida Statutes,and made or received by the Lessor or Lessee in conjunction with this Lease; and the Lessor shall have the right to unilaterally cancel this Lease upon violation of this provision by Lessee. X i 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 y liability coverage, nor shall any contract entered into by the Lessor be required to contain any y provision for waiver. 38. Erivileses and Immunities. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation,and other benefits which apply to the activity of officers, agents,or employees of any public agents or employees of the Lessor, when performing their respective functions under this Agreement within the territorial limits of the Lessor, shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the Lessor. Page 13 of 20 Packet Pg. 3033 Q.6.d m 0 39. Legal Obli ations and MiDonsibilifies. Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case — the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the Lessor, except to the extent permitted by the Florida Constitution,State Statute,and case law. �? 0 40. Non-ReHoUce by Non-Parties. No person or entity shall be entitled to rely upon the terms, or an of them, of this A p y 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 i 43. Egcution in Cauntcrnarts. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. y 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. i 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. 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. 3034 m or by courier with proof of delivery. The place of giving Notice shall remain the same as set 0 forth herein until changed in writing in the manner provided in this paragraph. Notice shall be sent to the following addresses: N For Lessor. For Lessee: _ Monroe County Public Works Facilities Contract Monitor Chris Lembo 1100 Simonton St. 1607 Laird Street 2"a Floor,Room 2-216 Key West, FL 33040 Key West, FL.33040 305 304-0093 And Monroe County Attorney Post Office Box 1026 0 Key West,FL 33041-1026 0 47. Rights Reserved. Rights not specifically granted to Lessee by this Lease are 0 reserved to the Lessor. 48. Governing aw, Venue, lnte 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 2 administrative body in Monroe County, Florida. 0 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 aad Costs. The Lessor and Lessee agree that in the event any N cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party,and shall include attorney's fees,courts costs, investigative,and out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. 0 0 Page is or20 Packet Pg. 3035 Q.6.d m 0 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 authorship. N 51. Entire Agreement. This writing embodies the entire agreement and — understanding between the parties hereto,and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. Any amendment to this Lease shall be in writing, approved by the Board of County Commissioners,and signed by both parties before it becomes effective. �? 0 52. Final Understanding, This Agreement is the parties' final mutual understanding. It replaces an earlier agreements or understandings, whether written or oral. This A P Y g gs, Agreement cannot be modified or replaced except by another written and signed agreement. 0 0 0 0 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 0 cv 0 0 0 0 i 0 C 0 0 cv i i 0 0 Page 16 or2o Packet Pg. 3036 Q.6.d 0 IN WITNESS WHEREOF, each party has caused this agreement to be executed by a a�authorized representative. ca C� N LESSOR BOARD OF COUNTY COMMISSIONERS b, �,. VIN MADOK,CLERK OF MONROE COUNTY,FLORIDA O By: By Deputy Clerk Mayor/Chairman M� 9 c Witnesses for Lessee: LESSEE: TROPICAL WATERSPORTS,7Zi Signature person authorized to E Signature legally b d Corporation Date: I / nI W e- �T, Lam.. S b M�Rm Print Name Date Print Name Title Address: /��7 4'+rZj5t FC Signature E� [� Telephone Numbcr 1 yze E0.yO%A 1 OI O' G Print Name Date MOkfflOE COUNTY ATTORNEIPS OFFICE F4p1►®AS F R ! N- PATRCIA E49M ASSWANT COU NEY l O QATE: , 10— 1 Page 17 of 20 Packet Pg. 3037 Q.6.d m 0 Exhibit A HIGGS BEACH SITE PLAN � BE�RS®:UKE s1N my N � NOlIROECOIkHYPAOIEC !IAl6AGprEllr 7t BfJICHCt�1 Cd3CE55AHS A COMSM STORAGE MIST r AT ANW IM. u od BESrAUPAMW EIUSmCCHC,SLM LLYM ' CI 1 � � 8ElICFI L r c .wwW.r AEAH HGNWAr'eR cv RM �HrA►.EaupuErrrsluu Far BLOCK BF"a M&G r mGu RElld'� oEStGNti ORIGflNUMAWGHWA:FA ?dESEMUDFROURE 55111IAREA SMORDje f E FioAr� ! sEAwAtt Scn OLOPOSAVORTS y y CD cV CD r. r. i c m u Page IS of 20 Packet Pg. 3038 � e • a it 1,07 ip ., A e T A A � � i i • • s • _ • • f f I Q.6.d m "EXHIBIT C" Tropical Watersports Price List(all prices include sales tax) ca N CD 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 06 Umbrella $10 Kayak $10/per hour Paddleboard $201per hour Mask&Snorkel set $15 c 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 i C N i i Page 20 of 20 Packet Pg. 3040 Q.6.d L -01 DA ME CERTIFICATE OF I THIS CERTIFICATE IS ISSUE S A F INFORMATION ONLY CONFERSRIGHTS UP CERTIFICATECERTIFICATE AFFIRMATIVELY VELY C l C AFF CIS BELOW. THISCERTIFICATE OF INSURANCE DOES T CC A CONTRACT E ISSUING I SJ E ( j REPRESENTATIVE C UCER,AND THE CERTIFICATE LC I T NT< ff the Certificate holder Is an ADDITIONAL INSURED,the lI (fes)must have ADDITIONAL INSURED provisions or hen o If SUBROGATIONIS WAIVED, subject to the terms and conditions o a policy, In p®lisle y l an endorsement statement n 0) this ce f does not confer rib the ca i to alder In Ilau sctch an o e seat s. PRODUCER is phi C ff Insurance Services a Division of I A E FAX 1a a ve a Hi $7 ��, No' _ Marathon,FL 33 i n 0 Siristt GLOOM tri a AFFORDIING COVERAGE NAIC 9 INSURER A:Covin tin Ci i Ins an 127 IN N a Salute Watomports.LLC c• , � 729 Thomas Street INSURER Key st,FL 3 4 E,e o RE: 06 INSURER F s S2WMME THIS IS TOT NAME13 ABOVE FOR E P WHYPHRICIJINCATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO IC THIS � CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, � EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE SEEN REDUCED 5Y PAID CLAIMS. ,. ... IN TYPEOFIN E P .... NIJb4a Ljmrrs COMMERCIALGENERALLIAERLiTY 500, �� M CLAII.4SMADE OCCUR •, .. O {� S (U dI1A7®97'Js0® 711712019 711712020 100 000 t� � .. & .. ..w._.a ,,,m.,� S8d00 mn r C xI N7NAL aL "�L Raw. 1 500,boo 0 �EI+TLA� EumirAF'� t s c�*e verx r rE 500,OOOi )4 t t�� � r LOC 500,000 0) P' E � AR WQSQZ UAaILITY � o G�„,64B WDry L-S1 LIMP �" E ®vuPaEtb t3UT MULE® ., .,2UVTCP 0NLY ",,.._.. AUT E yuJ 1PI[Vy RY, rau.�9 limy S AIIr�ON Y IdTCI� p CIE�E rTiiPdACsE g.. d IIMaREL;LA LdAa V OCCUR �. r ot� T I�RE EXCESS LaAe I FtETi POTION S WORKERS COMPENSATIONCb r� gi 11I YES— �.5t ANY .,� KY FROb�Rt�gt}�6dai�J4I8TtdE131�ECl6YfWE WAIVM OFFICEAr6 s� EXCLUDEM N i A (man at�ry n N i ti S.deeerka a oa ar �� ioqgaR ,imm . ,.�,�,�,m��,,,,,��, ,,-,,.., �.,.� «., ,. � �,.n,,n„ ,,,,.m....�,,,� �c DESCRIPSION OF arEw4Tlorl51 LOCATIONS i VEiICtES(ACORn 103.Additional Remarlu Sehed^Ray fee ateaehed anion space is required) The cartificate holster is a named additional Insured on the general liability policy per form#CIS 2011 0413, to rU CD J r tV h I r CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES DE CANCELLED BEFORE E EXPIPA71ON DATE THEREOF, NOTICE WILL BE DELIVERED IN � ACCORDANCE WITH THE POLICY PROVISIONS. U AUTHGRRED REPRESENTATIVE Munroe County Board of County Commissioners 1100 Simonton St ACORD 25(201610 ) 0 168®2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered ar of ACORD Packet Pg. 3041 Q.6.d m . ial t 0 COUNTY,MONROE FLORIDA REQUEST FOR WAIVER OF INSMLANCE REQUIREMENTS It is requested ftt ft insumme requirements, specified in the Co t 's Schedule or titsunince Requirements, waived or modified an the fbilowing contracL Contractovveiulor contracloovendorLri�c t 7. ..a';` v's O Add Phone lr: .. iL: od w GeneWof orl. i .� a_ . ... .. ....� .,nw .... _._ .... ...�._.. ....... .._...... ............,,,...,,,.,,...,,� ..,,... c� Reason for Waiver orn;m. Modification; ,. n,w ,uw 0 Policies Wniveror Modification will apply to: . _............. ..... .�....... .... ...._. .,........_.....................................M..... Signature of on ct a _. Dole: �,/a / of Approved ®. Risk Management Sign®tcrc. �. u �� ", � ���� ,;.fir � x W Dale: I County Administrator appeal. C Approve& Not Approved. e( Dole: ar Board orcounty Co i a appeal. Approved: Not Approved: Meeting Date Admtn° ti t instntcti E i (fir p Packet Pg. 3042 JR o COURTa 0e.°°�° °°F° Kevin Madok, CPA . a Clerk of the Circuit CourtComptroller& —Monroe e County, Florida ~Roe coin 0 U DATE: October 23, 2018 N TO: Alice Steryou ' Contract Monitor FROM: Pamela G. Hancoa.C. 0 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. 0 N N 0 cc: Facilities Supervisor County Attorney Finance File co - CD CD 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. 3043 Q.ti.e 0 LEASE AGREEMENT FOR HIGGS BEACH CONCESSION N THIS LEASE AGREEMENT is made and entered into on the 17th day of October, 2018, by and between MONROE COUNTY,a political subdivision of the State of Florida,hereinafter referred to as "County" or"Lessor", whose address is 1100 Simonton Street,Key West, Florida 33040, and Tropical Watersports, LLC., hereinafter referred to as "Lessee" or "Tenant", �? whose mailing address for purposes of this Agreement is 1607 Laird Street, Key West, Florida 33040; WHEREAS, Lessor is the owner of the Clarence S. Higgs Memorial Beach Park, hereafter"Higgs Beach",that has space(s) available for mobile concessions; and M 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; E 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 N 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 covenants0. 