Item C07
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: December 21,2005
Division:
Public Works
Bulk Item: Yes ---X.. No
Department: Facilities Maintenance
Staff Contact Person: Ann Riger
AGENDA ITEM WORDING: Approval of a Consent to Assignment of Lease with Tropical
Sailboats, Inc. Assignor, and Tropical Watersports, LLC, Assignee, to lease a portion of Higgs Beach for
the purpose of renting beach chairs and umbrellas to the public.
ITEM BACKGROUND: On November 28, 2005 Tropical Sailboats, Inc. and Tropical Watersports,
LLC., entered into an Asset Purchase Agreement which includes an Assignment of Lease and Licenses
to Assignee of all the Assignors rights, and obligation in the lease.
PREVIOUS RELEVANT BOCC ACTION: On June 15, 2005 the BOCC approved to enter into a
new lease with Tropical Sailboats, Inc. to operate and maintain a concession for Beach Chair and
Umbrella Rentals at Higgs Beach, and on October 19, 2005 the BOCC approved a Lease Amendment to
waive fees for the months Higgs Beach was closed due to Hurricane activity.
CONTRACT/AGREEMENT CHANGES: Consent to Assignment of Lease from Tropical Sailboats,
Inc., Assignor, to Tropical Watersports, LLC, Assignee.
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: N/A
BUDGETED: Yes NIA No
COST TO COUNTY: N/ A
SOURCE OF FUNDS: N/ A
REVENUE PRODUCING: Yes N/A No AMOUNT PER MONTH Year
APPROVED BY: County Atty _ OMB/Purchasing
Risk Management _
DIVISION DIRECTOR APPROVAL:
/3x:!i.- cje~c i#~
Dent Pierce t
DOCUMENTATION:
Included t<
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised 2/05
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
RECEiVED
CONTRACT SUMMARY
005
MONROE GaUII!TY TTOHNEY
Contract with:
Tropical Watersports
Contract #_
Effective Date:
Expiration Date:
July 15, 2005
July 14, 2006
Contract Purpose/Description:
Consent to Assi ent - to rent beach chairs and umbrellas to the ublic at Hi s Beach
Contract Manager: Ann Riger
(Name)
4549
(Ext. )
Facilities Maint/Sto #4
(Department/S top #)
for BOCC meeting on
12/21/05
Agenda Deadline: 12/06/05
Total Dollar Value of Contract:
Budgeted? YesD No 0 A
Grant: $ N/ A
County Match: $ N/ A
rrent Year Portion: $ N/A
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ADDITIONAL COSTS
Estimated Ongoing Costs: $_/yr For:
(Not included in dollar value above) (eg. maintenance, utilities, 'anitorial, salaries, etc,)
CONTRACT REVIEW
Date In
Changes
Needed /
YesD NoS
Date Out
County Attorney
n. q.O{
/ /J ~vi~r '
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Division Director
Risk Management \Jjio.~::)
o $!i:s.lPurchas;:ftl1 c.'' .0$
Comments:
OMB Form Revised 2/27/01 MCP #2
CONSENT TO ASSIGNMENT OF LEASE
This Consent to Assignment is entered into this 21 st day of December, 2005, between the
COUNTY OF MONROE, a political subdivision of the State of Florida, hereafter
County, and TROPICAL SAILBOATS, INC., hereafter Assignor, and TROPICAL
W ATERSPORTS, LLC, hereafter Assignee, the parties agreeing as follows:
1. The County leases a portion of Clarence S. Higgs Memorial Beach, in Key
West, Florida, for the purpose of renting beach chairs and umbrellas to the
public, through an Agreement dated June 15, 2005, hereafter the original
agreement, and as amended on October 19, 2005 abating rent payable due to
hurricane damage to the beach.
2. The Assignor and Assignee have entered into an Asset Purchase Agreement
dated November 28, 2005, which includes an Assignment of Lease and
Licenses to Assignee of all the Assignors rights, and obligations in the lease.
3. In consideration for such consent, the Assignee agrees to be bound by all the
terms and conditions of the original agreement, and as amended.
4. The Lessor County agrees to the assignment of the lease from Tropical
Sailboats, Inc. to Tropical Watersports, LLC.
IN WITNESS WHEREOF, the parties have set their hands and seals as of the date
first written above.
