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Item P10BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: May 21, 2068 Division: County Attorn� Bulk Item: Yes XX No Staff Contact Person: Pedro Mercado AGENDA ITEM WORDING: Approval of Lease Agreement with Key West Hospitality, LLC (Salute" Restaurant on Higgs Beach). ITEM BACKGROUND: The County currently leases the building housing Salute" restaurant to Francis Gonzon under the corporate name of Key West Hospitality, LLC. The current lease terminates in August of 2008; however, Mr. Gonzon has requested a longer lease due to capital improvements which need to be effected on the leasehold property. Some of the improvements are being precipitated by an ADA lawsuit filed against Mr. Gonzon as a result of the leasehold building not being ADA compliant. Mr. Gonzon has agreed to perform all of the ADA modifications at no cost to the County. Mr. Gonzon will also be performing additional capital improvements at his cost unrelated to the ADA suit in order to bring the building up to current building code standards. In order to obtain financing and make the improvements cost effective Mr. Gonzon will require a longer lease. , PREVIOUS RELEVANT BOCC ACTION: Approved original lease on August 12, 1998 as well as subsequent amendments on February 10, 1999, July 21, 1999, September 20, 2000, May 16, 2001, October 17, 2001, July 17, 2002, May 19, 2004 and July 14, 2004. Approved the Consent to Assignment on April 20, 2005. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST: N/A BUDGETED: Yes No COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING:. Yes XX No _ AMOUNT PER MONTH 7 000 + Year APPROVED BY: County Atty X OMB/Purchasing _ Risk Management DOCUMENTATION: Included XX Not Required DISPOSITION• AGENDA ITEM #0 /✓ / Revised 2105 LEASE AGREEMENT HIGGS BEACH CONCESSION/RESTAURANT THIS LEASE AGREEMENT is made by and between Monroe County, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, FL 33040, hereafter "County" or "Lessor", and Key West Hospitality, LLC, whose address is 1002 Fleming Street, Key West, Fl., 330040 hereafter, "Tenant" or "Lessee" this day of tl: WHEREAS, on the 12th day of August 1998, the County and the predecessor in interest entered into a Lease agreement, for one (5) year term, with an option to renew for one additional (5) year term hereafter referred to as "Original Agreement", copy of which is attached hereto and made a part hereof; and WHEREAS, the County and the predecessor in interest subsequently entered into lease amendments dated February 10, 1999, July 21, 1999, September 20, 2000, May 16, 2001, October 17, 2001, July 17, 2002, May 19, 2004 and July 14, 2004, copies of which are attached hereto and made a part hereof; and WHEREAS, the July 17, 2002 amendment amended the renewal term of the Original Agreement and now provided the predecessor in interest with an option to renew the Original Agreement for two additional (5) year terms; and WHEREAS, the predecessor in interest exercised his initial option to renew the Original Agreement and the County and the predecessor in interest entered into a Renewal Agreement dated July 15, 2003, copy of which is attached hereto and made a part hereof, and WHEREAS, the predecessor in interest assigned all of his rights, title and interest in the Original Agreement to the Lessee pursuant to a contract for sale/purchase of the restaurant; and WHEREAS, the County entered into a Consent To Assignment Of Lease dated April 20, 2005, copy of which is attached hereto and made a part hereof; and WHEREAS, an American with Disabilities Act (hereafter ADA) complaint has been filed against the Lessee citing ADA deficiencies on the leasehold premises at 1000 Atlantic Blvd., Key West, Florida; and 4* WHEREAS, udder the terms of the original agreement the Lessee agreed not to make any major alterations to the building located on the lease hold without first obtaining approval from the County; and WHEREAS, the current renewal term expires on August 11 2008, and the Lessee has informed the County of the Lessee's intent to exercise the Lessee's 24renewal option; and WHEREAS, the Lessee has agreed to effect all of the ADA modifications at Lessee's cost and proposes to make additional capital improvements at leasehold premises at Lessee's costs; and WHEREAS, Lessee is seeking an additional term of years beyond the 2id renewal option in exchange for effecting additional capital improvements separate and apart from the ADA modifications; and WHEREAS, Lessee and County find that, for purposes of clarity, it would be mutually beneficial to enter into a new Lease and terminate Lessee's current Lease along with all amendments and renewals entered pursuant thereto; NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: Mutual Termination of Existing Lease The parties mutually agree to cancel their August 12, 1998 original Lease Agreement, February 10, 1999, July 21, 1999, September 20, 2000, May 16, 2001, October 17, 2001, July 17, 2002, May 19, 2004, amendments and July 15, 2003 renewal agreement effective August 11, 2008, with neither party having any further duty, obligation or liability to the other under the terms of the above listed documents. 2. Premises. The County does hereby lease to Tenant and Tenant leases from the County, a concrete building now situated on Clarence S. Higgs Memorial Beach, 1000 Atlantic Blvd., Key West, Monroe County, Florida, in its as is condition. Square footage allocations shall be limited to the interior and enclosed patio area referenced in Exhibit "A" attached hereto and incorporated herein. 3. Term and Effective Date. Lessor does hereby grant to the Lessee the exclusive right and privilege of operating and maintaining a full service concession/restaurant at Clarence S. Higgs Memorial Beach, Key West, Monroe County, Florida, for a tern of five (5) years commencing August 12, 2008 and terminating on August 11, 2013 unless extended in accordance with the terms set forth in subsection ii) below. i)Within the first year of the lease term, Lessee agrees to make the following modifications, at Lessee's cost, pursuant to the Stipulated Settlement Agreement in ADA case # 08-10007 filed in the United States District Court, Southern District of Florida: a) Modify the main entrance to the restaurant by installing a proper ramp in order to eliminate the change in level. b) Install proper signage to indicate the accessible entrances to the restaurant, patio area and accessible bathroom. c) Install proper door hardware on all entrance and public doors. d) Provide accessible tables in all dining areas and bar area with proper signage indicating accessible tables. e) Provide an accessible route from the bar/restaurant area to the restaurant restrooms including the addition of a ramp or deck to provide a level surface for access. f) Modify the existing women's restroom to make a unisex accessible restroom which will require changes to the door entrance, pathway within, fixture modifications and proper signage. g) Establish appropriate employee training policies. h) Maintain all accessible features in the future. i) Ensure any future modifications, alterations, or changes are in compliance with the ADA. j) Request Lessor provide an additional disabled parking space along with proper striping and signage of the accessible parking space creating an accessible route to the restaurant and relocating bicycle racks to prevent encroachment into the accessible route. ii)Upon completing the ADA compliance modifications listed above, Lessee anticipates completing additional capital improvements estimated to cost $125,000 as listed below; a) Update all electrical and plumbing in the building to bring it in compliance with all current code requirements. b) Remove and replace the outside patio deck area to level the floor with the main dining room floor. c) Revamp and replace the roof over the outside patio deck area to create a more substantial roof surface. d) Remodel and enlarge the stall areas of the restaurant restrooms to make both accessible and in compliance with the ADA rather than having only one unisex accessible restroom which is proposed for installation in 2008-2009. If Lessee has previously completed all ADA modifications listed in subsection i) aj, Lessee shall be entitled to extend the lease two additional years for every $25,000 spent on capital improvements listed in subsection ii) a — d up to a maximum of 10 years. All improvements listed in subsection ii) must be completed by August 12, 2012 unless extended by mutual agreement. Upon providing proof, in the form of material invoices, construction contracts, etc., to the Director of Facilities Maintenance as to the total amount spent on capital improvements listed in subsection ii) a-d, the parties will enter into an amendment extending the term of the Lease Agreement 2 years for every $25,000 in capital improvement. 4. Rent. Maintenance Fee, Tax The total monthly rental payment (hereinafter collectively known as "rent"), shall include rent, applicable sales tax and a maintenance fee to cover the cost of the Lessor providing janitorial services and the opening and closing of the public restrooms. The initial rent for the Premises including the maintenance fee and applicable sales tax is $7,334.94 per month, payable in advance on or before the first business day of each month. The rent will be adjusted annually beginning with the first anniversary of the commencement of the lease term, and at every anniversary thereafter, by a percentage equal to the increase in the CPI for all urban consumers (CPI-U) for the calendar year immediately preceding the anniversary date. 5. Termination., This Agreement may be terminated at the discretion of the Lessor in the followin circumstances: a) Lessee fails to pay the rent when due; b) Lessee fails to obtain the insurance required under this Lease or allows the required insurance coverage to lapse or fall below the minimum required; c) Lessee otherwise breaches the terms of this Lease. Unless the Lessor has accepted in writing a delay in performance of duties, the failure to perform said duties shall constitute a default under the terms of this Lease Agreement. In the case of default/breach, the County's Director of Facilities Maintenance shall first give Lessee a written notification stating the default/breach and that Lessee has ten (10) days to correct the default/breach. If the Lessee has not corrected the default/breach at the end of the ten (10) days, then the Lessor may terminate the Lease in its discretion. If it shall be necessary to employ the services of an attorney in order to enforce its rights under this Lease Agreement, the Lessor shall be entitled to reasonable attorney's fees. Waiver of a default in any particular month shall not bind the Lessor to forego the provisions of this paragraph and any subsequent default shall be grounds for termination. 6. Lessee Covenants. Lessee covenants and agrees as follows: A. To keep open such concession/restaurant Monday -Sunday, including holidays, from 7:00 A.M. — 11:00 P.M., and shall not exceed the established beach hours as specified in Monroe County Ordinance 13.5-3(2)(E). Hours of operation may be modified by mutual agreement. B. To furnish the necessary equipment, furnishings and fixtures needed to operate the concession/restaurant. All moveable equipment and furnishings shall remain the property of the Lessee and may be removed from the premises by Lessee at the termination of this lease agreement, with Lessor's consent. If Lessee fails to remove said moveable equipment or furnishings within ten (10) days after termination of this lease, said items shall then become the property of the Lessor. C. Lessee shall maintain a City and County occupational license during the period of this lease. D. Lessee agrees to keep the leased premises in a safe, clean and well -maintained order at no expense to the Lessor. This provision is to be monitored by the Director of Public Facilities Maintenance or his representative. E. Lessee agrees to operate its business in a business like manner. Lessor Covenants. In connection with the above demised premises, the Lessor covenants with the Lessee that conditioned upon Lessee's performance and observance of Lessee's covenants herein, Lessee shall have quiet enjoyment and peaceable possession of the premises during the term of this Lease. In the event the County elects to maintain and/or improve its properties in the vicinity of the leasehold herein, either by necessity, or by choice, such activity will not be considered as a breach of any covenant of this lease. Lessor further covenants and, at its cost, agrees: a) to provide proper striping and signage of the accessible parking space and to provide a second accessible parking space adjacent to the current accessible parking space in conjunction with the accessible route to the restaurant. b) relocate the bicycle racks to prevent encroachment into the accessible route leading to any accessible entrance to the restaurant. c) to establish a policy of enforcement if cars are improperly parked to notify the car ownSr or have the vehicle towed pursuant to F.S. Sec. 316.1955(1)(a) g. Asslenntent. It is agreed by the parties hereto that Lessee may elect to sub -lease or assign this Lease Agreement only upon written consent of the Monroe County Board of County Commissioners which shall not be unreasonably withheld. The terms of this Lease Agreement shall be binding on the heirs, executors, administrators, sub -lessees and assigns of Lessee. 4 9. Mechanic's Liens, Lessor's Rights, It is hereby covenanted, stipulated and agreed by and between the parties hereto that: A. there shall, during said demised term, be no mechanic's liens placed upon the concession/restaurant or improvements thereto. B. in case of any attempt to place a mechanic's lien on the leasehold premises, the Lessee must pay off same. C. if default in payment thereof shall continue for thirty (30) days after written notice, Lessor shall have the right and privilege, at its option, to pay off any mechanic's lien or any portion thereof and the amount so paid, including expenses, shall, at Lessor's option, be designated as additional rent due from Lessee at the next rent due date after such payment, with interest calculated at the rate established by the Comptroller under Sec. 55.03, Fla. Stat., for the year in which the payment became overdue. Nothing in this section is to be read as a waiver or authorization by the County of its constitutional and statutory immunity and right to have its property free of such liens. 