LICENSE AGREEMENT FOR A PRO SHOP IN ORDER TO PROVIDE RETAIL AND EVENT SERVICES
LICENSE AGREEMENT
THIS LICENSE AGREEMENT, entered into this L day of nl1--~ ' 2005, between
the CITY OF CLEARWATER, FLORIDA, a Florida municipal corporatio , whose address is Post
Office Box 4748, Clearwater, Florida 33758-4748, ("Licensor"), and 688 SKATESHOP INC., a
Florida corporation, whose address is 6140 Ulmerton Road, Clearwater, Florida 33760 ("Licensee").
WIT N E SSE T H:
WHEREAS, the City is the owner of Ross Norton Recreation & Aquatics Complex, located at
1426 S. Martin Luther King Jr. Ave., Clearwater, Florida, which houses the Ross Norton Extreme
Sports Park ("Skate Park" or "Park"); and,
WHEREAS, the City desires to designate a 400 square foot area/room within the Skate Park
as a pro shop for participants; and,
WHEREAS,the Licensee desires to enter into an agreement to license the space alloted for a
pro shop in order to provide retail and event services.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, and other good
and valuable consideration, the receipt of which are hereby acknowledged, the Parties agree as
follows:
1. LICENSE TERMS.
That the Licensor does hereby license to the Licensee a room within the Recreation Center,
which is approximately 400 square feet, as more particlulary described in Exhibit "A" attached hereto.
Such property shall hereinafter be referred to as the "Licensed Premises" or the "Premises."
The Term of this License shall be for 3 year(s); which Term will commence on the first day of
May, 2005, ("Effective Date") and shall continue until midnight on the 30th day of April, 2008
("Termination Date"). Licensee shall have the option to renew this License for an additional three (3)
year period, under the same terms and conditions, so long as Licensee is not in default or breach of
any provision of this License. Such renewal may be exercised only upon written notice to Licensor,
as notice is provided for herein, at least ninety (90) days prior to the expiration of the Term.
2. LICENSE FEE.
The Licensee agrees to pay and the Licensor agrees to accept as a License Fee during the
term of this License, an amount equivalent to nine percent (9%) of the Gross Revenue Proceeds
generated by the Licensee for all activities on the Licensed Premises. License Fee shall be due and
payable on the 15th of each month following the close of the Licensee's accounting books for the
previous month. For purposes of this Agreement, Gross Revenue Proceeds shall be defined as the
total amount of actual gross revenues received by Licensee, its assigns, subtenants,
concessionaires, or licensees, if applicable, for all merchandise sold, services performed,
admissions or tickets sold, lessons administered, or any other income realized from any activity
conducted by Licensee in or from the Licensed Premises; whether received as cash, other
consideration, or credit; exlcuding discounts or allowances made to customer for which no payment
has been received by Licensee; the amount of any tax payable by reason of such sales or services
under any applicable tax law, which taxes are billed as a separate item by the Licensee to the
purchaser, and for which Licensee hereby acknowledges responsibility of timely submitting to the
appropriate taxing authorities.
3. USE OF PREMISES.
The Premises are Licensed to Licensee solely for the purpose of establishing a retail pro shop.
The following uses and no other use can be made of the premises during the Term without the
written consent of the Licensor: For approved Skate Park activities, the Premises will be used to sell
retail products; provide private and group lessons (for beginners to advance skill levels); provide
rental of appropriate equipment for participants; and conduct and oversee "Extreme Tournaments",
For purposes of this License, Extreme Tournaments shall be defined as competitions involving the
permitted activities. Licensee shall secure Licensor's written approval prior to conducting classes,
programs and Extreme Tournament activities. The schedule for events must be approved by the
Center Supervisor in writing prior to the advertising or offering of such events. The Licensee agrees
that as additional consideration for this License, Licensee shall from time to time, provide free
programs to the public to promote the Skate Park.
Licensor reserves the right to prohibit the sale of retail products it deems inappropriate for the
Park.