(SEAL)
A TTEST: DANNY L. KOLHAGE, CLERK
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY:
BY:
Deputy Clerk
Mayor/Chainnan
ASSIGNOR
LESSEE: TROPICAL SAILBOATS, INC.
ASSIGNEE
LESSEE: TROPICAL WATERSPORTS, LLC.
tJ~
BY: tlVV1 . . L{.
. J~an Greg .
LEASE AMENDMENT
Beach Chair & Umbrella Rentals
This Lease Amendment is made and entered into this 19th day of October. 2005. between
the COUNTY OF MONROE, and lROPICAL SAILBOATS. INC. in order to amend the
Lease between the parties dated June 15, 2005 as follows:
1. Rental amounts of $305.00 per month or 10% of gross proceeds shall be
abated due to the closing of Higgs Beach during the months of July, August,
and September, 2005, because of damage caused by hurricanes.
2. Any rentals payments received by the County for the above mentioned three
month period shall be applied to the months October, November, and
December. 2005.
3. In all other respects, the original agreement between the parties dated June 15,
2005 remains in full force and effect.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal the day and
year first-written above.
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(Seal)
A.ttest:
DANNY L. KOLHAGE, CLERK.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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TROPICAL SAILBOATS, INC.
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SECTION THREE
Lease agreement
This Lease Agreement ("Lease") is made and entered into this 15th. day of June,
200SJ between Monroe CountyJ a political subdivision of the State of Florida, hereby
referred to as LESSOR whose address isl100 Simonton Street, Key West, FL. 33040,
and Tropical Sailboats, Inc'J hereinafter referred to as LESSEE, whose address is 1414
Yon Phister St. Key West, Florida, which expression shall include the ~ executors.
administrators and assigns of the LESSEE when the context so admits.
WHEREASJ the LESSOR desires to grant to LESSEE a non-exclusive right to maintain
and operate a concession on the beach for the purpose of renting beach chairs and
umbrellas to the public; arid
WHEREAS, the LESSOR and LESSEE desire, in connection with said operatio~ to
provide for the leasing by LESSOR to LESSEE of certain space at Clarence S. Higgs
Memorial Beach;
NOWJ THEREFORE, in cOnsideration of the mutual cove~ promises and premises
herein contained, the parties hereto agree as follows:
1. DEMISE AND PREMISES: The Lessor oftbese premises leases unto the
Lessee a portion of Clarence S. Higgs Memorial Beach, Key West, Florida
as evidenced by area marked "Premises" on the attached drawing marked
"Exhibit A'\ which is attached hereto and made a part hereof:
2. TERM: This agreement is for a renewal term of ONE (1) year,
commencing luly IS, 2005 and expiring on July 14, 2006, unless earlier
terminated pursuant to provisions of this agreement or operation of law.
Additionally, the Lessee may exercise an option to renew this lease for
TWO (2) ADDITIONAL ONE- YEAR PERIODS, CONTINGENT UPON
APPROY AL and with written consent of the Board of County
CommissionersJ by giving Lessor written notice of their intention to
exercise said option within sixty (60) days previous to the expiration of the
current Lease Agreement.
3. . RENTAL AND FEES: In return ror the privilege of using the designated
portion of Clarence S. Higgs Memorial Beach, Lessee will make monthly
payments of rent to Lessor equal to W/o of its total gross proceeds or
$305.00 per month, whichever is greater. Payment shall be made on or
befure the fifteenth day of each month following the month for which
payment is due. Payments should be directed to the Monroe County
Finance Dept., P.O. Box 1980. Key West. Florid~ 33040.
4. ACCOUNTING PROCEDURES: Lessee sball 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 reasonable and timely access to such records of
each other party to this Agreement for public records purposes dming the
term oCthe Agreement and fur four years following the tennination of this
Agreement. If an auditor employed by the County or Clerk determines that
monies paid to Lessee pursuant to this Agreement were spent for purposes
not authorized by this Agreement, the Lessee shall repay the monies
together with interest calculated pursuant to Sec. 55.03, FS, running from
the date the monies were paid to Lessee.
5. OTHER DEVELOPMENT: Lessor reserves the right to further develop
or improve Clarence S. Higgs Memorial Beach as it sees fit, regardless of
the desirers or views oCthe Lessee.
6. LESSEE'S OBLIGATION: Lessee covenants and agrees:
(a) To pay the Lessor the rent at the times and in the manner provided by this
lease.