10. Sale of Alcoholic Beverages, Alcoholic beverages may be sold within the enclosed restaurant and patio area only upon acquisition and maintenance of proper licenses from local, state and federal agencies. No carry -out sales of alcoholic beverages is permitted. Sales and consumption of alcoholic beverages must cease by 11:00 P.M. 11. Entertainment. Entertainment may be provided only in the enclosed restaurant and patio area. Any entertainment must be acoustic soft background music and must cease by 11:00 P.M. 12. Licenses. Lessee shall be responsible for and provide all licenses required by all local, state and federal agencies including the Department of Health. 13. Premises to be Used For Lawful Purposes It is expressly covenanted between the parties hereto that the Lessee will not use, suffer nor permit any person to use in any manner whatsoever the leasehold property, nor any portion thereof, for purposes calculated to injure the reputation of the leasehold property or of the neighboring property, nor for any purpose or use in violation of the laws of the Untied States, or of the State of Florida, or of the Ordinances of Monroe County or the City of Key West, Florida. Lessee will keep and save the Lessor forever harmless from any penalty or damage or charges imposed for any violation of any said laws, whether occasioned by neglect of Lessee and Lessee will indemnify and save and keep harmless the Lessor against and from any loss, cost, damage, and expense arising out of any accident or other occurrence, causing injury to any person or property whomsoever or whatsoever, and due directly or indirectly to the use of the leasehold premises or any part thereof by Lessee. 14. Limitation of Lessor's Liability. It is further agreed that in no case shall the Lessor herein be lia le, under any express or implied covenants in the Lease Agreement, for any damages whatsoever to the Lessee beyond the rent reserved by the Lease Agreement accruing, for the act, or breach of covenant, for which damages may be sought to be recovered against said Lessor, and that in the event said Lessee shall be ousted from the possession of said property by reason of any defect in the title of said Lessor or said Lessor's authority to make this lease agreement, said Lessee shall not be required to pay rent under this lease agreement while he is so deprived of said property, and that said Lessor shall not incur any liability as a result of such ouster. 15. No Waiver of Breach. It is further mutually covenanted and agreed between the parties hereto that no waiver of a breach of any of the covenants of this lease agreemeiat shall be construed to be a waiver of any succeeding breach of the same covenant. 16. Observance of County Rules and Regulations The Lessee hereby covenants and agrees that he, his agents, employees or otherwise shall observe and obey all lawful rules and regulations which may from time to time during the term hereby promulgated and enforced by the Lessor at the beach. IT County's Right of Entry, The Lessor reserves the right hereunder to enter upon the premises at any reasonable time during normal operating hours for the purpose of inspecting said premises to determine whether Lessee has complied and is complying with the terms and conditions of this Lease Agreement. The Lessee hereby agrees to keep the premises at all times in a clean and sanitary condition, and not to maintain or keep upon said premises any properties or equipment not used in connection with the operation of said business, unless authorized by the Lessor to do SO. 18. Leasehold Improvements The Lessee agrees not to make any major alterations to the building located on said premises, without first obtaining written consent of the Lessor to do so, which will not be unreasonably withheld. Such alterations shall be based on plans approved by the Director of Facilities Maintenance and shall be subject to all City and County code provisions governing construction. Lessee shall be responsible for obtaining any permits required by any government agency. All site improvements shall be pre -approved by the Monroe County Board of County Commissioners. 19. Leasehold Maintenance. During the term of this lease, Lessee is responsible for all maintenance and repairs, including major repairs such as structural work and roof replacement and replacement of the building if destroyed. All repairs and replacement must be of the same or better quality as the original work and conform to all applicable building codes. Lessee shall be responsible for and shall properly maintain the leased premises, and upon the termination of this lease, shall leave the premises in at least as good condition as at the time of the commencement of this lease, normal use and occupancy excepted. The Lessee will keep the premises clean at all times and must meet all requirements for food handling as required by the Monroe County Department of Health. 20. Responsibilty for Property on Leasehold All property of any kind that may be on the premises during the term of this Lease Agreement shall be at the sole risk of the Lessee. The Lessor shall not be liable to the Lessee or any other person for any injury, loss or damage to property or person on the premises. 21. Damage to Zeasehold In the event that the demised premises, or a major part thereof are destroyed by fire, storm, or any other casualty, the Lessor at its option and without assuming Lessee's responsibilities under Section 19 "Leasehold Maintenance", may forthwith repair the damage to such structure at its own cost and expense. The rental thereon shall cease until the completion of such repairs and the Lessor will immediately refund the pro rata part of any rentals paid in advance by the Lessee prior to such destruction. Should the premises be only partly destroyed, so that the major part thereof is usable by the Lessee, then the rental shall abate to the extent that the injured or damaged part bears to the whole of such premises and such injury or damage shall be restored by the Lessor as speedily as is practicable and upon completion of such repairs, the full rental shall commerce and the Lease shall then continue,the balance of the tern. If Lessor exercises its option to repair the premises, Lessee agrees to assign its right to the insurance proceeds to the Lessor. If insurance proceeds exceed the costs of repair, the Lessor will, at its option, either remit the excess funds to the Lessee or apply the excess funds as a credit towards Lessee's next due monthly rental payment. If repair costs exceed the insurance proceeds, Lessee agrees to pay Lessor within 30 days for any and all costs of repair not covered by insurance proceeds. 22. Rights Reserved, Rights not specifically granted to Lessee by this Lease Agreement are reserved to the Lessor. 23. Rights of County, The Lessor shall have the absolute right, without limitation, to repair, reconstruct, alter or add to any structure or facility at Higgs Beach, or to construct new facilities at Higgs Beach. The Lessor shall, in the exercise of such right, be free from any and all liability to the Lessee for business damages occasioned during the making of such repairs, alterations and additions, except those occasioned by the sole act of negligence of the Lessor, its employees or agents. 24. Indemnification/Hold Harmless Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, Lessee shall defend, indemnify and hold Lessor and the Lessor's elected and appointed officers and employees harmless from and against (i) any claims, actions or causes of action, (ii) any litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, fine, penalty or business interruption, and (iii) any costs or expenses (including, without limitation, costs of remediation in connection with a violation of any federal, state, or local law or regulation, attorneys' fees and costs, court costs, fines and penalties) that may be asserted against, initiated with respect to, or sustained by, any indemnified party by reason of, or in connection with, (A) any activity of Lessee or any of its employees, agents, contractors or other invitees on the leasehold premises during the term of this Agreement, (B) the negligence or willful misconduct of Lessee or any of its employees, agents, contractors or other invitees, or (C) Lessee's default in respect of any of the obligations that it undertakes under the terms of this Lease Agreement, except to the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses arise from the intentional or sole negligent acts or omissions of the Lessor or any of its employees, agents, contractors or invitees (other than Lessee). Insofar as the claims, actions, causes of action, litigation, proceedings, costs or expenses relate to events or circumstances that occur during the term of this Lease Agreement, this section will survive the expiration of the term of this lease or any earlier termination of this Lease Agreement. 25. Insurance RRguirements Lessee shall obtain and maintain at it's own expense the insurance overages listed in exhibit B. 26. Books, Records and Documents Lessee shall maintain all books, records, and documents directly pertinent to performance under this Lease Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Lease Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Lease Agreement for public records purposes during the term of the Lease Agreement and for four years following the tennination of this Lease Agreement. 27. Governing Law Venue Interpretation: This Lease Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Lease Agreement, the Lessor and Lessee agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. The Lessor and Lessee agree that, in the event of conflicting interpretations of the terms or a term of this Lease Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. 27. Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. Any amendment to this Lease Agreement shall be in writing, approved by the Board of County Commissioners, and signed by both parties before it becomes effective. 28. Severability. If any term, covenant, condition or provision of this Lease Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Lease Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Lease Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Lease Agreement would prevent the accomplishment of the original intent of this Lease Agreement. The Lessor and Lessee agree to reform the Lease Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 29. Attorney's Fees and Costs. The Lessor and Lease agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non -prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Lease Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. 30. Binding Efct. The terms, covenants, conditions, and provisions of this Lease Agreement shall bind and inure to the benefit of the Lessor and Lessee and their respective legal representatives, successors, and assigns. 31. Authori . Each party represents and warrants to the other that the execution, delivery and performance of this Lease Agreement have been duly authorized by all necessary County and corporate action, as required by law. 32. Claims for Federal or State Aid. Lessor and Lessee agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose.of this Lease Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 33. Adjudication of Disputes or Disagreements. Lessor and Lessee agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. if the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Lease Agreement or by Florida law. 34. Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Lease Agreement, Lessor and Lessee agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Lease Agreement or provision of the services under this Lease Agreement. Lessor and Lessee specifipally agree that no party to this Lease Agreement shall be required to enter into any arbitration proceedings related to this Lease Agreement. 35. Nondiscrimination. Lessor and Lessee agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Lease Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. Lessor and Lessee agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to co fidentiality of alcohol and drug abuse patent records; 8) Title VIll of the Civil R�ghts Act of 1968 (42 USC S. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; 10) Sections 13-101, et seq., Monroe County Code, relating to discrimination based on race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; 11) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Lease Agreement. 36. Covenant of No Interest. Lessor and Lessee covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Lease Agreement, and that the only interest of each is to perform and receive benefits as recited in this Lease Agreement. 37. Code of Ethics. Lessor agrees that officers and employees of the Lessor recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 38. No S011citation/Pavment. The Lessor and Lessee warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Lease Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Lease Agreement. For the breach or violation of the provision, the Lessee agrees that the Lessor shall have the right to terminate this Lease Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 39. Public Access, The Lessor and Lessee shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the Lessor and Lessee in conjunction with this Lease Agreement; and the Lessor shall have the right to unilaterally cancel this Lease Agreement upon violation of this provision by Lessee. 40. Non -Waiver of Immunity. Notwithstanding the provisions of Sec. 286.28, Florida Statutes, the participation of the Lessor and Lessee in this Lease Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the Lessor be required to contain any provision for waiver. 41. Privite¢es and Immunities. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the Lessor, when performing their respective functions under this Lease Agreement within the territorial limits of the County shall apply to the same degree and extent to the performances of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 42. Leeal Obligations and ResoonstbHWM: Non -Delegation of Constitutional or Statutory Duties. This Lease Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Lease Agreement is not 10 intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the Lessor, except to the extent pennitted by the Florida constitution, state statute, and case law. 43. Non -Reliance by Non -Parties. No person or entity shall be entitled to rely upon the terms, or any of them, of this Lease Agreement to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or program contemplated hereunder, and the Lessor and Lessee agree that neither the Lessor nor the Lessee or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Lease Agreement separate and apart, inferior to, or superior to the corummity in general or for the purposes contemplated in this Lease Agreement. 