4. ENFORCEMENT OF RULES AND REGULATIONS. Licensee acknowledges that the
Licensor will not be providing staff to oversee activites sponsored or conducted by the Licensee in
accordance with this License, therefore, Licensee shall provide, at all times, appropriate trained staff
to oversee acitivites in which Licensee promotes, sponsors or participates at the Skate Park and
ensure compliance with Skate Park Rules and Regulations. Licensee may implement rules and
regulations governing the use of the pro shop area providing such rules are not in conflict with law,
ordinances, policies or the operating rules of the City of Clearwater, the Park or this Agreement.
5. BUILD~OUT. Licensee shall provide Licensor with plans for the initial build-out of the
Licensed Premises, attached as Exhibit "B". Other then the initial improvements, Licensee shall not
make improvements or alterations to the Licensed Premsies or any other area of the Recreation
Center withour the prior written consent of the Licensor. Upon expiration or termination of the
License, all improvements shall become property of the Licensor.
6. SIGNAGE. The Licensee may, at its own expense, place an identification sign at the
Center or in the Park upon written approval of the Licensor and in accordance with the City of
Clearwater Code of Ordinances.
7. UTILITIES AND OPERATING EXPENSES.
Licensor shall pay utility costs of the Licensed Premises, including electric, water, and sewer.
Licensee shall pay all other operating costs of the Licensed Premises.
8. MAINTENANCE, REPAIR AND TAXES.
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Licensee shall, at its own expense, maintain in a clean and orderly condition, and in good and
safe condition, the Licensed Premises and all adjacent areas. Licensee agrees that it is responsible
for and will cause to be repaired at Licensee's expense any damage to the Licensed Premises as a
result of its occupancy, other than normal wear and tear.
Licensor agrees to provide lawn and landscape maintenance as well as general custodial
maintenance for all areas in the Park. Other than as required by the initial build-out by the Licensee,
Licensor will provide maintenance for all major capital components of the pro shop including air
conditioners, roof, painting, plumbing electrical, etc.
In addition, Licensee shall be responsible for all personal property taxes and sales tax as may
be assessed against the Licensed Premises during the License term, and all required taxes
necessary to Licensee's operation at the Park, and shall promptly pay same when due.
9. OBSERVANCE OF LAWS AND ORDINANCES.
Licensee agrees to observe, comply with and execute promptly at its expense during the term
hereof, all laws, rules, requirements, orders, directives, codes, ordinances and regulations of
governmental authorities and agencies and of insurance carriers which relate to its use or occupancy
of the Licensed Premises. Licensee agrees not to make or allow any unlawful, improper or offensive
use of the Premises. Further, the Licensee understands and agrees that this provision specifically
prohibits, among other acts, the sale, consumption or use of alcoholic beverages or controlled
substances anywhere in, on or around the Premises and adjacent areas.
10. SCHEDULED REPORTS OR LICENSEE ACTIVITIES.
The Licensee shall furnish the City Parks and Recreation Department, with a monthly report of
activities conducted under the provisions of this agreement within 15 days of the end of each month
and a yearly report sixty (60) days from the end of the Licensee's fiscal year. Each report is to
identify the number of clients served, the type of activities, programs offered, revenue produced,
profit and loss statements.
The Licensee agrees to submit progress reports and other information in such format and at
such times as may be prescribed by the City, and to cooperate in site visits and other on-site
monitoring (including, but not limited to, access to sites, staff, fiscal and client records, and logs and
the provision of related information).
Creation, Use, and Maintenance of Financial Records: liCensee shall create and maintain
financial and accounting records, books, documents, policies, practices, procedures and any
information necessary to reflect fully the financial activities of the Licensee. Such records shall be
available and accessible at all times for inspection, review, or audit by authorized City
representatives.
Use of Records: Licensee shall produce such reports and analyses that may be required by
the City to document the proper and prudent stewardship and use of the facilities.
Maintenance of Records: All records created hereby are to be retained and maintained for a
period of not less than five (5) years.