(b) To continue to maintain current City and County Occupational Licenses, as
required, during the period of the lease.
(c) That Lessee's concession will not interfere with beach cleaning.
(d) Lessee will conduct its operations in a businesslike manner at all times, and
will keep the leased premises free of trash and debris left in the area of the
concession by the public.
(e) All rental equipment will be maintained in good working condition.
(f) To make no improper or offensive use of said premises, and to permit the
Lessor or its agents to inspect the eased premises at all reasonable times fur
the purpose of viewing the condition thereof.
(g) Public Access. The Lessor and Lessee shall allow and permit reasonable
access to, and inspection of: aU documeuts; papers, letters or other
materials in its possession or under its control subject to the provisions of
Chapter 119, Florida Statutes, and made or received by the Lessor and
Lessee in conjunction with this Agreement; and the Lessor sball have the
right to unilaterally cancel this Agreement upon violation of this provision
by Lessee.
· Beach hours are: 6:00 a.m. until 11:00 p.rn. Business hours to be
determined by agreement between LESSOR and LESSEE.
. Premise~ as a JXlrtion of Higgs Beach, are as evidenced by the
attached drawing marked Exhibit A. which is attached hereto and
made a part thereof in the Lease Agreement.
. Rentals of beach chairs and umbrellas, ONLY.
7. LESSOR'S OBLIGATIONS: Lessor covenants and agrees:
a) Lessee shall be permitted to use a portable rental stand or maintain a booth
6x8 feet for operation of the concession only if Lessee obtains, prior to
placement or erectio~ written approval from Lessor's Director of Public
Works for the structure to be so placed or erected. Lessor's Director shall
consider nearby structures, beach acces~ public safety, and usefulness for
concession purposes in determining whether to permit the structure to be
placed or erected on the premises. Upon termination of this lease, or an
extension hereof: Lessee shall remove said structme and return the
premises to the condition at the beginning of the lease term. Should Lessee
fiill to remove the structure within thirty (30) days of lease termination,
Lessor shall have the right to remove said structure and charge Lessee for
the costs of removal, or to retain said stmcture fur its own use.
b) Lessor is the lawful owner of the property demised hereby, that it has
lawful possession thereof: and bas good and lawful authority to execute
this lease; and
c) Throughout the term hereof: Lessee may bav~ hold and enjoy peaceful
and uninterrupted possession of the premises and rights herein leased and
~ subject to performance by Lessor or its obligation herein.
d) Non--Waiver of Immunity. Notwithstanding he provisions of Sec. 768.28,
Florida Statutes, 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 liability insurance
pool coverage shall not be deemed a waiver of immunity to the extent of
liability coverage, nor sball any contract entered into by the Lessor be
required to contain any provision for waiver.
e) Privileges and Immunities. All of the privileges and immunities from
liability, exemptions :from Jaws., o~ and rules and pensions and
relief: disability, workers' compensation, and other benefits which apply
to the activity of officers, age. or employees of any public agents or
employees of the Lessor, when performing their respective functions
under this Agreement within the territorial limits of tile 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 oftbe Lessor.
8. INDEMNIFICATIONIBOLD BARMLESSlINSURANCE:
(a) The Lessee agrees to indemnifY and hold the Lessor free and bannless from
any and all claims, suit~ loss or damage, or bijury to persons or property
(including property owned by Lessor) and any other losses, damages, and
expenses. including attorney's fees, which arise out of, in connection with, or
by reason of the Lessee utilizing the property governed by the lease
agreement. The extent of liability is in no way limited to, reduced. or lessened
by the insurance requirements contained elsewhere within this agreement.
(b) The Lessee shall procure and maintain Commercial General Liability-
Coverage must include:
(1) $500,000 oombined single limit.
(2) Additional Insured - Momoe County Board of County Commissioners
is to be specifically included as an additional insured and Certificate
Holder.
