Resolution 002-1981
RESOLUTION NO. 2 - 1981
RESOLUTION AUTHORIZING THE CHAIRMAN OF THE
BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA TO EXECUTE AN AGREEMENT BY
AND BETWEEN THE BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA, AND H. YALE FLEER
d/b/a "THE DRIFTWOOD ON THE BEACH".
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, as follows:
That the Chairman of the Board of County Commissioners of
Monroe County, Florida, is hereby authorized to execute an
A9,"reement by and between the Board of County Commissioners of
Monroe County, Florida and H. Yale Fleer d/b/a "The Driftwood
on the Beach" , copy of same attached hereto, for the purpose
of operating and maintaining a lunch stand and bath house at
the Clarence S. Higgs Memorial Beach.
Passed and adopted by the Board of County Commissioners
of Monroe County, Florida, at a regular meeting held on the
13th day of January, 1981.
By
COUNTY COMMISSIONERS
COUNTY, F?^.tJ 4/Cc J!
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(SEAL)
Attest:
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AGREEMENT
TIrfS-;..AGREEMENT, Made and entered into this 24th, day of
December , A.D. 19~, by and between the COUNTY OF
MONROE, STATE OF FLORIDA, a political subdivision of the State of
Florida, hereinafter called "County", and H. YALE FLEER d/b/a
"The Driftwood on the Beach", of the County of Monroe and State
of Florida, hereinafter called "Operator",
WITNESSETH:
That the parties hereto, for the considerations hereinafter
mentioned, c~~enant and agree as follows:
1. Tl:e County hereby grants to the Operator the exclusive
right and privilege of operating and maintaining a lunch stand for
the purpose of preparing and selling lunches, sandwiches, soft
drinks, ice cream, candy and such other confectionery articles, and
the exc Ius i ve right and pr i vilege 0 f operating and m.a in ta ining a
bath house containing lockers, showers and toilet facilities at the
Clarence S. Higgs Memorial Beach (formerly MonrGe County Beach),
Key West, FlGrida, for the term December 24, 1980, through
December 23,.1984, said lunch stand and bath house to be located
in the concrete building now situated upon said beach and known
as the "pavilion".
2. In addition to the above referred to rights and prIVI-
leges, the Operator shall have the exlusive right to furnish such
beach equipment as chairs, umbrellas, pads and bathing recreational
gear for the use of the public at said beach.
3. Nothing contained In paragraphs 1 and 2 above, or any-
where else "hereunder, shall be construed as preventing the public
from using the picnic and recreational facilities for such pur-
poses as provided for them on said beach.
4. -The' Operator, in consideration of the foregoing rights
and privileges, does hereby covenant to and with the County to pay
a rental of $~,SOO.OO per quarter (3 months), in the following
manner:
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Page 1 Gf 6 Pages
The first quarter and last quarter's rent due hereunder shall
be payable in advance, on the 24th day of December, A.D. 1980, and
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each and every other quarterly rent due hereunder thereafter shall
be paya'ble iri advance on the 24th day of every third month. In
addition to the foregoing rental payments, the Operator covenants
and agrees with the County to pay State Tax, and all other charges
including but not limited to sewer, garbage, electric and water
incurred at Said beach pavilion, as a result of the operation
of the foregoing facilities at said pavilion.
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5. Th~.Operator further covenants and agrees:
(a) To keep open said lunch stand and bath house daily,
including hdlidays and Sundays, from 10:00 A.M. until 10:00 P.M.
(b) To maintain a price level of items and services
offered for sale at the prevailing price level of items and ser-
vices sold in Key West and not to sell any beer, wine or liquors
at said concession.
(c) To secure, at his own expense, from an approved In-
surance company and furnish to the County eviderce of such
insurance, the following described Insurance coverage:
Coverage which will protect the ~egal liability of
the County an~ Operator to payoff claims for personal injury or
death resulting therefrom, on account of accident of Operator,
third parties, or the public, which might arise out of or in con-
nection with the conduct of Operator's business on the premises,
or which might arise out of or In connection with any act or acts
of Operator's agents, invitees or employees. The minimum limits
of such po~icy or policies shall be $100,000.00 for anyone person,
or $300,000.00 for more than one person, ari~ing out of one acci-
.
dent.
Such policy or policies shall carry an endorsement stating
that in any suit or action by Operator's servants, agents or em-
p10yees, brought against the County, which might arise out of, or
.'
in connection with the carrying out of the operations and the con-
duct of the business by the Operator on said premises, such servants
agents or em~loyees shall be considered members of the public.
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Page 2 of 6 Pages
Cd) To furnish the necessary equipment, furnishings and
fixtures needed to operate the aforesaid lunch stand and bath house
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facilities in said pavilion. All movable equipment and furnishings
shall remain the property of said Operator and may be removed from
the premises by said Operator at the termination of this Agreement.
If Operator fails to remove said movable equipment or furnishings
within five (5) days after termination of this lease, said items
shall become ~the property of the County.