44. Attestations. Lessee agrees to execute such documents as the Lessor may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug - Free Workplace Statement. 45. No Personal Liability. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity„and no member, officer, agent or employee of Monroe County shall be liable personally on this Lease Agreement or be subject to any personal liability or accountability by reason of the execution of this Lease Agreement. 46. Execution in Counterparts. This Lease Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Lease Agreement by signing any such counterpart. 47. Section Headings. Section headings have been inserted in this Lease Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Lease Agreement and will not be used in the interpretation of any provision of this Lease Agreement. 48. Mutual Review. This Lease agreement has been carefully reviewed by Lessee and Lessor, therefore this Lease agreement is not to be construed against either party on the basis of authorship. 11 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK By Deputy Clerk QZZN it rrr =l1 It • BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Mayor/Chairperson KEY WEST HOP "Y By Title- M agin ar r This document was prepared and a proved as to form by: P J. Mercado Date Assistant C Attorney Florida Bar No.. 0084050 P.O. Box 1026 Key West, FL 33041-1026 (305) 292-3470 12 o%T51ac 1.i(. ..vim so.F1' 3 76s.c mi LI_ U,al. - APaA 9Vo.i sp. pT. � TAIL--owT ' In/ Q sa. fT. ' , W i Mw �w °q." SQ- Fr. II`(•L aw.fT, iO4.6 0 0 a TOTxL JSeA&E 54a et FraT 3,92a i ° o Fi�(°Gs 6�Aci1 C,ea,n�y4 wY f..alypa0� C°J-'Ct SS iCti �AC��1T.4 a1T. S'rt+c lirt n" Y-P7.9e � SUIs f)gx.l_On aa..- 0...D,a.b Vt6ED c��ii�gg � JJ a' E7CHIBIT� - 2005 Edition MONROE COUNTY, FLORIDA RISK MANAGEMENT POLICY AND PROCEDURES CONTRACT ADMINISTRATION MANUAL General Insurance Requirements for Organizations/Individuals Lessnrg-Cu mty-owlittf Property Prior to the Organization or Individual taking possession of the property owned by the County, or commencing its concessionaire operations, the OrganizationAndividual shall obtain, at his/her own expense, insurance as specified in the attached schedules, which are made part of this lease/rental agreement. The Organization/Individual will not be permitted N occu evidence of the required insurance has bpy or use the property until satisfactorybeen furnished to the County as specified below. The Organization/individual shall maintain the required insurance throughout the entire tern of this lease/rental agreement and any extensions specified in the attached schedules. Failure to comply with this provision may result in the immediate termination of the lease/rental agreement and the return of all property owned by the County. • The Organization/Individual will be held responsible for all deductibles and self insured retentions that may be contained in the Organization/Individual's Insurance policies. The Organization/Individual shall provide, to the County, as satisfactory evidence of the required insurance, either. • Certificate of Insurance or • A Certified copy of the actual insurance policy. The County, at its sole option, has the right to request a certified copy of any or all insurance policies required by this contract. All insurance policies must specify that they are not subject to cancellation, non -renewal, material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. The acceptance and/or{sd'pproval of the Organization/Individual's insurance shall not he construed as relieving the Organization/individual from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of County Commissioners, will be included as "Additional Insured" on all policies. They will also be named as "Loss Payee" with respect to Fire Legal Exposure. Administration Instruction #4709.6 �y[ EXHIBIT 8 fir/ 29 • 19 ?OOi Edition Any deviations from these General Insurance Requirements must be requested in writing on the County prepared form entitled "Request for Waiver of Insurance Requirements" and approved by Monroe County Risk Management. Administration insnvcrion 84709.6 0 30 • 2005 rdilinn ALL RISK PROPERTY INSURANCE REQUIREMENTS FOR LEASES/RENTALS OF COUNTY -OWNED PROPERTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization/Individual taking possession of the property governed by this lease/rental agreement, the Organization/individual shall obtain All Risk Property Insurance (to include the perils of Flood and Wind) with limits no less than the Replacement Cost Value of the property ]eased or rented. Coverage shall be maintained throughout the life of the Lease/Rental Agreement and include, as a minimum, liability coverage for: The Monroe County Board of County Commissioners shall be named as Additional Insured and Loss Payee on all policies issued to satisfy the above requirements. Adminismtlon Instmction #470U 91 2005 rditlnn GENERAL LIABILITY INSURANCE REQUIREMENTS FOR LEASE/RENTAL OF PROPERTY OWNED BY THE COUNTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization/fndividual taking possession of the property governed by this lease/rental agreement, the Organization/individual shall obtain General Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum: • Premises Operations • Products and Completed Operations I • Blanket Contractual Liability • Personal Injury Liability • Expanded Definition of Property Damage Fire Legal Liability (with limits equal to the fair market value of the leased property.) The minimum limits acceptable shall be: • $300,000 Combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: • $100,000 per Person $ 300,000 per Occurrence $ 50,000 Property Damage An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective date of this contract. In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the termination of the Lease/Rental Agreement. The Monroe County Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. Administration Instruction #4709,6 32 2005 FAtion VEHICLE LIABILITY INSURANCE REQUIREMENTS FOR LEASES/RENTALS OF COUNTY -OWNED PROPERTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization/Individual taking possession of the property governed by this lease/rental agreement, the Organization/Individual shall purchase Vehicle Liability Insurance. Coverage shall be maintained throughout the life of the Lease/Rental Agreement and include, as a minimum, liability coverage for: • Owned, Non -Owned, and Hired Vehicles • Physical Damage Protection (if the leased property is a County -owned vehicle) The minimum limits acceptable shall be: . $300,000 Combined Single Limit (CSL) ACV for Physical Damage Is If split limits are provided, the minimum limits acceptable shall be: $ 100,000 per Person $ 300,000 per Occurrence $ 50,000 Property Damage ACV for Physical Damage The Monroe County Board of County Commissioners shall be named as Additional Insured an all policies issued to satisfy the above requirements. In addition, if the lease/rental agreement involves County -owned vehicles, the Monroe County Board of County Commissioners shall be named as "Loss Payee" with respect to the physical damage protection. Administration InsvuItion #4709.6 33 0 1996 Edition Aft LIQUOR LIABILITY INSURANCE REQUIREMENTS FOR CONTRACT BETWEEN MONROE COUNTY, FLORIDA AND Recognizing that the work governed by this contract involves the sales and/or distribution of alcoholic beverages, the Contractor's General Liability Insurance policy shall include Liquor Liability with limits equal to those of the basic coverage. A separate Liquor Liability policy is acceptable if tke coverage is no more restrictive than the Contractor's General Liability policy. The Monroe County Board of County Commissioners will be included as Additional Insured if a separate Liquor Liability policy is provided. Administration Instmction GLLIQ #4709.2 59 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: May 21, 2008 Bulk Item: Yes XX No Division: County Attorney Staff Contact Person: Pedro Mercado AGENDA ITEM WORDING: Approval of Lease Agreement with Key West Hospitality, LLC (Salute' Restaurant on Higgs Beach). ITEM BACKGROUND: The County currently leases the building housing Salute' restaurant to Francis Gonzon under the corporate name of Key West Hospitality, LLC. The current lease terminates in August of 2008; however, Mr. Gonzon has requested a longer lease due to capital improvements which need to be effected on the leasehold property. Some of the improvements are being precipitated by an ADA lawsuit filed against Mr. Gonzon as a result of the leasehold building not being ADA compliant. Mr. Gonzon has agreed to perform all of the ADA modifications at no cost to the County. Mr. Gonzon will also be performing additional capital improvements at his cost unrelated to the ADA suit in order to bring the building up to current building code standards. In order to obtain financing and make the improvements cost effective Mr. Gonzon will require a longer lease. PREVIOUS RELEVANT BOCC ACTION: Approved original lease on August 12, 1998 as well as subsequent amendments on February 10, 1999, July 21, 1999, September 20, 2000, May 16, 2001, October 17, 2001, July 17, 2002, May 19, 2004 and July 14, 2004. Approved the Consent to Assignment on April 20, 2005. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST: N/A COST TO COUNTY: N/A BUDGETED: Yes No SOURCE OF FUNDS: REVENUE PRODUCING: Ves XX No _ AMOUNT PER MONTH $7 000 + Year APPROVED BY: County Atty X OMB/Purchasing Risk Management 171IKi1► ice► i� Ii a ill C�� DISPOSITION: Included XX Not Required AGENDA ITEM 4 Revised 2/05 LEASE AGREEMENT HIGGS BEACH CONCESSION/RESTAURANT THIS LEASE AGREEMENT is made by and between Monroe County, a political subdivision of the State of Florida, whose address is I1.00 Simonton Street, Key West, FL 33040, hereafter "County" or "Lessor", and Key West Hospitality, LLC, whose address is 1002 Fleming Street, Key West, Fl., 330040 hereafter, "Tenant" or "Lessee" this day of 11: WHEREAS, on the 12th day of August 1998, the County and the predecessor in interest entered into a Lease agreement, for one (5) year term, with an option to renew for one additional (5) year term hereafter referred to as "Original Agreement", copy of which is attached hereto and made a part hereof, and WHEREAS, the County and the predecessor in interest subsequently entered into lease amendments dated February 10, 1999, July 21, 1999, September 20, 2000, May 16, 2001, October 17, 2001, July 17, 2002, May 19, 2004 and July 14, 2004, copies of which are attached hereto and made a part hereof, and WHEREAS, the July 17, 2002 amendment amended the renewal term of the Original Agreement and now provided the predecessor in interest with an option to renew the Original Agreement for two additional (5) year terms; and WHEREAS, the predecessor in interest exercised his initial option to renew the Original Agreement and the County and the predecessor in interest entered into a Renewal Agreement dated July 15, 2003, copy of which is attached hereto and made a part hereof; and WHEREAS, the predecessor in interest assigned all of his rights, title and interest in the Original Agreement to the Lessee pursuant to a contract for sale/purchase of the restaurant; and WHEREAS, the County entered into a Consent To Assignment Of Lease dated April 20, 2005, copy of which is attached hereto and made a part hereof; and WHEREAS, an American with Disabilities Act (hereafter ADA) complaint has been filed against the Lessee citing ADA deficiencies on the leasehold premises at 1000 Atlantic Blvd., Key West, Florida; and WHEREAS, under the terms of the original agreement the Lessee agreed not to make any major alterations to the building located on the lease hold without first obtaining approval from the County; and WHEREAS, the current renewal term expires on August 11 2008, and the Lessee has informed the County of the Lessee's intent to exercise the Lessee's 2°`renewal option; and WHEREAS, the Lessee has agreed to effect all of the ADA modifications at Lessee's cost and proposes to make additional capital improvements at leasehold premises at Lessee's costs; and WHEREAS, Lessee is seeking an additional term of years beyond the 2"d renewal option in exchange for effecting additional capital improvements separate and apart from the ADA modifications; and WHEREAS, Lessee and County find that, for purposes of clarity, it would be mutually beneficial to enter into a new Lease and terminate Lessee's current Lease along with all amendments and renewals entered pursuant thereto; NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: Mutual: Termination of Existina Lease. The parties mutually agree to cancel their August 12, 1998 original Lease Agreement, February 10, 1999, July 21, 1999, September 20, 2000, May 16, 2001, October 17, 2001, July 17, 2002, May 19, 2004, amendments and July 15, 2003 renewal agreement effective August 11, 2008, with neither party having any further duty, obligation or liability to the other under the tenais of the above listed documents. 2. Premises. The County does hereby lease to Tenant and Tenant leases from the County, a concrete building now situated on Clarence S. Higgs Memorial Beach, 1000 Atlantic Blvd., Key West, Monroe County, Florida, in its as is condition. Square footage allocations shall be limited to the interior and enclosed patio area referenced in Exhibit "A" attached hereto and incorporated herein. 3. Term and Effective Date. Lessor does hereby grant to the Lessee the exclusive right and. privilege of operating and maintaining a full service concession/restaurant at Clarence S. Higgs Memorial Beach, Key West, Monroe County, Florida, for a term of five (5) years commencing August 12, 2008 and terminating on August 11, 2013 unless extended in accordance with the terms set forth in subsection ii) below. i)Within the first year of the lease term, Lessee agrees to make the following modifications, at Lessee's cost, pursuant to the Stipulated Settlement Agreement in ADA case # 08-10007 filed in the United States District Court, Southern District of Florida: a) Modify the main entrance to the restaurant by installing a proper ramp in order to eliminate the change in level. b) Install proper signage to indicate the accessible entrances to the restaurant, patio area and accessible bathroom. c) Install proper door hardware on all entrance and public doors. d) Provide accessible tables in all dining areas and bar area with proper signage indicating accessible tables. e) Provide an accessible route from the bar/restaurant area to the restaurant restrooms including the addition of a ramp or deck to provide a level surface for access. 