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. co Lessee's location may be relocated at the County's discretion as construction needs dictate for T- CD 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 Page 1 of 20 Packet Pg. 3044 Q.ti.e 0 single kayaks, paddleboards and inner tubes. The use of children's sand toys, floating noodles, and boogie boards are complimentary to customers. Items for sale include mask and snorkel sets, Conch Republic flag towels, Panama Jack sunblock, and non-exclusive Concierge services. NO N OTHER SERVICES OR PRODUCTS MAY BE PROVIDED WITHOUT THE WRITTEN CONSENT OF THE COUNTY. 3. Lease Documents. The lease documents, of which this agreement is a part, consists of the lease documents, which are as follows: This agreement and any amendments executed by the parties hereafter, together with the RFP and any addenda, the response to the RFP and all required insurance documentation. In the event of a discrepancy between the od 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 0 be provided with pricing as shown on Exhibit "C" attached to this agreement and incorporated by reference. The County reserves the right to reject any items or services it finds inappropriate, objectionable, or not in the best interests of the County. Lessee is permitted to employ entertainment in the form of a tape/CD, IPod, or internet sound system. Other forms of entertainment may be permitted with the written consent of the Director of Facilities Maintenance or his designee. Where permitted, no sound source shall be permitted that is so loud that it emanates outside of the Lessee's concession space. Lessee will be responsible for obtaining any and all licenses or necessary authorizations to utilize such means of entertainment as set forth herein, if applicable, and indemnify the Lessor for any claims or violations thereto. W N (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. I (c) Lessee shall be required to obtain Monroe County and City of Key West Occupational Licenses before beginning operations. Lessee shall also be responsible for obtaining any additional licenses which may be required by Lessee's operations at Higgs Beach before beginning operations. A copy of all licenses must be provided to the County's contract manager within fifteen(15)days of contract award. 5. Term. This Lease Agreement shall commence retroactive to the 16'h day of y October, 2018, and will terminate on the 15"' day of October , 2019, unless terminated earlier under another paragraph of this agreement. This Lease may be renewed, at the County's co CD discretion, after reassessing the terns and pending negotiations between the parties for five (5) c® 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. E Page 2 of 20 Packet Pg. 3045 Q.6.e 0 (a) RENT: Lessee agrees to pay Lessor rent in the amount of Five Hundred and 00/100 Dollars ($500.00) per month, for retail merchandise or service concession space as shown on Exhibit"A". Rental payments are due by the I"day of the month for which the rent is due and; N (b) PERCENTAGE (%) GROSS TAXABLE SALES: In addition to the monthly rental payment, Lessee agrees to pay Lessor 7.5 % of the monthly gross taxable sales. Payment of charges under this subparagraph shall be made in monthly installments. A statement, including proof of monthly revenue, itemized into categories and a log documenting days and hours of operation, shall be provided by the Lessee to the Lessor each month. The Lessee must provide the County with the sales tax records for each month or quarter depending on filing requirements. Payment shall be made no later than the 25th day of the month payment is due, i.e. January payment by February 25, February by March 25, etc. �+ 0 (c)ANNUAL GUARANTEE: The Lessee agrees to pay a guaranteed minimum annual fee of 10.125% of annual gross taxable sales, or the annual monthly rental of Five Hundred Dollars ($500.00), plus the total of the 7.5% of the monthly gross taxable sales, whichever is greater. Annual gross sales revenues are determined on a calendar year basis. A calendar year shall run from January 1 st through December 31 st inclusive. I f t h 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. cv (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 0. 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 E 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. y (f) Lessee must open the operation for business within fifteen (15) days of the co CD effective date of this Agreement. c® (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 Page 3 of 20 Packet Pg. 3046 0 reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for four (4) years following the termination of this Agreement.