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11. NON-DISCRIMINATION.
Notwithstanding any other provisions of this agreement during the term of this agreement, the
Licensee for itself, agents and representatives, as part of the consideration for this agreement, does
covenant and agree that no person shall, on the grounds of race, sex, handicap, national origin,
religion, marital status or political belief, be excluded from participation in, denied the benefit(s) of, or
be otherwise discriminated against as an employee, volunteer, or client of the provider. Licensee
agrees to maintain reasonable access for handicapped persons.
Breach of Nondiscrimination Covenants: In the event of conclusive evidence of a breach of
any of the above non-discrimination covenants, the City shall have the right to terminate this
agreement immediately.
12. ASSIGNMENT OF LICENSE.
Licensee shall not, without first obtaining the written consent of Licensor, assign, or otherwise
encumber this License, in whole or in part.
13. ALTERATIONS AND IMPROVEMENTS.
The Licensee shall not make any structural alterations or modifications or improvements
which are part of the Licensed property without the written consent of the Licensor, and any such
modifications or additions to said property shall become the property of the Licensor upon the
termination of this License or, at Licensor's option, the Licensee shall restore the Licensed property
at Licensee's expense to its original condition, The restrictions of this paragraph shall not apply to
maintenance of the Licensed property, but shall apply to any change which changes the architecture
or purpose of the property or which changes any of the interior walls of the improvements or which
annexes a fixture to any part of the Licensed property which cannot be removed without damage
thereto. In the event Licensee desires to make any alterations or modifications, written notice shall
be given to the Licensor. Unless the Licensor objects to such proposals by notice to Licensee within
twenty (20) days after written notice from Licensee, the proposal shall be deemed approved.
Licensee shall have no power or authority to permit mechanics' or materialmen's liens to be placed
upon the Licensed property in connection with maintenance, alterations or modifications. Licensee
shall, within fifteen (15) days after notice from Licensor, discharge any mechanic's liens for materials
or labor claimed to have been furnished to the premises on Licensee's behalf. Not later than the last
day of the term Licensee shall, at Licensee's expense, remove all of Licensee's personal property
and those improvements made by Licensee which have not become the property of Licensor,
including trade fixtures and the like. All property remaining on the premises after the last day of the
term of this License shall be conclusively deemed abandoned and may be removed by Licensor and
Licensee shall reimburse Licensor for the cost of such removal.
14. RISK OF LOSS.
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All personal property placed or moved in the Premises shall be at the risk of the Licensee or
owner thereof, The Licensor shall not be responsible or liable to the Licensee for any loss or damage
that may be occasioned by or through the acts or omissions of persons occupying adjoining premises
or any part of the premises adjacent to or connected with the Premises hereby Licensed or any part
of the building which the Licensed Premises are a part of for any loss or damage resulting to the
Licensee or its property from bursting, stopped up or leaking water, gas, sewer or steam pipes
unless the same is due to the negligence of the Licensor, its agents, servants or employees.
15. RIGHT OF ENTRY.
The Licensor, or any of its agents, shall have the right to enter said premises during all
reasonable hours, to examine the same to make such repairs, additions or alterations as may be
deemed necessary for the safety, comfort, or preservation thereof, should Licensee default in any of
its maintenance responsibilities as heretofore provided, all costs and charges for which Licensor
shall invoice to Licensee for reimbursement within 15 days following receipt, unless such repairs,
additions or alterations are undertaken to comply with revisions to the Clearwater Code or other
governmental requirements instituted subsequent to License commencement, in which event costs
thereof shall be borne by Licensor. Licensor shall, upon reasonable notice, have right of entry to
exhibit said premises during normal business hours. Right of entry shall likewise exist for the
purpose of removing placards, signs, fixtures, alterations or additions, which do not conform to this
agreement.