0 Modify the existing women's restroom to make a unisex accessible restroom which will require changes to the door entrance, pathway within, fixture modifications and proper signage. g) Establish appropriate employee training policies. h) Maintain all accessible features in the future. 2 i) Ensure any future modifications, alterations, or changes are in compliance with the ADA. j) Request Lessor provide an additional disabled parking space along with proper striping and signage of the accessible parking space creating an accessible route to the restaurant and relocating bicycle racks to prevent encroachtnent into the accessible route. ii)Upon completing the ADA compliance modifications listed above, Lessee anticipates completing additional capital improvements estimated to cost $125,000 as listed below; a) Update all electrical and plumbing in the building to bring it in compliance with all current code requirements. b) Remove and replace the outside patio deck area to level the floor with the main dining room floor. c) Revamp and replace the roof over the outside patio deck area to create a more substantial roof surface. d) Remodel and enlarge the stall areas of the restaurant restrooms to make both accessible and in compliance with the ADA rather than having only one unisex accessible restroom which is proposed for installation in 2008-2009. If Lessee has previously completed all ADA modifications listed in subsection i) a j, Lessee shall be entitled to extend the lease two additional years for every $25,000 spent on capital improvements listed in subsection ii) a — d up to a maximum of 10 years. All improvements listed in subsection ii) must be completed by August 12, 2012 unless extended by mutual agreement. Upon providing proof, in the form of material invoices, construction contracts, etc., to the Director of Facilities Maintenance as to the total amount spent on capital improvements listed in subsection ii) a-d, the parties will enter into an amendment extending the term of the Lease Agreement 2 years for every $25,000 in capital improvement. 4. Rent, Maintenance Fee, Tax,. The total monthly rental payment (hereinafter collectively known as "rent"), shall include rent, applicable sales tax and a maintenance fee to cover the cost of the Lessor providing janitorial services and the opening and closing of the public restrooms. The initial rent for the Premises including the maintenance fee and applicable sales tax is $7,334.94 per month, payable in advance on or before the first business day of each month. The rent will be adjusted annually beginning with the first anniversary of the commencement of the lease teen, and at every anniversary thereafter, by a percentage equal to the increase in the CPI for all urban consumers (CPI-U) for the calendar year immediately preceding the anniversary date. 5. Termination.This Agreement may be tenninated at the discretion of the Lessor in the following circumstances: a) Lessee fails to pay the rent when due; b) Lessee fails to obtain the insurance required under this Lease or allows the required insurance coverage to lapse or fall below the minimum required; c) Lessee otherwise breaches the terms of this Lease. Unless the Lessor has accepted in writing a delay in performance of duties, the failure to perform said duties shall constitute a default under the terms of this Lease Agreement. In the case of default/breach, the County's Director of Facilities Maintenance shall first give Lessee a written notification stating the default/breach and that Lessee has ten (10) days to correct the default/breacli. If the Lessee has not corrected the default/breach at the end of the ten (10) days, then the Lessor may terminate the Lease in its discretion. If it shall be necessary to employ the services of an attorney in order to enforce its rights under this Lease Agreement, the Lessor shall be entitled to reasonable attorney's fees. Waiver of a default in any particular month shall not bind the Lessor to forego the provisions of this paragraph and any subsequent default shall be grounds for termination. 6. Lessee Covenants. Lessee covenants and agrees as follows: A. To keep open such concession/restaurant Monday -Sunday, including holidays, from 7:00 A.M. — 11:00 P.M., and shall not exceed the established beach hours as specified in Monroe County Ordinance 13.5-3(2)(E). Hours of operation may be modified by mutual agreement. B. To furnish the necessary equipment, furnishings and fixtures needed to operate the concession/restaurant. All moveable equipment and furnishings shall remain the property of the Lessee and may be removed from the premises by Lessee at the termination of this lease agreement, with Lessor's consent. If Lessee fails to remove said moveable equipment or furnishings within ten (10) days after termination of this lease, said items shall then become the property of the Lessor. C. Lessee shall maintain a City and County occupational license during the period of this lease. D. Lessee agrees to keep the leased premises in a safe, clean and well -maintained order at no expense to the Lessor. This provision is to be monitored by the Director of Public Facilities Maintenance or his representative. E. Lessee agrees to operate its business in a business like manner. 7. Lessor Covenants. In connection with the above demised premises, the Lessor covenants with the Lessee that conditioned upon Lessee's performance and observance of Lessee's covenants herein, Lessee shall have quiet enjoyment and peaceable possession of the premises during the term of this Lease. In the event the County elects to maintain and/or improve its properties in the vicinity of the leasehold herein, either by necessity, or by choice, such activity will not be considered as a breach of any covenant of this lease. Lessor further covenants and, at its cost, agrees: a) to provide proper striping and signage of the accessible parking space and to provide a second accessible parking space adjacent to the current accessible parking space in conjunction with the accessible route to the restaurant. b) relocate the bicycle racks to prevent encroachment into the accessible route leading to any accessible entrance to the restaurant. c) to establish a policy of enforcement if cars are improperly parked to notify the car owner or have the vehicle towed pursuant to F.S. Sec. 316.1955(1)(a) 8. Assianrnent. It is agreed by the parties hereto that Lessee may elect to sub -lease or assign this Lease Agreement only upon written consent of the Monroe County Board of County Commissioners which shall not be unreasonably withheld. The terms of this Lease Agreement shall be binding on the heirs, executors, administrators, sub -lessees and assigns of Lessee. 4 9. Mechanic's Liens,_ Lessor's Rights. It is hereby covenanted, stipulated and agreed by and between the parties hereto that: A. there shall, during said demised term, be no mechanic's liens placed upon the concession/restaurant or improvements thereto. B. in case of any attempt to place a mechanic's lien on the leasehold premises, the Lessee must pay off sarme. C. if default in payment thereof shall continue for thirty (30) days after written notice, Lessor shall have the right and privilege, at its option, to pay off any mechanic's lien or any portion thereof and the amount so paid, including expenses, shall, at Lessor's option, be designated as additional rent due from Lessee at the next rent due date after such payment, with interest calculated at the rate established by the Comptroller under Sec. 55.03, Fla. Stat., for the year in which the payment became overdue. Nothing in this section is to be read as a waiver or authorization by the County of its constitutional and statutory immunity and right to have its property free of such liens. 10. Sale of Alcoholic Beveralzes. Alcoholic beverages may be sold within the enclosed restaurant and patio area only upon acquisition and maintenance of proper licenses fiorn local, state and federal agencies. No carry -out sales of alcoholic beverages is pennitted. Sales and consumption of alcoholic beverages must cease by 11:00 P.M. 11, Entertainment. Entertainment may be provided only in the enclosed restaurant and patio area. Any entertainment must be acoustic soft background music and must cease by 11.00 P.M. 12. Licenses. Lessee shall be responsible for and provide all licenses required by all local, state and federal agencies including the Department of Health. 13. Premises to be Used For Lawful Purposes. It is expressly covenanted between the parties hereto that the Lessee will not use, suffer nor permit any person to use in any manner whatsoever the leasehold property, nor any portion thereof, for purposes calculated to injure the reputation of the leasehold property or of the neighboring property, nor for any purpose or use in violation of the laws of the Untied States, or of the State of Florida, or of the Ordinances of Monroe County or the City of Key West, Florida. Lessee will keep and save the Lessor forever harmless from any penalty or damage or charges imposed for any violation of any said laws, whether occasioned by neglect of Lessee and Lessee will indemnify and save and keep harmless the Lessor against and from any loss, cost, damage, and expense arising out of any accident or other occurrence, causing injury to any person or property whomsoever or whatsoever, and due directly or indirectly to the use of the leasehold premises or any part thereof by Lessee. 14. Limitation oftessor's Liability. It is further agreed that in no case shall the Lessor herein be liable, under any express or implied covenants in the Lease Agreement, for any damages whatsoever to the Lessee beyond the rent reserved by the Lease Agreement accruing, for the act, or breach of covenant, for which damages may be sought to be recovered against said Lessor, and that in the event said Lessee shall be ousted from the possession of said property by reason of any defect in the title of said Lessor or said Lessor's authority to make this lease agreement, said Lessee shall not be required to pay rent under this lease agreement while he is so deprived of said property, and that said Lessor shall not incur any liability as a result of such ouster. M 15. No Waiver of Breach. It is further mutually covenanted and agreed between the parties hereto that no waiver of a breach of any of the covenants of this lease agreement shall be construed to be a waiver of any succeeding breach of the same covenant. 16. Observance of County Rules and Remulations. The Lessee hereby covenants and agrees that he, his agents, employees or otherwise shall observe and obey all lawful rules and regulations which may from time to time during the term hereby promulgated and enforced by the Lessor at the beach. 17. County's Right of Entry. The Lessor reserves the right hereunder to enter upon the premises at any reasonable time during normal operating hours for the purpose of inspecting said premises to determine whether Lessee has complied and is complying with the terns and conditions of this Lease Agreement. The Lessee hereby agrees to keep the premises at all times in a clean and sanitary condition, and not to maintain or keep upon said premises any properties or equipment not used in connection with the operation of said business, unless authorized. by the Lessor to do SO. 18, Leasehold Improvements. The Lessee agrees not to make any major alterations to the building located on said premises, without first obtaining written consent of the Lessor to do so, which will not be unreasonably withheld. Such alterations shall be based on plans approved by the Director of Facilities Maintenance and shall be subject to all City and County code provisions governing construction. Lessee shall be responsible for obtaining any permits required by any government agency. All site improvements shall be pre -approved by the Monroe County Board of County Commissioners. 19. Leasehold Maintenance. During the term of this lease, Lessee is responsible for all maintenance and repairs, including major repairs such as structural work and. roof replacement and replacement of the building if destroyed. All repairs and replacement must be of the same or better quality as the original work and conforn to all applicable building codes. Lessee shall be responsible for and shall properly maintain the leased premises, and upon the tennination of this lease, shall leave the premises in at least as good condition as at the time of the commencement of this lease, normal use and occupancy excepted. The Lessee will keep the premises clean at all times and must meet all requirements for food handling as required by the Monroe County Department of Health. 20. Responsibilty for Property on Leasehold. All property of any kind that may be on the premises during the term of this Lease Agreement shall be at the sole risk of the Lessee. The Lessor shall not be liable to the Lessee or any other person for any injury, loss or damage to property or person on the premises. r 21. Damaae to Leasehold. In the event that the demised premises, or a major part thereof are destroyed by fire, storm, or any other casualty, the Lessor at its option and without assuming Lessee's responsibilities under Section 19 "Leasehold Maintenance", may forthwith repair the damage to such structure at its own cost and expense. The rental thereon shall cease until the completion of such repairs and the Lessor will immediately refund the pro rata part of any rentals paid in advance by the Lessee prior to such destruction. Should the premises be only partly destroyed, so that the major part thereof is usable by the Lessee, then the rental shall abate to the extent that the injured or damaged part bears to the whole of such premises and such injury 6 or damage shall be restored by the Lessor as speedily as is practicable and upon completion of such repairs, the full rental shall commence and the Lease shall then continue the balance of the term. If Lessor exercises its option to repair the premises, Lessee agrees to assign its right to the insurance proceeds to the Lessor. If insurance proceeds exceed the costs of repair, the Lessor will, at its option, either remit the excess funds to the Lessee or apply the excess funds as a credit towards Lessee's next due monthly rental payment. If repair costs exceed the insurance proceeds, Lessee agrees to pay Lessor within. 