-An annual operating statement prepared by a C.P.A. must be N provided to the Lessor on or before February 28 of the following year. (h) The Lessee must pay all assessments, taxes, including sales taxes, levied by any governmental body with the power to impose assessments or taxes. The Lessee must provide the County with the sales tax records for each month or quarter depending on filing requirements as set forth in Paragraph 6 (b)herein. (i) The Lessee must provide 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. (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 notifies the Lessee in writing that the rent or charge is overdue, then the Lessor may, in its E 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 W 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. U 0. 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 y disasters, wars, riots, transportation problems, and/or any other unforeseeable cause whatsoever beyond the reasonable control of the parties (and such cause being referred to as a "Force co CD Majeure Event"). Accordingly,the parties further agree that: c® (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 Page 4 of 20 Packet Pg. 3047 Q.ti.e 0 (b) the non-performing party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay. N (b) Upon the occurrence of a Force Majeure Event, the non-performing party shall _ notify the other party of the occurrence of such event and describe in reasonable detail the effect(s)of such event upon the party's performance of its obligations and duties pursuant to this Agreement. Such notice shall be delivered or otherwise communicated to the other party within two (2) business days following the failure or delay caused by the Force Majeure Event, or as soon as possible after such failure or delay if the Force Majeure Event precludes the non- performing party from providing notice within such time period. (c) In the event of a Force Majeure Event, the time for performance by the parties �+ under the applicable statement of work shall be extended for a period of time equal to the time lost by reason of such cause through execution of an amendment pursuant to the teams of the Agreement. 8. Background Checks/Personnel. Lessee's employees must consent to Level 1 background checks and the results are to be provided to the County. The County reserves the right to refuse personnel based on results of the background check. The County reserves the E 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 W responsibility of the Lessee to inform the Facilities Director or his assignee of all new hires and the results of the background check. 0. (a) The Lessee will be responsible for the supervision, hiring,and firing of their own employees and shall be solely responsible for the pay, worker's compensation insurance, and benefits. 0. 0 (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 y such applicable laws and regulations and comply with all other local, State, and Federal regulations. CO T_ CD (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. Page 5 of 20 Packet Pg. 3048 Q.ti.e 0 (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 CO County of such arrest or conviction within forty-eight (48) hours of being put on notice by the employee and/or within five (5) days of its occurrence shall constitute grounds for immediate termination of this Lease by County. The parties further agree that failure by Contractor/Respondent to perform any of the duties described in this paragraph shall constitute a material breach of the contract entitling County to terminate this contract immediately with no further responsibility to make payment or perform any other duties described herein. od 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 v, shall offer quality products at competitive prices at least consistent with similar goods and services presently being offered locally in other local facilities. All pricing for all goods and o services are to be posted and visible for all customers. The operation must be open for service 363 days per year and will operate from 8:00 a.m., or after beach cleaning is completed, to 5:00 p.m., as a minimum, provided winds are below 15 mph (for umbrella safety) and weather permitting. Closing for Thanksgiving day and Christmas day are optional. The hours can be revised by mutual consent. For purposes of setting up the concession in the morning and closing m 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 W licensed for over the road use. N 0 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 0. containers for proper disposition of the waste and recyclables at the place designated by the Lessor. (b) No signs, advertising, or awnings may be erected by the Lessee, unless they are approved by the Director of Facilities Maintenance or his designee in writing. (c) The concession stand will not have commercial lighting of any type, including signage. CO (d) Smoking shall be prohibited by all concessionaire employees within fifty(50) feet of each concession location. (e) if the Lessee chooses to install a security alarm system, it will be of the non- audible type, and approved in writing by the County Administrator or his designee. Page 6 of 20 Packet Pg. 3049 Q.6.e 0 (f) The rental or selling of fishing equipment will not be permitted. (g) As a protection, Monroe County takes many precautions to preserve the beaches N and natural environment. The County commits to protecting Sea Turtles, other coastal wildlife and their habitat. The Lessee shall also coordinate and cooperate with State Agencies and sea ' turtle conservation groups during turtle nesting season, April 15 through October 31, when Save- a-Turtle representatives and/or Certified Turtle Inspectors, are walking the beaches. It is important that the Lessee understand these environmental regulations. 