9. NONDISCRIMINATION
Lessor and Lessee agree that there will be no discrimination against any
person, and it is expressly understood that upon a determination by a court of
competent jurisdiction that discrimination has occurred, this Agreement
automatically terminates without any further action on the part of any party,
effective the date of the com1 order. Lessor or Lessee agree to comply with
all FedemJ and Florida statutes. and allloeal ordinances, as applicable,
relating to nondiscrimination. These include but are not limited to: 1) Title
VI of the Civil Rights Act of 1964 (pL 88-352) which prohibits discrimination
on the basis of race, color or national origin; 2) Title IX of the Education
Amendment of 1972, as amended (20 use 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 use s. 794), which prohibits
discrimination on the basis of handicaps; 4) The Age Discrimination Act of
1975, as amended (42 USC 58. 6101.(107) 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 Preventio~ Treatment
and Rehabilitation Act of 1970 (pL 91-616), as amended, relating to
nondiscrimination on the basis ofaleohol abuse or alcoholism; 7) The Public
Health Service Act of 1912, ss. 523 and 527 (42 use 88. 69Odd-3 and 290ee-
3). as amended, relating to confidentiality of alcohol and drug abuse patent
records; 8) rrtle vm of the Civil Rights Act of 1968 (42 use s. et seq.), as
amended. relating to nondiscrimination in the sale. rental or financing of
housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201
Note). as maybe amended from time to time, relating to nondiscrimination on
the basis of disability; 10) Monroe County Code Ch. 13. Art. VI, prohibiting
discrimination on the basis of race. color, sex. religion. disability, national
origin, ancestry, sexual orientation, gender identity or expression. fiu'l1i1lal
status or age; and 11) any other nondiscrimination provisions in any Federal
or state statutes which may apply to the parties to. or the subject matter ot: this
Agreement.
10. TERMINATION: Either party may terminate this lease, with or without
cause. upon giving the other party written notice of tennination at least
sixty (60) days prior to the effective date oftennination.
11. SEVERABn..ITY: If any term. covenant, condition or provision of this
Agreement (or the application thereof to any circumstance or person) shall
be declared invalid or unenfurceable to any extent by a court of competent
jurisdiction, the remaining terms, covenants, conditions and provisions of
this Agreement, shall not be affected thereby; and each remaining term.
covenant, condition and provision of this Agreement shall be valid and
shall be enforceable to the fullest extent permitted by law unless the
enforcement of the remaining terms. covenants. conditions and provisions
of this Agreement would prevent the accomplishment of the original intent
of this Agreement. The Lessor and Lessee agree to remon the Agreement
to replace any stricken provision with a valid provision that comes as close
as possible to the intent of the stricken provision.
12. NO SOLICITATIONJPAYMENT: The Lessor and Lessee warrant that,
in respect to itselt it bas neitheT employed nor retained any company or
person, other than a bona fide employee working solely for it. to solicit or
secure this Agreement and that it bas 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 Hom the award or mtdcing of
this Agreement. For the breach or violation of the provision, the Lessee
agrees that the Lessor shall have the right to terminate this Agreement
without liability and, at its discretion. to offset fiom monies owed. or
otherwise recover, the full amount of such fee, commission, percentage,
gift, or consideration.
13. ASSIGNMENT AND SVBLJn~nNG: Lessee shall not assign or sublet
this agreement without prior written consent of Lessor. nor permit any
transfer by operation of law of Lessee's interest. All terms of this
agreement shall bind any assignees or subleases.
14. OTHER USE: Lessee shall not use or permit the use of the demised
premises or any part thereof for any purpose or use other than as
authorized by this agreement.
15. GOVERNING LAW, VENUE, INTERPRETATION, COSTS AND
FEES: This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida applicable to contracts
made and to be performed entirely in the State. In the event that any
cause of action or administrative proceeding is instituted for the
enfurcement or interpretation of this Agreemen4 the Lessor and Lessee
agree that venue will lie in the appropiiate court or before the appropriate
administrative body in Monroe County, Florida. The Lessor and Lessee
agree that, in the event of conflicting interpretatiot15 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.
16. A TIORNEYS FEES AND COSTS: The Lessor and Lessee agree that
in the event any cause of action or administrative proceet1~ng 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;o()f~pocket expenses, as an award
against the noIrprevailing party. and shall include attorney's fees, courts
costs, investigative, and outo()f..pocket expenses in appellate proceedings.
Mediation proceedings initiated and conducted pursuant to this Agreement
sball be in accordance with the Florida Rules of Civil Procedure and usual
and customary procedures required by the circuit court of Monroe County.
17. BINDING EFFECTS: The terms. covenant~ conditio~ and
provisions of this Agreement shall bind and inure to the benefit of the
Lessor and Lessee and their respective legal representatives, successors,
and assigns.