30 days for any and all costs of repair not covered by insurance proceeds. 22. Rights Reserved. Rights not specifically granted to Lessee by this Lease Agreement are reserved to the Lessor. 23. Rights of County. The Lessor shall have the absolute right, without limitation, to repair, reconstruct, alter or add to any structure or facility at Higgs Beach, or to construct new facilities at Higgs Beach. The Lessor shall, in the exercise of such right, be free from any and all liability to the Lessee for business damages occasioned during the making of such repairs, alterations and additions, except those occasioned by the sole act of negligence of the Lessor, its employees or agents. 24. Indemnification/Hold Harmless. Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, Lessee shall defend, indemnify and hold Lessor and the Lessor's elected and appointed officers and employees harmless from and against (i) any claims, actions or causes of action, (ii) any litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, fine, penalty or business interruption, and (iii) any costs or expenses (including, without limitation, costs of remediation in connection with a violation of any federal, state, or local law or regulation, attorneys' fees, and costs, court costs, fines and penalties) that may be asserted against, initiated with respect to, or sustained by, any indemnified party by reason of, or in connection with, (A) any activity of Lessee or any of its employees, agents, contractors or other invitees on the leasehold premises during the term of this Agreement, (B) the negligence or willful misconduct of Lessee or any of its employees, agents, contractors or other invitees, or (C) Lessee's default in respect of any of the obligations that it undertakes under the terms of this Lease Agreement, except to the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses arise from the intentional or sole negligent acts or omissions of the Lessor or any of its employees, agents, contractors or invitees (other than. Lessee). Insofar as the claims, actions, causes of action, litigation, proceedings, costs or expenses relate to events or circumstances that occur during the teen of this Lease Agreement, this section will survive the expiration of the term of this lease or any earlier tennination of this Lease Agreement. 25, Insurance Reguirements. Lessee shall obtain and maintain at it's own expense the insurance coverages listed in exhibit B. 26. Books, Records and Documents. Lessee shall maintain all books, records, and documents directly pertinent to performance under this Lease Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Lease Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Lease 7 Agreement for public records purposes during the term of the Lease Agreement and for four years following the termination of this Lease Agreement. 27. Governing Law Venue Interpretation: This Lease Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performcd 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 tenns or a term of this Lease Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. 27. Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. Any amendment to this Lease Agreement shall be in writing, approved by the Board of County Commissioners, and signed by both parties before it becomes effective. 28. Severability. If any term, covenant, condition or provision of this Lease Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Lease Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Lease Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Lease Agreement would prevent the accomplishment of the original intent of this Lease Agreement. The Lessor and Lessee agree to reform the Lease Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 29. Attorney's Fees and Costs. The Lessor and Lesse agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non -prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Lease Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. 30. Binding Effect. The terms, covenants, conditions, and provisions of this Lease Agreement shall bind and inure to the benefit of the Lessor and Lessee and their respective legal representatives, successors, and assigns. 31. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Lease Agreement have been duly authorized by all necessary County and corporate action, as required by law. 11 32. Claims for Federal or State Aid. Lessor and Lessee agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Lease Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission." 33. Adiudication of Disputes or Disagreements, Lessor and Lessee agree that all disputes and disagreements shall be attempted to be resolved by meet and. confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public mecting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Lease Agreement or by Florida law. 34. Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Lease Agreement, Lessor and Lessee agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Lease Agreement or provision of the services under this Lease Agreement. Lessor and Lessee specifically agree that no party to this Lease Agreement shall be required to enter into any arbitration proceedings related to this Lease Agreement. 35, Nondiscrimination. Lessor and Lessee agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Lease Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. Lessor and Lessee agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975,.as amended (42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1.912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; 10) Sections 13-101, et seq., Monroe County Code, relating to discrimination based on race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or expression, faimilial status or age; 11) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Lease Agreement. 9 36. Covenant of No Interest. Lessor and Lessee covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Lease Agreement, and that the only interest of each is to pelfonm and receive benefits as recited in this Lease Agreement. 37. Code of Ethics. Lessor agrees that officers and employees of the Lessor recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 38. No Solicitation/Payment. The Lessor and Lessee warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Lease Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firn, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Lease Agreement. For the breach or violation of the provision, the Lessee agrees that the Lessor shall have the right to terminate this Lease Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 39. Public Access. The Lessor and Lessee shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and trade or received by the Lessor and Lessee in conjunction with this Lease Agreement; and the Lessor shall have the right to unilaterally cancel this Lease Agreement upon violation of this provision by Lessee. 40. Non -Waiver of Immunity. Notwithstanding the provisions of Sec. 286.28, Florida Statutes, the participation of the Lessor and Lessee in this Lease Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local governrnent liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the Lessor be required to contain any provision for waiver. 41. Privileges and Immunities. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the Lessor, when performing their respective functions under this Lease Agreement within the territorial limits ' of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 42. Lesal Obligations and Responsibilities: Non -Delegation of Constitutional or Statutory Duties. This Lease Agreement is not intended to, nor shall it be construed 4 as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Lease Agreement is not 10 intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the Lessor, except to the extent permitted by the Florida constitution, state statute, and case law. 43. Non -Reliance by Non -Parties. No person or entity shall be entitled to rely upon the terms, or any of them, of this Lease Agreement to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or program contemplated hereunder, and the Lessor and Lessee agree that neither the Lessor nor the Lessee or any agent, officer, or employee of either shall have the authority to in.forn-1, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Lease Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Lease Agreement. 44. Attestations. Lessee agrees to execute such documents as the Lessor may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug - Free Workplace Statement. 45. No Personal Liability. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Lease Agreement or be subject to any personal liability or accountability by reason of the execution of this Lease Agreement. 46. Execution in Counterparts. This Lease Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Lease Agreement by signing any such counterpart. 47. Section Headings. Section headings have been inserted in this Lease Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Lease Agreement and will not be used in the interpretation of any provision of this Lease Agreement. 48. Mutual Review. This Lease agreement has been carefully reviewed by Lessee and Lessor, therefore this Lease agreement is not to be construed against either party on the basis of authorship. 11 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the clay and year first above written. (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK By Deputy Cleric Witnesses BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA LIZ Mayor/Chairperson KEY WEST HOPITALITY, LLC By Title: Managing Partner This document was prepared and a proved as to form by: ISAA) J. Mercado, Date Assistant C� Attorney Florida Bar No.: 0084050 P.Q. Box 1026 Key West, FL 33041 - 1026 (305) 292-3470 12 -- a{Ss,ac. Asrs;yL �' f b,awlr •hR_ fR2 0_ 'S11-7 2- AF.alt-+Ir ' F ARssA l 1 f Inc SB-to ` AME A 4 am SQ. F 54•C• till. G Sa . FT. teY•L 541PT. ® E©9-- 0 0 a 0 k lca \\ Co�(Ir-sSa--2- �neF€:T-) C�b4 t�hl.ti.s ..soT 1."CG.IhLbJ / �tT. �'rrac ttorv-�Ji� F—V16ED tollE!c�g . ........... EXHIBIT 2005 Fdinoi� MONROE COUNTY, FLORIDA RISK MANAGEMENT POLICY AND PROCEDURES CONTRACT ADMINISTRATION MANUAL General Insurance Requirements for Organizations/Individuals Leasing Ceouifty-awned Property Prior to the Organization or Individual taking possession of the property owned by the County, or commencing its concessionaire operations, the Organization/individual shall obtain, at his/her own expense, insurance as specified in the attached schedules, which are made part of this lease/rental agreement. The Organization/Individual will not be permitted to occupy or use the property until satisfactory evidence of the required insurance has been furnished to the County as specified below. The Organization/Individual shall maintain the required insurance throughout the entire term of this lease/rental agreement and any extensions specified in the attached schedules. Failure to comply with this provision may result in the immediate termination of the lease/rental agreement and the return of all property owned by the County. The Organization/Individual will be held responsible for all deductibles and self insured retentions that may be contained in the. Organization./Ind i A dual's Insurance policies. The Organization/Individual shall provide, to the County, as satisfactory evidence of the required insurance, either: Certificate of Insurance rm • A Certified copy of the actual insurance policy. The County, at its sole option, has the right to request a certified copy of any or all insurance policies required by this contract. All insurance policies must specify that they are not subject to cancellation, non -renewal, material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. The acceptance ancL/or approval of the Organization/Individual's insurance shall not be construed as relieving the Organization/Individual from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of County Commissioners, will be included as "Additional Insured" on all policies. They will also be named as "Loss Payee" with respect to Fire Legal Exposure. Adminktnuion Instruction #4709.0 EMEMEM EXHIBIT 29 11 2005 Edition Any deviations froni these Generai Insurance Requirements must be requested in writing on the County prepared forum entitled "Request for Waiver of Insurance Requirements" and approved by Morwoe County Risk Management. Adtninistrdtion instruction tt4709.6 30 C znns raition ALL RISK PROPERTY INSURANCE REQUIREMENTS FOR LEASES/RENTALS OF COUNTY -OWNED PROPERTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization/IndividuaI taking possession of the property governed by this lease/rental agreement, the Organization/individual shall obtain All Risk Property Insurance (to include the perils of Flood and Wind) with limits no less than the Replacement Cost Value of the property leased or rented. Coverage shall be maintained throughout the life of the Lease/Rental Agreement and include, as a minimum, liability coverage for: Fire Litin Vandalism S nnkler Leakage Sinkhole Collapse Faffin—a Objects Windstorm Smoke Explosion Civil Com notion Aircraft and Vehicle Damage Flood The Monroe County Board of County Commissioners shall be nained as Additional Insured and Loss Payee on all policies issued to satisfy the above requirements. Administration Instruction #4709.6 31 2005 rdilinn GENERAL LIABILITY INSURANCE REQUIREMENTS FOR LEASE/RENTAL OF PROPERTY OWNED BY THE COUNTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization/Individual taking possession of the property governed by this lease/rental agreement, the Organization/.Individual shall obtain General Liability Insurance. Coverage shall be maintained tlu-oughout the life of the contract and include, as a minimum: • Premises Operations • Products and Completed Operations • Blanket Contractual Liability • Personal Injury Liability • Expanded Definition of Property Damage • Fire Legal Liability (with limits equal to the fair market value of the leased property.) The minimum limits acceptable shall be: $300,000 Combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: $100,000 per Person $300,000 per Occurrence $ 50,000 Property Damage An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective date of this contract. In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the termination of the Lcase/Rental Agreement. The Monroe County Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. Administration