16. RESTORING PREMISES TO ORIGINAL CONDITION.
Licensee represents that the premises Licensed are in good and sanitary condition for use by
Licensee. Licensee's acceptance or occupancy of the Licensed Premises shall constitute a
recognition of such condition. Licensee hereby accepts the premises in the condition they are in at
the beginning of this license and agrees to maintain said premises in the same condition, order and
repair as they are at the commencement of said term, and to return the premises to their original
condition at the expiration of the term, excepting only reasonable wear and tear arising from the use
thereof under this agreement. The Licensee agrees to compensate and reimburse said Licensor
immediately upon demand, any damage to water apparatus, or electric lights or any fixture,
appliances or appurtenances of said premises, or of the walls or the building caused by any act or
neglect of Licensee or of any person or persons in the employ or under the control of the Licensee
should Licensee fail for any reason to remedy or repair such damage immediately upon demand.
17. INSURANCE.
Licensee agrees to comply with the following terms, provisions and requirements:
A Comprehensive General Liability Insurance policy on an "occurrence" basis,
combined single-limit Bodily Injury Liability and Property Damage Liability including product liability,
covering claims for injuries to persons or damage to property which may arise from or in connection
with use of the pro shop area or other Center premises by the Licensee including all activities
occurring thereon.
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A Business Automobile Liability Policy covering claims for injuries to persons or
damage to property that arises from or in connection with use of a motor vehicle owned by the
Licensee,
Insurance procured in accordance with sections 17 (a) and (b) shall have minimum
coverage limits of $2,000,000.
Licensee shall provide the necessary workers' compensation insurance applicable to
its employees for statutory coverage limits and employer's liability.
Each insurance policy issued as a requirement of this Agreement shall name the City of
Clearwater as an additional named insured. The coverage shall contain no special limitations on the
scope of protection afforded to the City, its officials, employees, agents or volunteers.
The Licensee shall furnish the City with Certificate(s) of Insurance with all
endorsements affecting coverage required by this section. These forms shall be received and
approved by the Parks and Recreation Director before execution of this Agreement by authorized
City officials.
18. DESTRUCTION OF PREMISES.
In the event that the building should be totally destroyed by fire, earthquake or other natural
cause, to such an extent that it cannot be rebuilt or repaired within sixty (60) days after the date of
such destruction, this License shall be terminated.
In the event that the building should be partially damaged by fire, earthquake or other natural
cause, but only to such an extent that it can be rebuilt or repaired within sixty (60) days after the date
of such destruction, the License shall be void or voidable, but not terminated, except as otherwise
provided herein. If the Licensor intends to rebuild or repair the premises, he shall, within fifteen (15)
days after the date of such damage, give written notice to Licensee of the intention to rebuild or
repair and shall proceed with reasonable diligence to restore the building to substantially the same
condition in which it was immediately prior to the destruction. However, Licensor shall not be
required to rebuild, repair or replace any improvements or alterations made by Licensee within the
building. During the period of rebuilding or repairing, there shall be no diminution of License Fees. If,
after rebuilding or repairing has commenced, such rebuilding or repairing cannot be completed within
sixty (60) days after the date of such partial destruction, the Licensor may either terminate the
License or continue with the License with a proportional License Fee rebate to Licensee, If Licensor
undertakes to rebuild or repair, Licensee shall, at its own expense, restore all work required to be
done by such Licensee under this agreement.
19. SUBORDINATION.
This License and the rights of the Licensee hereunder are hereby made subject and
subordinate to all bona fide mortgages or other instruments of security now or hereafter placed upon
the said premises by the Licensor provided, however, that such mortgages and other instruments of
security will not cover the equipment and furniture or furnishings on the premises owned by the
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Licensee. The Licensee further agrees to execute any instrument of subordination which might be
required by mortgagee of the Licensor.
21. DEFAULT; REMEDIES; TERMINATION BY LICENSOR.
(a) The Licensee further covenants that, if default shall be made in the payment of License
Fee when due, or if the Licensee shall violate any of the other covenants of this License and fail to
correct such default within fifteen (15) days after a written request by the Licensor to do so, then the
Licensor may, at its option, deem this License terminated, collect all License Fees due hereunder,
and obtain possession of the Premises immediately.