06 (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 v, by Lessee and/or offered for rental. All accessories and equipment applicable to Lessee's 0 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 0 broken, or a potential safety risk, shall be removed immediately. The Lessee will be responsible for insuring equipment is safe and meets all regulated safety requirements. Facilities Maintenance Director or Assignee reserves the right to remove equipment from the beach at any time if it does not meet minimum service or appearance standards. 0 0 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: W (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. 0 (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. .2 0. (d) The failure of the Lessee to timely perform any of the obligations required of it under this agreement. 0 No waiver of default by the Lessor of any of the obligations required of the Lessee under this agreement may be construed as a waiver of any subsequent default of any of the obligations that are required to be.performed, kept or observed by the Lessee. The Lessor's waiver of an act of default by the Lessee is not a waiver of the right of the Lessor to later cancel this agreement because of the Lessee's failure to subsequently perform an obligation or obligations under this co Lease Agreement. cv 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 0 Page 7 of 20 Packet Pg. 3050 Q.6.e 0 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. N 13. Insurance. Before entering the Premises, the Lessee must obtain insurance in _ the amounts and according to the conditions described as follows: , (a) The Lessee will be responsible for all necessary insurance coverage which includes,at a minimum: Worker's Compensation-$100,000 Bodily Injury by Accident; $500,000 Bodily Injury by Disease, policy limits; $100,000 Bodily Injury by Disease, each employee Vehicle Liability-$300,000 combined single limit General Liability-$300,000 combined single limit Certificates of Insurance must be provided to Monroe County within fifteen (15) days after award of proposal, with Monroe County BOCC listed as an additional insured on all policies, except Workers Compensation. If the proper insurance forms are not received within the fifteen (15) days, the proposal may be awarded to the next selected respondent. All forms of insurance required above shall be from insurers acceptable to the County. Lessee cannot begin operating E 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 W notification is given to the County by the insurer. N 0 (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 0. 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 y 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 CO C, CD agreement. Therefore, any failure by the County to enforce this paragraph, or evict the Lessee if c® 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. Page S of ZU Packet Pg. 3051 Q.ti.e 0 (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 c, default and terminating the agreement in this situation, the County need only provide the Lessee od 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. 0 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, W excepted. 0 16. County's Right of Entry. Lessor reserves the right hereunder to enter upon the Premises at any reasonable time, with advance notice, for any purpose connected with the performance of the Lessor's obligations under this agreement or in the exercise of its governmental functions. 17. Assignment. The Lessee may not assign this agreement, or any part of it, or sublease the Premises, or any portion of the Premises,without the written approval of the Lessor. The change of the Lessee's status from an individual to a partnership or corporation is an 2 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 CO of this agreement will extend to the legal representatives, successors, and assigns of the Lessee and Lessor. c®� 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 Page 9 of 20 Packet Pg. 3052 Q.6.e 0 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, N or by reason of the Lessee utilizing the property governed by this lease/rental agreement. The extent of liability is in no way limited to, reduced, or lessened by the insurance requirements , contained elsewhere within this agreement. 