Instruction 174709.6 32 2005 Edition VEHICLE LIABILITY INSURANCE REQUIREMENTS FOR LEASES/RENTALS OF COUNTY -OWNED PROPERTY BETWEEN MONROE COUNTY, FLORIDA AND Prior to the Organization/[ ndividua I taking possession of the property governed by this tease/rental agreement, the Organization/Individual shall purchase Vehicle Liability Insurance. Coverage shall be maintained throughout the life of the Lease/Rental Agreement and include, as a niiniinuin, liability coverage for; • Owned, Non -Owned, and Hired Vehicles • Physical Damage Protection (if the leased property is a County -owned vehicle) The minimum limits acceptable shall be: $300,000 Combined Single Limit (CSL) is ACV for Physical Damage If split limits are provided, the minimum limits acceptable shall be: $ 100,000 per Person $ 300,000 per Occurrence $ 50,000 Property Damage ACV for Physical Damage The Monroe County Board of County Commissioners shall be gamed as Additional Insured on all policies issued to satisfy the above requirements. In addition, if the lease/rental agreement involves County -owned vehicles, the Monroe County Board of County Commissioners shall be named as "Loss Payee" with respect to the physical damage protection. Administration Instruction #4709,6 33 1996 Edition LIQUOR LIABILITY INSURANCE REQUIREMENTS FOR CONTRACT BETWEEN MONROE COUNTY, FLORIDA AND Recognizing that the work governed by this contract involves the sales and/or distribution of alcoholic beverages, the Contractor's General Liability Insurance policy shall include Liquor Liability with limits equal to those of the basic coverage. A separate Liquor Liability policy is acceptable if the coverage is no more restrictive than the Contractor's General Liability policy. The Monroe County Board of County Commissioners will be included as Additional Insured if a separate Liquor Liability policy is provided. GLLIQ Administration Instruction #4709.2 59 This Consent to Assignment is entered into this 20th day of April, 2005, by and between Monroe County, a political subdivision of the State of Florida, hereafter County, Conch Cruisers, Inc., hereafter Assignor, and Francis J. Gonzon, hereafter Assignee, the parties agreeing as follows: 1. The County leases approximately 3,928 s.f. of restaurant space at Higgs Beach, Key West, Florida, through an Agreement dated August 12, 1998, hereafter the original agreement, and renewed on July 17, 2002 for one five- year term commencing August 12, 2003, with an additional five-year extension commencing August 12, 2008, at the Lessee's option. The original agreement has been modified to reflect changes in rent obligations on July 15, 2003, May 19, 2004, and July 1.4, 2004. The original agreement, modifications and renewal agreements are attached and incorporated into this Consent to Assignment. 2. Paragraph 7 of the lease provides that the Lessee may elect to sub -lease or assign the lease agreement only upon the previous written consent of the Board of County Commissioners for Monroe County. 3. The Assignor and Assignee have entered into a contract for sale/purchase of the restaurant business which contract includes an assignment to Assignee of all the Assignor's rights, title and interest in the lease. 4. In consideration for such consent, the Assignee agrees to be bound by all the terms and conditions of -the original agreement, as previously amended. IN WyJA i 41I0-EOF, the parties have set their hands and seals as of the date first is 'r) 5 BOARD OF COUNTY COMMISSIONERS ATTEST: DANNY L. KOLHAGE, CLERK OF MONRO CO OF 0 DA Byjloja C . Deputy Clerk LESSEE CONCH CRUISERS, INC. BY: Dawn Parinello BY: Mayor Dixie M. Spehar LESSE I BY: c s nzon MONROE COUNTY ATTORNEY AR O4NA. TO FO ZAHU OateASSISTANT t!N Ya ORNEY CONTRACT AMENDMENT Salute Restaurant at Higgs Beach This Contract Amendment is made and entered into this July 14, 2004, between the COUNTY OF MONROE and Conch Cruisers, Inc. in order to amend the agreement between the parties dated August 12, 1998, as amended May 16, 2001, as amended on July 17, 2002, and Renewal Agreement dated July 15, 2003, and Contract Amendment dated May19, 2004, copies incorporated hereto for reference, as follows: 1. To correct action of May 19, 2004, to include 1.9% CPI rent increase to the monthly sum of $1,162.00 per month to cover the cost of the County providing janitorial services and opening and closing the public restrooms at Higgs Beach. 2. Monthly rent, therefore, shall be payable to Monroe County in the amount of $6,514.17, which shall include both the $5,330.09 rental fee and the $1,184.08 maintenance fee. In all other respects, the original agreement between the parties dated August 12, 1998, as amended May 16, 2001, as amended on July 17, 2002, and Renewal Agreement dated July 15, 2003, and Contract Amendment dated May 19, 2004, remains in full force and effect. IN -.WITNESS WHEREOF, the parties have hereunto set their hands and sea[ the day and year fiat written above. (Seal) Attest: DANNY L. KOLHAGE, CLERK By, eouty Clerk Witness BOARD OF COUNTY COMMISSIONERS OF=NROE COUNTY, FLORIDA CONCH CRUISERS, INC. r, 3 0 c� .. C= d :Oi'JizGi OCi�,di' AIT`'"; .. _ ►v CO C:) AP POVEO Aw z=- c:-r UZA N E �. L'i0! SISTAN 'Y r'ORNFY rri Date --,___- Cat Cn °.:D CONTRACT AMENDMENT Salute Restaurant at Higgs Beach This Contract Amendment is made and entered into this May 19, 2004, between the COUNTY OF MONROE and Conch Cruisers, Inc. in order to amend the agreement between the parties dated August 12, 1998, as amended on July 17, 2002, and Renewal Agreement dated July 15, 2003, copies incorporated hereto for reference, as follows: 1. In accordance with Article 2. of the July 15, 2003 Renewal Agreement: "The Lease amount shall increase by the Consumer Price Index (CPI), National Index for Wage Earners and Clerical Workers, and shall be based upon the Annual Average CPI computation from January 1 through December 31 of the previous year. The GPI increase shall be calculated for each additional year for the five-year period. 2. Rent, therefore, payable to Monroe County, shall increase by 1.9% from $5230.71 per month to $5330.09 per month ($99.38 per month additional). In all other respects, the original agreement between the parties dated August 12, 1998, as amended on July 17, 2002 and Renewal Agreement dated July 15, 2003, remains in full force and effect. WHEREOF, the parties have hereunto set their hands and seal the day ,Written above. .'r Si:� CC •.. 'ii L. KOLHAGE, CLERK sputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: 2 r— aE)i: C1 By:07- 1,,U))NROE COUNTY KFTORINE? .._._ OVED ,kS 'UZANNE . HUTTON <;SS IST!A T 'NTYATT0 gr RENEWAL AGREEMENT 7 CD (Salute' Restaurant at Higgs Beach)1-71 o� This Renewal Agreement is made and entered into this July 15, 2003, betwee11 #e' COUNTY OF MONROE and Conch Cruisers, Inc. in order to renew the Lease, F cis Agreement between the parties dated August 12, 1998,as amended on July !IQ 02 � copies incorporated hereto for reference, as follows:CD 1. In accordance with Article 1, of the July 17, 2002 Lease Amendment, the essee x exercises the option to renew the lease.for the first of two (2) five-year terms; the first c to commence on August 12, 2003, and terminate on August 11, 2008, 2. The Lease amount shall increase by the Consumer Price Index (CPI), National Index for Wage Earners and Clerical Workers, and shall be based upon the Annual Average CPI computation from January 1 through December 31 of the previous year. The CPI increase shall be calculated for each additional year for the five-year period. 3. Rent, therefore, payable to Monroe County shall increase by 2.4% from $5108.12 per month to $5230.71 per month. In all other respects, the original agreement between the parties dated August 12, 1998, 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. (Seal) Attest: DANNY L. KOLHAGE, CLERK �ra� Witness BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA 0 oe/j4; >"7;7. 4"e4,) Conch Cruisers, Inc. 744��9 Witness awn Parris Ilo, Presid nt APPROVED AS TO FORM AN _qjklTAL SL1FF 5' ZANNz iTON LEASE AMENDMENT (Salute' Restaurant at Higgs Beach.) THIS Amendment is made and entered into this 17a` day of July 2002, between the COUNTY OF MONROE and CONCH CRUISER'S INC. in order to amend the Agreement dated August 12, 1998, (a copy of which is incorporated hereto by reference) as follows: 1. Revise paragraph 3 of the Lease to provide Lessee the option to renew the lease for two additional five (5) year terms; the first to commence, at Lessee's option, on August 12, 2003 (as presently provided in the lease); and the second terra to commence, at Lessee's option, on August 12, 2008, 2. Revise paragraph 6(A) of the lease to provide: (1) Lessee shall be entitled to close the restaurant for three (3) weeks, between the dates September 16 and October 15 of each year; and (II) Public restrooms shall be opened at 7:00 a.m. and close at 11:00 p.m., Monday — Sunday, including holidays, pending change in County Ordinance #13.5- 3 (2)(C). 3. In all other respects, the original agreement between the parties dated August 12, 1998, remains in full force and effect. •;� 1TNESS WHEREOF, the parties have hereunto set their hands and seal, the day and b en above. e. • L L. KOLHAGE, CLERK B • D puty Clerk Witness to ouch C isers, Inc. Wwne�oo ��ui�rs Inc. BOARD OF COUNTY COMMISSIONERS OF MONROE COUN7T, FLORIDA j Xj d r By: CONCH CRUISERS, INC. By: v awn Parrinello, Presiden��� �= CD .' _v r- M APPROVED AS TO FOR n AND LEGAL SUFFICIEN G A`t�INE U ©ATE _,n CONTRACT AMENDMENT ( Salute' Restaurant at Higgs Beach) This Contract Amendment is made and entered into this 171h Day of October, 2001, between the COUNTY OF MONROE and Conch Cruisers, Inc. in order to amend the agreement between the parties dated August 12, 1998, copies incorporated hereto for reference, as follows: Revise payment schedule for September through December 2001, from being payable on the first day of the month, in advance, to submitting September's payment by October 15'h, 1/3 of October's payment by October 31'`, 2/3 of October's payment and 113 of November's payment by November 151h, 1 /3 of November's payment by November 30`h, and the balance of November and all of December's payment by December 15`h, 2001, 2. In all other respects, the original agreement between the parties dated August 12, 1998, remains in full force and effect. IN WITNESS WHEREOF, the parties have hereunto set their hands and sea[ the day and year first written above. tness Witness BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA CONCH CRUISERS, INC. APPROVED A5 TO Fo M AND AL SUFFICIE '%Y ANN I WON 0 0 C Q F o -� C rrn -n 4`7 • • C s C� 3> rn C n o Q THIRD AMENbMENT TO LEASE AGREEMENT (Higgs Beach Concession/Restaurant) THIS LEASE AMENDMENT entered into the 1 &+ day of Mu �/ , 2001, by and between the Board of County Commissioners, Monroe County, Florida (Lessor) and Conch Cruisers, Inc., (Lessee). WHEREAS, the parties did enter into a lease on August 12, 1996, and WHEREAS, said Lease has been amended twice; and WHEREAS, said Lease provides in Paragraph 6(a) to open public restrooms from 7 AM to sunset seven days a week year round, including holidays; and WHEREAS, paragraph 6(c) of the Lease provides for Lessee to provide full janitorial services for the public restrooms including. provWi% ail janitm-k&_-wppbzs and paper products; and WHEREAS, said janitorial services are to be provided an a daily basis to ensure restrooms are clean and sanitary; and WHEREAS, said Lease makes no separate provision for adjustments or action other than termination of the Lease for breach of covenants under Paragraph 5, which conditions Lessee's possession upon performance and observance of Lessees covenants; and WHEREAS, said Paragraph allows the County to maintain the property but does not provide any penalty for Lessee's failure to do so; and WHEREAS, numerous complaints: and bad inspection reports have been generated as a result of Lessees failure to keep the restrooms open the requisite number of hours and failure to keep the public restroom clean and sanitary; and WHEREAS, the County deems it necessary to the sanitation of the public restrooms, thereby affecting public health and safety, to clean the restrooms; and WHEREAS, Lessee is willing to relinquish responsibility for the public restrooms and increase the monthly rental fee to cover the County's cost of assuming such responsibility; now, therefore IN CONSIDERATION of the promises contained herein, the lease dated August 12, 1998, as previously amended, is hereby amended as follows: 1. Paragraph 1 is amended to read: This Lease evidences fie grants, covenants and agreements made between the parties with reference to the following described premises and as further identified in Exhibit A. Clarence 5. Higgs Memorial Beach, Key West, Florida - including exclusive use of restaurant facilities and storage areas, to have the exclusive right to provide and maintain a full service concession/restaurant such as furnishing food and beach concession at Clarence S. Higgs Memorial Beach and maintain all equipment necessary for the operation of these facilities. 2. Paragraph 4 shall be amended to provide, as of the date of this Agreement, that monthly rent shall be increased by the sum of $1,162.00 per month to cover the cost of the County providing janitorial services and opening and closing the public restrooms. 3. Paragraph 6(a) shall be amended to delete the second sentence, such that the subparagraph provides only: To keep open such concession/restaurant Monday through Sunday, including holidays, from 7 AM to 10 PM, and shall not exceed the established beach hours specified in Monroe County Code, Sec. 13.5-3(2)(e). 4. Paragraph 6(c) shall be deleted. 