(b) In case the Licensed property shall be abandoned by Licensee, Licensor may immediately
retake the Premises,
(c) The Licensor, at its option, may terminate this License as for a default upon the occurrence
of any or all of the following events: an assignment by Licensee for the benefit of creditors; or the
filing of a voluntary or involuntary petition by or against Licensee under any law for the purpose of
adjudicating Licensee bankrupt; or for reorganization, dissolution, or arrangement on account of or to
prevent bankruptcy or insolvency; or the appointment of a receiver of the assets of Licensee; or the
bankruptcy of the Licensee. Each of the foregoing events shall constitute a default by Licensee and
breach of this License.
(d) The Licensor, at its option, may terminate this License at any time by giving thrity (30)
days prior written notice to Licensee, or any of its agents or its attorney, for any other good and valid
reason might detract from the City of Clearwater and is not in the best interest of the people of
Clearwater.
22. MISCELLANEOUS.
(a) The Licensor shall have the unrestricted right of assigning this License at any time, and in
the event of such assignment, the Licensor shall be relieved of all liabilities hereunder.
(b) This contract shall bind the Licensor and its assigns or successors, and the Licensee and
assigns (as permitted) and successors of the Licensee.
(c) It is understood and agreed between the parties hereto that time is of the essence of this
contract and this applies to all terms and conditions contained herein.
(d) The rights of the Licensor under the foregoing shall be cumulative, and failure on the part
of the Licensor to exercise promptly any rights given hereunder shall not operate to forfeit any of the
said rights.
(e) It is understood that no representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some future writing signed by the
party making such representations or promises.
(f) It is hereby agreed that if any installment of License Fee or any other sum due from
Licensee is not received by Licensor within five (5) days after such amount shall be due, Licensee
Page 7 of 11
shall pay to Licensor a late charge equal to five percent (5%) of such overdue amount. The Licensor
shall not be required to accept any License Fee not paid within five (5) days subsequent of the date
when due absent the simultaneous payment of this late charge. The requirement for a late charge
set out herein shall not be construed to create a curative period or a grace period for the timely
payment of License Fee.
(g) Publicizing of City Support: Licensee agrees to utilize every reasonable opportunity to
publicize the pro shop and association with the City. Licensee further agrees to supply the City, up
to three copies of any publication developed in connection with implementation of programs
addressed by this Agreement. Such publications will state that the City supports the program and
retail shop.
23. SUBROGATION.
The Licensor and Licensee do agree that each will cause its policies of insurance for fire and
extended coverage to be so endorsed as to waive any rights of subrogation which would be
otherwise available to the insurance carriers, by reason of any loss or damage to the Licensed
property or property of Licensor, Each party shall look first to any insurance in its favor before
making any claim against the other party. Nothing contained herein shall in any way be considered
or construed as a waiver by the Licensor of any and all of the other covenants and conditions
contained in this License to be performed by the licensee.
24. ESTOPPEL LETTER.
In the event Licensor shall obtain a loan from an institutional lender, and if the following shall
be a requirement of such loan, the Licensee agrees to execute an estoppel letter in favor of the
lender verifying the standing of the License, the terms thereof, and all amounts paid thereunder and
such other matters as may be reasonably requested.
25. INDEMNIFICATION.
The Licensee shall act as an independent contractor and agrees to assume all risks of
providing the program activities and services herein agreed and all liability therefore, and shall
defend and indemnify the Licensor, its officers, agents, and employees from and against all liabilities,
expenses, losses and damages of whatever nature, to persons or property arising out of or related to
the Licensed Premises or Licensee's use or occupancy thereof, or those resulting from the use or
occupation by any approved or unapproved invitee, contractor, subcontractor, or other person
approved, authorized, permitted by the Licensee in or about the Premises, to include but not being
limited to (a) failure by the Licensee, or its agents, to perform any provision, term, covenant or
agreement required to be performed by the Licensee under this agreement; (b) any occurrence,
injury or personal or property damage which shall happen in or about the Licensed property or
appurtenances resulting from the condition, maintenance, construction on or of the operation of the
Licensed property; (c) failure to comply with any requirements of any governmental authority or
insurance company insuring the Licensed property or its contents; (d) any security agreement,
conditional bill of sale or chattel mortgage or mechanic's lien connected with Licensee, its obligations
or operations, filed against the Licensed property, fixtures, equipment or personalty therein; and (e)
Page 8 of 11
any construction, work, alterations or improvements by Licensee on the Licensed property. Such
indemnification shall include reasonable attorney's fees for all proceedings, trials and appeals.