18. 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.
19.CLAIMS FOR FEDERAL OR STATE AID: Lessor and Lessee
agree that each shall be, and is, empowered to apply for. seek, and obtain
federal and state funds to .further the purpose of this Agreement;
provided that all applications, requests, grant proposals, and funding
solicitations shall be approved by each party prior to submission.
20. ADJUDICATION OF DISPUTES OR DISAGREEMENTS: Lessor
and Lessee agree that all disputes and disagreements shall be attempted
to be resolved by meet and confer sessions between representatives of
each of the parties. If no resolution can be agreed upon within 30 days
after the first meet and conkr session, the issue or issues shall be
discussed at a public meeting of the Board of County Commissioners.
If the issue or issues are still not resolved to the satisfaction of the
parties, then any party shall have the right to seek such relief or remedy
as may be provided by this Agreement or by Florida law.
21.COOPERATION: In the event any administrative or legal prooeeding
is instituted against either party relating to the formation, execution,
perfurmance~ or breach of this Agreemen4 Lessor and Lessee agree to
participate~ to the extent required by the other party~ in all proceeding~
hearings, processes. meeting~ and other activities related to the
substance of this Agreement or provision of the services under this
Agreement. Lessor and Lessee specifically agree that no party to this
Agreement shall be required to enter into any arbitration proceedings
related to this Agreement.
22.COVENANT OF NO INTEREST: Lessor and Lessee covenant that
neither presently has any interest~ and shall not acquire any interest.
which would con:flict in any manner or degree with its performance
under this Agreement, and that only interest of each is to perform and
receive benefits as recited in this Agreement.
23..LEGAL OBLIGATIONS AND RESPONSmH..ITIES: Non-
Delegation of Constitutional or Statutory Duties. This Agreement is
not intended to. nor sbaIl 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 perfurmance may be offered
in satisfaction of the obHgation or responsibility. Further, this
Agreement is not intended to, nor sbaU it be construed as, authorizing
the delegation of the constitutional Of statutory duties of the County,
except to the extent permitted by the Florida constitution, state statute~
and case law.
24. NON RELIANCE BY NON PARTIES: No person or entity sball be
entitled to rely upon the ~ 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 the Lessee agree that neither the Lessor nor the Lessee or
any agent, officer; or employee of either shall have the authority to
inform, counsel; or otherwise indicate that any particular individual or
group of individuals, entity or entities, have entitlements or benefits
under this Agreement separate and apart, interior to~ or superior to the
community in general or for the purposes contemplated in this
Agreement.
25. ATfESTATIONS: Lessee agrees to execute such documents as the
Lessor may reasonably require, to include a Public Entity Crime
Statement, an Ethics Statement, and a Drug-Free Workplace
Statement.
26. NO PERSONAL LIABILITY: No covenant or agreement contained
herein sball 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.
27. EXECUTION OF 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 sball constitute one
and the same instrument and any of the parties hereto may execute this
Agreement by singing any such counterpart.
28. SECfION HEADINGS: Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is
agreed that such section beadings are not a part of this Agreement and
will not be used in the interpretation of any provision of this
Agreement.
29. CODE OF ETHICS: Lessor agrees that officers and employees of
the Lessor recognize and will be required to comply with the standards
of conduct for public officers and employees as delineated in Section
112.313, Florida Statutes, regarding, but not limited to, solicitation or
acceptance of gifts; doing business with one's agency; unauthorized
compensation; misuse of public position, conflicting employment or
contractual relationship; and disclosure or use of certain information.
30. NOTICES: Any notice of communication from either party to the
other pursuant to this agreement is sufficiently given Of connnunicated
if sent by Certified Mai~ with proper postage fees prepaid, addressed
to the party for whom intended, at the following address:
For Lessor: Momoe County Public Works Division
Facilities Maintenance Department
3583 South Roosevelt Boulevard
Key West, Florida 33040
For Lessee: Tropical Sailboats, Inc.
1414 Von Phister S1reet
Key West, Florida 33040
IN WITNESS WHEREOF, the parties have executed this agreement the day and
year first above written.
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:;.~,~..P~J.. KOLHAGE, Clerk
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Biggs Beach Lease 2005-6
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By ~~i# m. ~
Mayor/Chainnan
Tropical Sailboats, Inc.
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