5. The remaining provisions of the original lease agreement between the parties dated August 12, 1998, as previously amended, not inconsistent herewith, remain in full force and effect. WITNESS WHEREOF, the parties hereto have caused these presence to be executed as of the rst above written. BOARD OF COUNTY COMMISSIONERS L. KOLHAGE, Clerk F MONROE COUNTY, FLORIDA Y eputy C erk Mayor/Chairman r'��amrlw� Witnesses Jdleaseconch3 APPROVED A$ T6 FOR AND L SUFFICE BY C_ NNE . H ON DATE / (l CONCH CRUISERS, INC. By Dawn M. Parrinello GCD � C7 �• .r :C3 c rr O � r3 SECOND AMENDMENT TO LEASE AGREEMENT (Higgs Beach Concession/Restaurant) THIS LEASE AMENDMENT entered into the 20th day of September, 2000 by and between the Board of County Commissioners, Monroe County, Florida (Lessor) and Conch Cruisers, Inc., Sal Parrinello (Lessee) in order to amend that certain Lease Agreement entered into between the parties dated August 12, 1998, WHEREAS, the Lessee leases the Higgs Beach Restaurant and Concession from Lessor; and WHEREAS, Lessor previously abated rent for loss to business resulting from Hurricane Georges damage and prior beach closing; and WHEREAS, Lessee has requested an abatement of rent for the period from June 1, 2000 through August 17, 2000, due to poor business while Higgs Beach was closed; now therefore IN CONSIDERATION of the promises contained herein, the lease dated August 12, 1998, as previously amended, is hereby amended as follows; 1. The Lessor hereby grants an abatement of rent. 2. One half of the rent paid by Lessee for the period of June 1, 2000 through August 17, 2000 shall be applied to rent due for subsequent months. The sum of rent already paid for the period June 1, 2000 through August 17, 2000 is $11,859.24. This $5,929.62 credit shall be applied as follows: September $4,910.00 October $1,019.62 3. Lessee shall pay to Lessor by October 1, 2000 the sum of $3,890.38 for October. 4. Regular monthly rent payments will resume effective November 1, 2000 and continue each month thereafter through the end of the five-year lease terra. 5 All other respects, the original lease agreement between the parties dated August 12 1998, emains in full force and effect. /HEREOF, the parties hereto have caused these presence to be executed as of the written, o o � �- r= F5 M BOARD OF COUNTY COMMIS5I0tW� —+ r' RAGE, Clerk OF MO G CO U TY, FL TDA CW r- o— By = M Y Deputy Clerk Ma r/Chairman a co c1 CONCH CRUISERS, INC. °ROVED A5 TO F RAY Witnesses ir.mW suFY-1d NCSal Parrinello jdleaseconch00 FILED FANDMENT TO LEASE AGREEMENT REqA1 Beach Concession and Restaurant) This Amend N 1s ent is made and entered into this day of July, 1999, by and betweeIMRJJ NTYCOMMISSIONERS OF MONROE COUNTY, FLORIDA (Lessor) and CONCH CRcello, (Lessee) in order to amend that certain Lease Agreement entered into ftfftsxdated August 12, 1998. WHEREAS, the Lessee leases the Higgs Beach Restaurant and Concession from Lessor; and WHEREAS, the Lessee has experienced a catastrophic and devastating loss of business due to the pollution and contamination of the waters around Higgs Beach; and WHEREAS, fire publicity surrounding the aforementioned has drastically reduced the amount of visitors to Higgs Beach, and WHEREAS, paragraph 22 of the Lease between the parties allows the Lessor to grant an abatement of rent; and WHEREAS, Lessee has paid rent in full through June of 1999, respectfully NOW, THEREFORE, the lease agreement dated August 12,1998, is hereby amended as follows, i. In accordance with paragraph 22 of the Lease, the Lessor hereby grants an abatement of rent due to the closure of Higgs Beach caused by the pollution and contamination of adjacent waters as determined by The State of Florida, Department of Health. 2. Rent abatement will commence on June 11, 1999, and continue for a period of two weeks after the date the State of Florida, Department of Health declare the aforementioned waters once again safe for public use. Pre -paid rent will be applied to the next months rent due and owing under the terms of this amendment. 3. In an other respects, the original Lease Agreement between the parties dated August 12, 1998, remains in full force and effect. OF, the parties have hereunto set their hands and seals, the date and year first A XKTA611411AGE, CLERK f By Deputy/Clerk Ow A IL al-F tf . D, Witnesses jieasecnkcruz BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BY Mayor/Chairperson AMENDMENT TO LEASE AGREEMENT (Higgs Beach Concession/Restaurant) This amendment to Lease Agreement is made and entered into this I0+h day of 1999, by and between the BOARD OF COUNTY COMMISSIONERS bF MONROE COUNTY, FLORIDA (Lessor) and CONCH CRUISERS, INC., Sal Parrinello, (Lessee) in order to amend that certain Lease Agreement entered into between the parties dated August 12, 1998. WHEREAS, the Lessee leases the Higgs Beach Restaurant and Concession from Lessor, and Lessor allowed the Lessee to occupy the restaurant beginning August 13, 1998, for the purpose of coordinating demolition and renovation of said facility; and WHEREAS, the Lessee planned to complete renovations and open the restaurant for business beginning November 28, 1998; however, due to Hurricane Georges, the Lessee was not able to commence full operation of said business until January 21,1999; and WHEREAS, paragraph 22 of the lease between the parties allows the lessor to grant an abatement of rent until such time as the damaged facility is restored; WHEREAS, Lessee paid October's rent of $4,583.33 and November's rent of $4,583.33, which should be applied to rent due for January 21,31999, t b -� February 20,1999, and February 21, 1999, to March 20, 1999, respectful@ ? 3 F Qr- NOW, THEREFORE, the lease agreement dated August 12, 1998,gct�ereb46 amended as follows: rn 1. In accordance with paragraph 22 of the lease, the LessP *eb& grants an abatement of rent for Lessee's loss of business moused by damage to the facility from Hurricane Georges. 2. Because the restaurant did not open until January 21, 1999, rent payments made by the Lessee for October, 1998, and November, 1998, shall be credited to the first two month's of operation as follows: January 21, 1999 - February 20, 1999, and February 21, 1999 - March 20, 1999. 3. Pro -rated rent to be paid by Lessee for March 21, 1999 - March 31, 1999, is due on March 21,1999, in the amount of $1,808.16. 4. Regular monthly rent payments of $4,583.33 will commence April 1, 1999, and continue each month thereafter through the end of the first year's term ending September 30, 1999. 5. In all other respects, the original lease agreement between the parties dated August 12,1998, remains in full force and effect. IN WITNESS WHEREOF, the parties have hereunto set their hands and the dayand year first written above. :meal.) BOARD OF COUNTY COMMISSIONERS �A,tests--D*3NY L. KOLHAGE, CLERK OF MONROE COUNTY, FLORIDA M. r J Witness Witness By. Mayor/Chairman CC By APPROVED R fI FOR ANDDG C;AL SU S1fFFICiE 9y NN NU �N DATE SECTION THREE NRr,OTIATED LEASE AGREEMENT THIS lease, entered into on the 1=day of AAUg'iLi445, by and between the BOARD OF COUNTY COMMISSIONERS, MONROE COUNTY, FLORIDA (Lessor) and CQ11C, Cruisers, 1nc•,5AiRaaiU14L(Lcssee), whose address is 111QKida,a3044• The parties to this lease hereby agree to the following: 1. This lease evidences the grants, covenants and agreements made between the parties with reference to the following described premises and as further identified in Exhibit "A". Clarence S. Higgs Memorial Beach, Key West, Florida - including exclusive use of all existing facilities, restaurant, bath house, and storage areas, to have the exclusive right to provide and maintain a full service concession/restaurant, such as famish food and beach concession and provide janitorial services to the public rest rooms inclusive of opening and closing and supplying paper products at Clarence S. Higgs Memorial Beach and maintain all equipment necessary for the operation of these facilities. 2. The Lessor hereby grants to the Lessee the exclusive right and privilege of operating and maintaining a full`service concession/restaurant at Clarence S. Higgs Memorial Beach, Key West, Monroe County, Florida, for a term of five (5) years, said concession/restaurant to be located at the concrete building now situated upon said beach, and in as is condition. Square footage allocations shall be limited to the interior and enclosed patio area as referenced in Exhibit "A". 3. The Lessee may exercise an option to renew this lease for an additional five itt years with written notice of written consent of the Board of County Commissioners, by giving Lessor their intention to exercise said option within sixty (60) days previous to the expiration of the original five (5) year term. 4, The Lessee, in consideration of the foregoing rights and privileges, does hereby covenant with the Lessor to pay rental fees as €ollows: Year one (I)-- Monthly rent S4,583.33 ($55,000.00 per year) Monthly rent $4,910.00 ($58,920.00 per year) The contract/agreement (lease) amount agreed to herein maybe adjusted annually in accordance with change in the Consumer Price Index (CPI), national Index for Wage Earners and Clerical Workers, and shall be based upon the annual average CPI computation from January 1 through December 31 of the previous year. A. Upon execution of this lease and prior to. the Lessor's delivery of the premises to Lessee, Lessee shall deliver to the Lessor the sum of $503M, for the first month's rent and damage deposit of $500,00 and an irrevocable letter of credit from a local basin the amount of $4,910 for the last months rent. Lessor shall not be required to post bond securing said advance rent or deposit. -7Z ad CD to �r � on• �7l � O � rn -n B. The first month's rent, paid in advance, shall be for the month of October JDB. Rent shell be due on the first day of each and every month thereafter, rent being payable in advance during the term of this lease. Lessee may assume occupancy as of August 13 for the purpose of coordinating demolition and renovation improvements, conditioned upon his full compliance with all terms of this lease, inclusive of insurance coverage effective as of said date. In addition to the foregoing rental payments, the Lessee covenants and agrees with the Lessor to pay State taxes, if any, and all utility charges, including but not limited to electric, water, sewer, and solid waste at said concession/restaurant, which shall be a result of the operation of the facilities granted under this lease. The Lessor reserves the right to terminate this lease for non-payment of rent by the Lessee for a period of fifteen (15) days or more. 5. In connection with the above demised properties, the Lessor covenants with the Lessee that conditioned on Lessee's performance and observance of Lessee's covenants herein, Lessee shall have quiet enjoyment and peaceable possession of the premises during the term of this lease. In the event the county elects to maintain and/or improve its properties in the vicinity of the leasehold herein, either by necessity, or by choice, such activity will not be considered as a breach of any covenant of this lease. 6. Lessee further covenants and agrees as follows: A. To keep open such concession/restaurant Monday -Sunday, including holidays, from 7:OOAM-10:OOPM, and shall not exceed the established beach hours in as specified in Monroe County Ordinance 13.5-3 (2)(E).. Public rest rooms shall be opened at 7:OOAM and closed at sunset, Monday -Sunday, including holidays, in accordance with Monroe County Ordinance 13.5-3(2)(C). B. To furnish the necessary equipment, furnishing and fixtures needed to operate the concession/restaurant. All moveable equipment and furnishings shall remain the property of the Lessee and may be removed from the premises by Lessee at the termination of this lease agreement, with Lessor's consent. If Lessee fails to remove said moveable equipment or furnishings within ten (10) days after termination of this lease, said items shall then become the property of the Lessor. C. Lessee shall provide full janitorial services for the public rest rooms inclusive of providing all janitorial supplies and paper products. Janitorial service frequency shall be on a daily basis to ensure rest rooms are maintained clean and sanitary. Rest rooms are to be inspected during the regular business day to ensure supplies are available and facility is clean and properly sanitized. D. Lessee shall maintain a City and County Occupational License during the period of this lease. E. Lessee agrees to keep the leased premises in a safe, clean, and well -maintained order at no expense to the Lessor. This provision is to be monitored by the Director of Public Facilities Maintenance or his representative. F. Lessee agrees to operate his business in a business -like manner. 7 7. It is agreed by the parties hereto that Lessee may elect to sub -lease or assign the lease agreement only upon previous written consent of the Board of County Commissioners for Monroe County. The terns of this agreement shall be binding on the heirs, executors, administrators, sub -lessees and assigns of Lessee, which shall not be unreasonably withheld. 8. It is hereby covenanted, stipulated and agreed by and between the parties hereto that therF shall, during the said demised term, be no mechanic's liens upon the concessiordrestaurant or improvements thereto; in case of any attempt to place a mechanic's lien on premises, the Lessee must pay off the same; and that if default in.payment thereof shall continue for thirty (30) days after written notice, said Lessor shall have the right and privilege, at its option, to pay off the same or any portion of the same, and the amount so paid, including expenses, shall, at the option of the said Lessor, be so much additional rent due from said Lessee at the next rent due after such payment, with interest at the rate established by the Comptroller under Sec. 55.03, F.S., for the year in which the payment became overdue. Nothing in this paragraph is to be read as a waiver or authorization by the County of its constitutional and statutory immunity and right to have its property free of such liens. 9. Alcoholic beverages may be sold within the enclosed restaurant and patio only, upon acquisition and maintaining proper licenses from local, state, and federal agencies. No carry -out sales of alcoholic beverages is permitted. Sales and consumption of alcoholic beverages must cease by 10:30 P.M. 10. Entertainment may be provided only in the enclosed restaurant and patio area. Any entertainment must be acoustic soft background music and must cease by 10:30 P.M. 11. Lessee shall be responsible for and provide all licenses required by all local, state and federal agencies, including Department of Health. 12. 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 said demised property, nor any portion thereof, for purposes calculated to injure the reputation of the premises 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 and that the Lessee will keep and save the Lessor forever harmless from any penalty or damage or charges imposed for any violation of any said laws, whether occasioned by neglect of Lessee, and that said 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 premises, or any part thereof, by the Lessee. 