26. SEVERANCE.
The invalidity or unenforceability of any portion of this License shall in nowise affect the
remaining provisions and portions hereof.
Page 9 of 11
27. CAPTIONS.
The paragraph captions used throughout this License are for the purpose of reference only
and are not to be considered in the construction of this License or in the interpretation of the rights or
Obligations of the parties hereto.
28. NO HAZARDOUS MATERIALS,
The Licensee herewith covenants and agrees that no hazardous materials, hazardous waste,
or other hazardous substances will be used, handled, stored or otherwise placed upon the property
or, in the alternative, that such materials, wastes or substances may be located on the property, only
upon the prior written consent of the Licensor hereunder, and only in strict accord and compliance
with any and all applicable state and federal laws and ordinances. In the event such materials are
utilized, handled, stored or otherwise placed upon the property, Licensee expressly herewith agrees
to indemnify and hold Licensor harmless from any and all costs incurred by Licensor or damages as
may be assessed against Licensor in connection with or otherwise relating to said hazardous
materials, wastes or substances at anytime, without regard to the term of this License. This
provision shall specifically survive the termination hereof.
28. NOTICE. Any notice required or permitted to be given by the provisions of this
agreement shall be conclusively deemed to have been received by a party hereto on the date it is
hand-delivered to such party at the address indicated below (or at such other address as such party
shall specify to the other party in writing), or if sent by registered or certified mail (postage prepaid),
on the fifth (5th) business day after the day on which such notice is mailed and properly addressed.
1. If to Licensor, addressed to Parks and Recreation Director, P.O Box 4748, Clearwater, FL
33758. With copy to: City Attorney, P.O. Box 4748, Clearwater, FL 33758.
2. If to Licensee, addressed to Jay Turner, 688 Skatepark Incorporated, 6140 Ulmerton Road
Clearwater, Florida 33760
29. ATTORNEY'S FEES.
In the event it shall be necessary for either party to this Agreement to bring suit or
commence arbitration to enforce any provisions hereof or for damages on account of any
breach of this Agreement, the prevailing party, shall be entitled to recover from the other
party, damages and other relief granted and all costs and expenses of such suit or
arbitration and a reasonable attorney's fee as set by the court or arbitrator.
30. GOVERNING LAW.
The laws of the State of Florida shall govern this Contract, any any action brought by either
party shall lie in Pinellas County, Florida,
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set
forth above.
AS TO LICENSEE:
688 SKATE PARK, INC.
RE: Ross Norton Skate Park
1426 S. Martin Luther King Jr. Ave,
AS TO LICENSOR:
CITY OF CLEARWATER, FLORIDA
Countersigned:
~ ~
~?;:'
Fra , Hibbard, Mayor
BY:~~. ~J:r
William B. Horne II, City Manager
Approved as to form:
Attest:
Laura Lipo ski, Assistant City Attorney
Page 11 of 11
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688 Skateshop Layout
Slat Wall Display Purpose
Shelving Displays
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Counter
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Exhibit "B"
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Glass Display Case
Shelving or Glass cases for Merchandise 4 ft tall
Glass Display Case
Slat Wall Skateboards and decks
Slat Wall _
Counter with
Swinging door
Shelving for equipment Rental 4 ftTall
- All Walls Noted stating Slat wall will Start 48" up from Foundation and continue to ceiling