6. It is hereby covenanted, stipulated and agreed by and
between the ~arties hereto that there shall, during the said
demised term,' be no mechanic's liens upon the beach pavilion or
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improvements. which may at any time be put upon or be upon said
demised property by the Operator and that in case of any such
mechanic's liens the Operator must payoff the same; and that if
default ln payment thereof shall continue for 30 days after written
notice, said County shall have the right and privile~e, at its
option, to payoff the same or any portion of the same, and the
amount so paid, including expenses, shall, at the option of the
.
said County, be so much additional rent due from said Operator at
.
the next rent due after such payment, with interest thereon at
the rate of 18% per annum.
7. It is expressly covenanted between the parties hereto
that the Operator will not use, suffer nor permit any person to
use ln 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 pur-
pose or use in violation of the laws of the United States, or of
the State of ~lorida, or of the ordinances of. The City of Key West,
or Monroe County, Florida, and that the Operator will keep and
save the County forever harmless from any penalty or damage or
charges imposed for any violation of any of said laws, whether
occasioned by neglect of Operator, and that said Operator will
indemnify an~ save and keep harmless the County against and from
any loss, co~t, damage and expense arising out of any accident
Page 3 of 6 Pages
or othei occurrence, causIng InjUry to any person or property
whomsoever o~ whatsoever, and due directly or indirectly to the
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use of the premises, or any part thereof, by the Operator.
8. . Th~ Operator shall not have the right to sell, assign or
transfer this Agreement, or to sell, assign or transfer any in-
terest in said Agreement to any other persons.
9. It is further agreed that In no case shall the County
herein be liable, under any express or implied covenants in this
Agreement, for any damages whatsoever to the Operator beyond the
. . ~'.,
rent reserve~'by this Agreement accruing, for the act, or breach
.
of covenant, for which damages may be sought to be recovered against
said County; and that in the event said Operator shall be ousted
from the possession of said property by reason of any defect in the
title of said County or said County's authority to make this Agree-
ment, said Operator shall not be required to pay any rent under
this Agreement while he is so deprived of the possession of said
property; and that said County shall not incur any liability by
such ouster.
10. And it IS further covenanted and agreed by and between
the parties hereto that in case, at any time, default shall be made
by the Operator in the payment of any rent herein provided for
upon the day the same becomes due and payable, such failure shall
bea default of this Agreement. The County may, at its option,
immediately or at any time thereafter enter into and upon the
premises hereby leased or any part thereof and in the name of the
whole, and repossess the same of County's former estate, and expel
Operator and those claiming by, through or under it, and remove
its effects, 'forcibly if necessary, without being deemed guilty
.
of trespass and without prejudice or any remedy which otherwise
might be used for arrears of rent or preceding breach of covenant;
on the re-e~try aforesaid, this Agreement shall terminate. Further,
if Operator fails to perform any of the other covenants of this
Agreement and such default shall continue for fifteen (15) days
after notice'~hereof is given In writing by the County, or failure
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P.age 4 of 6 Pages
to correct any violation shall continue for fifteen (15) days
after not ice t:hereof is given in wr i t ing by the County, or its
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agents or atto~neys to said Operator, the County may, at its
option, Iorthwith declare this Agreement forfeited, and may imme-
diately re-enter and repossess said leased property, and any of
the rents prepaid hereunder shall be forfeited by the Operator,
and In no way shall affect the collection of any other damages
which may be due the County as a result of any of said defaults.
11. It is further mutually covenanted and agreed between the
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parties hereto..tha't no waiver of a breach of any of the covenants
'f
of this Agreement shall be construed to be a waIver of any succeed-
Ing breach oE the same covenant.
12. It is fully understood and agreed by and between the
parties hereto that it is a condition of this Agreement that it
shall not terminate upon the death of the Operator, but said Agree-
ment shall keep in full force and effect at the election of the
heir or heirs of said Operator.
13. The Operator 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 be promulgated and enforced by the County at said beach.
14. The Operator shall have the right of first refusal for
an additional three (3) year period should the County wish to
engage an Operator to operate the facilities. The Operator shall
within ninety (90) days prior to the termination of this Agreement
advise the County of his desire to continue for an additional
three (3) year period. The County shall, within forty-five (45)
days, advise ~he Operator of its desire to continue and the terms.
The Operator shall accept the terms proposed within five (5) days
and failure to ~ccept shall void this right of first refusal.
15. The County reserves the right hereunder to enter upon
the premises at any time for the purpose of inspecting said premises,
and the Operator hereby agrees to keep the premises at all times
in a clean and sanitary condition, and not to maintain or keep
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upon said premlses any properties or equipment not used in connec-
tion with the' operation of said business, unless authorized by the
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County so to'do.
16.' . The. Operator agrees not to make any major alterations
to the building located on said premises, without first obtaining
written consent of the County so to do.
IN WITNESS WHEREOF, the parties hereto have caused these
presents to be executed as of the day and year first above written.
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ONROE, ST~O:tJORIDA
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B,)a rd of Coun
of tvIonr,oe County,-
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(Seal)
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Signed, Seal~d and Delivered
in Our Presence:
, ~-~'i y
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- As the Operat r
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the Beach"
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page 6 of 6 Pages