13. It is further agreed that in no case shall the Lessor herein be liable, under any express or implied covenants in this lease agreement, for any damages whatsoever to the Lessee beyond the rent reserved by the Lease agreement accruing, for the act, or breach of covenant, for which damages may be sought to be recovered against said Lessor, and that in the event said Lessee shall be ousted from the possession of said property by reason of any defect in the title of said Lessor or said Lessor's authority to make this lease agreement, said Lessee shall not be required to pay rent under this lease agreement while 3 he is so deprived of the possession of said property, and that said Lessor shall not incur any liability of such ouster. 141 1t is further mutually covenanted and agreed between the parties hereto that no waiver of a breach of any of the covenants of this lease agreement shall be construed to be a waiver of any succeeding breach of the same covenant. 15. The Lessee hereby covenants and agrees that he, his agents, employees or otherwise shall observe and obey all lawful rules and regulations which may from time to time during the term hereby promulgated and enforced by the Lessor at said beach. 16. The Lessor reserves the right hereunder to enter upon the premises at any reasonable time during normal beach hours for the purpose of inspecting said premises, and the Lessee hereby agrees to keep the premises at all times in a clean and sanitary condition, and not to maintain or keep upon said premises any properties or equipment not used in connection with the operation of said business, unless authorized by the Lessor to do so. 17. The Lessee agrees not to make any major alterations to the building located on said premises, without first obtaining written consent of the Lessor to do so, which will not be unreasonably withheld. Such alterations shall be based on plans approved by the Director of Facilities Maintenance and shall be subject to all City and County Code provisions governing construction. Lessee shall be responsible for obtaining any permits required by any governmental agency. 18. The Lessee shall be responsible for maintaining the structure. The Lessee will keep the premises clean at all times and must meet all requirements for food handling as required by the Monroe County Department of Health. All site improvements shall be pre - approved by the Monroe County Board of County Commissioners. 19. The Lessee shall be responsible for applying and obtaining all permits necessary by all local, state, and federal agencies. 20. Lessee covenants and agrees to indemnify and hold harmless Monroe County Board of County Commissioners from any and all claims for bodily injury (including death), personal injury, and property damage (including property owned by Monroe County) and any other losses, damages, and expenses (including attorney's fees) which arise out of, in connection with, or by reason ofthe Lessee utilizing the property governed by this leaselrental agreement. The extent of liability is in no way limited to, reduced, or lessened by the insurance, requirements contained elsewhere within this agreement. 21. All property of any kind that may be on the premises during the continuance of this Lease shall be at the sole risk of the Lessee, the Lessor shall not be liable to the Lessee or any other person for any injury, loss, or damage to property to any person on the premises. 4 22, In the event that the dernised premises, or the major part thereof arc destroyed by fire, storm, or any other casualty, the Lessor at its option may forthwith repair the damage to such structure at its own cost and expense. The rental thereon shall cease until the completion of such repairs and the Lessor will immediately refund the pro rata part of any rentals paid in advance by the Lessee prior to such destruction. Should the premises be only partly destroyed, so that the major part thereof is usable by the Lessee, then the rental shall abate to the extent that the injured or damaged part bears to the whole of such premises and such injury or damage shall be restored by the Lessor as speedily as is practicable and upon the completion of such -repairs, the full rental shall commence and the Lease shall then continue the balance of the term. 23. All written notices pursuant to this lease shall be forwarded to the following addresses: Lessor: Monroe County Public Works Lessee: Conch Cruisers, Inc. Facilities Maintenance Department Sal Parrinello 1601 Bahama Drive. 3583 South Roosevelt Boulevard Key West, Florida 33040 Key West, Florida 33040 24. If any dispute concerning this lease should arise between the Lessor and Lessee and which results in litigation, the prevailing party shall be entitled to payment of its reasonable attorney's fees and costs associated with said litigation from the losing party. 25. The Lessee will be responsible for all necessary insurance coverage as indicated on the attached forms identified as GIR, GL, WCI, VL., GLLIQ, ARP, and all other requirements found to be in the best interest of Monroe County, as may be imposed by the Monroe County Risk Management Department. All insurance required coverages shall actively be maintained during the lease terra. 26. This lease shall be governed by the laws of the State of Florida. Venue for any disputes arising under this agreement shall be in a court of competent jurisdiction in Monroe County, Florida. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed as of the day and year first above written. (SEAL) Attest: DANNY L. KOLHAGE, CLERK B Witn ss` Witn s BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLOMA By May airman (Lessee) APPROVED AS TO FORM qND t 5t)FFItIEN Y BY A NE O DATE • 0.l•CS[Dc � �� (92 C4 m l 1 l e-St v AREA �- nt .cc prw�. I ; U 1 y fiL'1. Le. 7.axz 48- �o � 9 - !d • 8-0 1 II e Sq. >=T, r.] o- Ma65. A .0 N s�. Fr SQ. Fr. o O O o -_ T T"— J,sx ABLE S�hc� Fermi , 3,G C[ba �af.ts .-aeT s...clx u� am son (,W,> g"T Ta Sc 4C� xa a 4.¢lksc� �E Vl5ED 6/11Ag ENCLOSURE (4) M.C.A.. INS7 1996 E-dition 04709.2 MONROE COUNTY, FLORIDA Request For Waiver of Insurance Requirements It is requested that the insurance requirements, as specified in the County`s Schedule of Insurance Requirements, be waived or modified on the following contract. Contractor: Contract for: r V FEti3 A) A_ t) 5S �� �% �%1 _� "� fi uC f Zz ► Address or Contractor: Phone: Scope of Work: Reason for Waiver: Policies Waiver will apply to: Signature of Contractor: L� V— V10 t3" £ tit c�J s•%t�. c � � r]-z� l t• _ —T t- ]Approved r Not Approved _ f Risk Management Date ?5 I S7 County Administrator appeal: Approved: Not Approved: Date: -- Board of County Commissioners appeal: Approved: _ �t Meeting Date: Administration Instruction 114709.2 Not Approved: 102 MONROE COUNTY, FLORIDA ETHICS CLAUSE _..,f} t.-J�JRR.f►ti►c� a warrants that he/it has not employed, retained or otherwise had act on he/its behalf any former County officer or employee subject to the prohibition of Section 2 of Ordinance No. 10-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 10-1990. For breach or violation of this provision the County may, in its discretion, terminate this contract without liability and may also, in its discretion, deduct from the contract or purchase price, or otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the former County officer or employee. /7/%/� /--) / Date STATE OF 1:�L04t'DA COUNTY OF li9dI d6e \z tsignarurel L,.,- 1 q- I 7J PERSONALLY APPEARED BEFORE ME, the undersigned authority, who, after first being sworn by me affixed his/her signature (name of individual signing) in the space provided above on this l7 day of 19(1 NOTARY PUBLIC My Commission expires o� Y °&0 1wd:ine Gnagtr y� rotary Public, State of Florida c 4 Comm,ssion No. CC 596129 a OF FX- my Comnti3:•iva r'su. 10/27/2000 s 8oeid� ,Iluough FI3.1:V::•, �?� sce& IIondny Cu CCC<CC(C�CCCCCC<CCCCCr"' '�tr,CCCCC<CC(CC(CC s OR161NAL NON -COLLUSION AFFIDAVIT I, A of the city of LJe�, according to law on my oath, and under penalty of perjury, depose and say that; 7) I am 4 J •uLL" , the bidder making the AJ- Proposal for the ^-oject described as follows: Z) The prices in this bid have been arrived at independently without collusion, consultation, communication or agreement for the purpose of restricting competition, as to any matter relating to such prices with any other bidder or with any competitor; 3) Unless otherwise required by law, the prices which have been quoted in this bid have not been knowingly disclosed by the bidder and will not knowingly be disclosed by the bidder prior to bid opening, directly or indirectly, to any other bidder or to any competitor; and d) No attempt has been made or will be made by the bidder to induce any other person, partnership or corporation to'submit, or not to submit, a bid for the purpose of restricting competition; 5) The statements contained in this affidavit are true and correct, and made with full knowledge that Monroe County relies upon the truth of the statements contained in this affidavit in awarding contracts for said projec n. STATE OF bXz- 6ct (Sign re f Bidder) rr COUNTY OF 1 AA I.. _ -•-r DATE -- PERSONALLY A771EARED BEFORE ME, the undersigned authority, ,Cti L -T - fli Rt� { NUIl0 who, after first being sworn by me, (name of individual signing) affixed his/her signature in the space provided above on this day of=5� f7?23 —Z2 My commission expires: ac(TARY PUBLIC U OMB - MCP FORM 01 ORIGINAL DRUG -FREE WORKPLACE FORM The undersigned vendor in accordance with Florida Statute 287.087 hereby certifies that: LbE&5 .-LN. dtbLP (Name of Business) 1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition. 2. inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug -free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. 3. Give each employee engaged in providing the commodities or contractual services that are under bid a copy of the statement specified in subsection (1). 4. In the statement specified in subsection (1), notify the employees that, as a condition of working on the commodities or contractual services that are under bid, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of Chapter 893 (Florida Statutes) or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. 5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, or any employee who is so convicted. 6. Make a. good faith effort to continue to maintain a drug -free workplace through implementation of this section. As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements. 1 B-'rider's Signature Q .a' Date ORIGINAL AC-080-- CERTIFICATE OF LIABILITY INSURANCECSR KC DATE(HIM1DD" CONCH-6 08/28/98 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION The Johnsons Insurance Agency ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 13361 Overseas Highway ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, Marathon FL 33050 COMPANIES AFFORDING COVERAGE LINDA HOT S PhaneNo. 305-289-0213 Fax No. COMPANY A Nova Casualty Company INSURED COMPANY S Conch Cruisers Inc COMPANY Cba Salvatores Sul Mare Mr. Sal Parrinello C 1000 Atlantic Blvd Key West FL 33040 COMPANY D COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE GEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INOICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION Oi' 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 COiIDMiONC OF SUCH POLIC:ZS. ' !FIB oI 101'r:4 bV.Y'.::;1= DCEk RrDDC`»D CY PA?G CLA��iS. LTR TYPE OF INSURANCE POLICY NUMBER EFFECTIVE DATE (MWDDIYY) POLICYLICY DATE (EMI MDDIYY)N LIMITS GENERAL LIABILITY GENERAL AGGREGATE S 1 000 000 1 X COMMERCIAL GENERAL LIABILITY M80827199 08/28/98 08/28/99 PRODUCTS - COMPIOPAGO $ 1 000 000 CLAIMS MADE ❑X OCCUR PER36NALSADVINJURY $ �, 000 OOO EACH OCCURRENCE ' $ 1 , 000 , 000 OWNER'S R CONTRACTOR'S PROT FIRE DAMAGE (Any one fire) $ 50,000 MED EXP (Any one person) S 5,000 AUTOMOBILE LIABILITY ANY AUTO COMBINED SINGLE LIMIT S ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per pmON $ HIRED AUTOS NOT[ -OWNED AUTOS � BODILY INJURY (Peraccidenl) $ PROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT S ANY AUTO OTHER THAN AUTO ONLY: EACH ACCIDENT $ AGGREGATE $ EXCESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM AGGREGATE $ OTHER THAN UMBRELLA FORM $ WORKERS COMPENSATION AND - EMPI.OYIiR£' UAB;LiI Y WC TATU- I OTH- 7 IT T R EL EACH ACCIDENT S THE PROPRIETOR/ INCL PARTNERSIEXECUTIVE EL DISEASE - POLICY LIMIT S EL DISEASE -EA EMPLOYEE S OFFICERSARE: EXCL OTHER DESCRIPTION OF OPERATIONSILOCATIONSNEHICLESISPEC[AL ITEMS RESTAURANT OWNER 1000 Atlaneic Blvd Key West Fl 33040 CERTIFICATE HOLDER CANCELLATION MONRO_ 6 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE I rIE Monroe County EXPIRATION DATE THEREOF. THE ISSUING COMPANY WILL ENDEAVOR TO W.IL Board of County Commis ioners Risk Management 5100 College Road 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO LWL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABI!.f[Y Key West FL 33040 OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE LINDA HOLMES tk-� ACORD 25-S (1195) - ACORD CORPORATION 1988 ��� EVIDENCE OF PROPERTY INSURANCE CSR KC DATEIMMIDDIYY, 08/27/98 THIS IS EVIDENCE THAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED, IS IN FORCE, AND CONVEYS ALL THE RIGHTS AND PRIVILEGES AFFORDED UNDER THE POLICY. PRODUCER �E , 3aC§_29g_p21�, COMPANY The Tohnsons Insurance Agency Nova Casualty Company 13361 Overseas Highway P O BOX 520953 Marathon FL 33050 Miami FL 33152-0953 LINDA HOL14ES CODE: SUB CODE: CUSTOMERIDB: CONCH-6 INSURED LOAN NUMBER POLICY NUMBER Conch Cruisers Inc EFFECTIVE DATE EXPIRATION DATE CONTINUED UNTIL Mr. Sal Parrinello 08/28/98 08/213/99 1 f7 TERMINATED IF CHECKED THIS REPLACES PRIOR EVIDENCE DATED: PRQPERT! INFORMATION LOCATIONMESCRIPTION 001 1 story, CBS, Mercantile Building 1000 Atlantic Blvd occupied as a restaurant Key West FL 33040 COVERAGE€NFORMATION COVERAGEIPERILSIFORMS AMOUNT OF INSURANCE DEDUCTIBLE building improvements and betterments (Special ) 25,000 1000 Contents coverage in Restaurant (Special) 50,000 1000 Business Interruption (25W) 50,000 25% 1000 Building coverage (Special) 150,000 1000 Form Excludes Theft and Windstorm and Flood Coverages REMARKS (Including Special Condit€ons) CANCELLATION THE POLICY IS SUBJECT TO THE PREMIUMS, FORMS, AND RULES IN EFFECT FOR EACH POLICY PERIOD. SHOULD THE POLICY BE TERMINATED, THE COMPANY`VILL GIVE THE ADDITIONAL INTEREST IDENTIFIED BELOW DAYS WRITTEN NOTICE, AND WILL SEND NOTIFICATION OF ANY CHANGES TO THE POLICY THAT WOULD AFFECT THAT INTEREST, IN ACCORDANCE WITH THE POLICY PROVISIONS OR AS REQUIRED BY LAW. ADDITIONAL INTEREST NAME AND ADDRESS MORTGAGEE X ADDITIONAL INSURED LOSS PAYEE MONROE COUNTY BOARD OF LOAN COUNTY COMMISSIONSIRS 5100 COLLEGE RD AUTHORIZE.`. REPRESENTATIVE *fey Went FL 33040 I / LINDA HOLMES ACORD 27 (3/93) " ACORD CORPORATION 1993