19. Nondiscrimination. Lessee agrees that there will be no discrimination against c, any person, and it is expressly understood that upon a determination by a court of competent od 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 W 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; Q 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. E 20. Mechanic's Liens. The Lessee shall not permit any mechanic's lien or liens to be placed on the Premises or on improvements thereon. If a mechanic's lien is filed, it shall be the sole responsibility of the Lessee or its officer, employee, agent, contractor, or other co representative causing the lien to be filed to discharge the lien and to hold harmless and defend T- 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. r- 21. Records — Access and Audits. The Lessee shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with Page 10 of 20 Packet Pg. 3053 Q.6.e 0 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, ca agents, and contractors shall have access to the Lessee's books, records, and documents related N to this Lease upon request. The access to the inspection of such books, records, and documents by the Lessor shall occur at any reasonable time. 22. Relationship of Parties. The Lessee is, and shall be an independent contractor and not an agent or servant of the Lessor. The Lessee shall exercise control, direction, and c, supervision over the means and manner that its employees, agents, or volunteers perform the od 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 this Lease or adopted after that date. 24. Premises to be Used for Lawful Purposes. It is expressly covenanted between 0) 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 W violation of the Iaws of the United States, or of the State of Florida, or of the Ordinances of 0 Monroe County, Florida, or the City of Key West, Florida. Lessee will keep and save the Lessor forever harmless from any penalty or damage or charges imposed for any violation of any of said laws, whether occasioned by neglect of Lessee and Lessee will indemnify and save and keep harmless the Lessor against and from any loss, cost, damage, and expense arising out of any accident or other occurrence, causing injury to any person or property whomsoever or whatsoever, and due directly or indirectly to the use of the leasehold Premises or any part thereof °® by Lessee. 25. Limitation of Lessor's Liability. It is further agreed that in no case shall the 2 Lessor herein be liable, under any express or implied covenants in the Lease, for any damages whatsoever to the Lessee beyond the rent reserved by the Lese accruing, for the act, or breach of covenant, for which damages may be sought to be recovered against said Lessor, and that in the co event said Lessee shall be ousted from the possession of said property by reason of any defect in C' CD 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. Page 11 of 20 Packet Pg. 3054 Q.6.e 0 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 the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions, and .provisions of this Agreement, shall not be affected thereby; and each remaining term, c, 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 o 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. cv 30. Claims for Federal or State Aid. Lessor and Lessee agree that each shall be, 0 and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Lease; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 31. 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 E may be provided by this Agreement or by Florida law. 2 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 CO Agreement, Lessor and Lessee agree to participate, to the extent required by the other party, in C' CD all proceedings,hearings,processes, meetings,and other activities related to the substance of this Agreement or provision of the services under this Agreement. Lessor and Lessee specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. Page 12 of 20 Packet Pg. 3055 Q.6.e 0 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 CO with its performance under this Agreement, and the only interest of each is to perform and N receive benefits as recited in this Agreement. 34. Code of Ethics. County agrees that officers and employees of the County recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to �? solicitation or acceptance of gifts; doing business with one's agency; unauthorized od 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 o 0 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 N to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119,Florida Statutes, and made or received by the Lessor or Lessee in conjunction with this Lease; and the Lessor shall have the right to unilaterally cancel this Lease upon violation of this provision by Lessee. 37. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statues, the participation of the Lessor and the Lessee in this Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government insurance pool coverage shall not be deemed a waiver of immunity to the extent of E liability coverage, nor shall any contract entered into by the Lessor be required to contain any provision for waiver. 38. _Privileges and Immunities. All of the privileges and immunities from liability, CO exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the Lessor, when performing their respective functions under this Agreement within the territorial limits of the Lessor, shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the Lessor. Page 13 of 20 Packet Pg. 3056 0 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 N participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the Lessor, except to the extent permitted by the Florida �? Constitution, State Statute, and case law. od 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 M 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. N N 42. No Personal Liability. No covenant or agreement contained herein shall be 0 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 43. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement E by signing any such counterpart. 44. Other Use. Lessee shall not use or permit the use of the Premises or any part thereof for any purpose or use other than an authorized by this Agreement. Co - CD 45. Paragraph Headings. Paragraph headings herein are intended only to assist in reading identification and are not in limitation or enlargement of the content of any paragraph. 46. Notices. Any notice or other communication from either party to the other pursuant to this Agreement shall be sent by United States Mail, certified return receipt requested, Page 14 of 20 Packet Pg. 3057 0 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: a ch For Lessor: For Lessee: Monroe County Public Works Facilities Contract Monitor Chris Lembo 1100 Simonton St. 1607 Laird Street t? 2nd Floor,Room 2-216 Key West, FL 33040 Key West, FL. 33040 305 304-0093 And c Monroe County Attorney E Post Office Box 1026 a, Key West, FL 33041-1026 0 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 W 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 0. 0 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 co out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. Page 15 of 20 Packet Pg. 3058 Q.6.e 0 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. ca N 51. Entire Agreement. This writing embodies the entire agreement and , understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. Any amendment to this Lease shall be in writing, approved by the Board of �? County Commissioners,and signed by both parties before it becomes effective. od 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. 0 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] N N 0 0 co - CD CD Page 16 of 20 < Packet Pg. 3059 0 IN WITNESS WHEREOF, each party has caused this agreement to be executed by a thorized representative. N LESSOR: t,k� ag. � BOARD OF COUNTY COMMISSIONERS 5; ` T1rS VIN MADOK CLERK OF MONROE COUNTY FLORIDA o� By: By Deputy Clerk Mayor/Chairman C) --. o Witnesses for Lessee: LESSEE: n TROPICAL WATERSPORTS, 9 Signature person authorized to Signature legally bi d Corporation W Date: /O -4—IS ��ri5t o�Le— J, Lew. b pi�2n-� Print Name Date Print Name Title Address: 3 P Signature Telephone Number Print Name Date MO OE COUNTY ATTORNEY'S OFFICE ST F R VED A PATRICIA EABLES ASSISTANT COUNTY A ORNEY C DATE' Page 17 of 20 Packet Pg. 3060 0 Exhibit A HIGGS BEACH SITE PLAN N REVISED JUNE STH 2017 MUDD MONROE COUNTY PROJECT MANAGEMENT P1 BEACH CHAIR CONCESSIONS R2 T'.ONCESSION STORAGE TRAILER ATLANTIC BLVD. 06 06 jI � N RESTAURANT; EXISTING CONC.SLAB LLYBAL 0) 91 BEACH AREA LL :� w CURRENT MEAN HIGH WATER '�#` :- ISTBTGRESTROOM © W N r- � NOTE: � `\ RENTAL EOUIPMENT SHALL NOT BLOCX BEACH CLEANING EOUIPMENT A� DESIGNATE ORIGONAL MEAN HIGH WATER P&ESEAWEEDFRO SWIMAREA SHORELINE TB U 0. 0 FLOAT LINE Exu DNG SEAWALL E SOLD PL-R SUPPORTSco O � CD N CD Page I8 of 20 Packet Pg. 3061 • Q.6.e c I � >q V se • •• '• r 1 x 5 06 V/ Y;�SYS�'1 S ai•% N * � - - rt"-- CD 1 �. W CO r- CD h r EXHIBIT"B" The Higgs Beach Master Plan may be found at the following link: http://www.monroecountv-fl.gov/235/Hig,p,s-Beach Page 14 of 20 Packet Pg. 3062 0 "EXHIBIT C" Tropical Watersports Price List (all prices include sales tax) N 2 Chairs and 1 Umbrella $20 Single Lounge Chair $10 Late day single chair (after 3:00) $5 od Late day set (after 3:00) $10 a Umbrella $10 c Kayak $10/per hour Paddleboard $20/per hour c Mask & Snorkel set $15 Conch Republic flag towel $12 Panama Jack Sunblock $10 Volleyball rental $3 W N Inner tube rental $5 for 2 hours c Outside watersports priced by outside vendors 0 co - CD CD Page 20 of 20 Packet Pg. 3063