REVOCABLE LICENSE AGREEMENTREVOCABLE LICENSE AGREEMENT
THIS LICENSE AGREEMENT, entered into this a�O day of �c��- ,
2012, befinreen the CITY OF CLEARWATER, FLORIDA, a Florida municipal
corporation, whose address is Post Office Box 4748, Clearwater, Florida 33758-4748,
("Licensor"), and SK8 OF MIND, INC., a Florida corporation, whose address is 1426 S.
Martin Luther King Jr., Avenue, Clearwater, FL 33756 ("Licensee").
WITNESSETH:
WHEREAS, the City is the owner of Ross Norton Recreation & Aquatics
Complex ("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 provide space within the Skate Park as a pro
shop for Skate Park participants and for Skate Park programming activities, 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 grant a revocable, non-exclusive license to the
Licensee, to enter upon and occupy an area within the Recreation Center, within which
to conduct its activities ("License Area"). The License Area shall be determined by the
Licensor in its sole discretion and may be changed from time to time as the Licensor's
use of the Complex dictates. This License is not coupled with an interest and thereby
does not create any property interest in the Licensee.
The Term of this License shall be for three (3) years; which Term will commence
on the first day of July, 2012, ("Effective Date") and shall continue until midnight on the
30th day of June, 2015 ("Termination Date"). The Parties, by mutual written
agreement, shall have the option to renew this License for two (2) additional three (3)
year periods, 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 agreement befinreen authorized representatives, or delegated
representatives of the Parties at least ninety (90) days prior to the expiration of the
Term. As to the Licensor, the Director of Parks and Recreation shall be considered an
authorized representative.
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 ten percent (10%) 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, 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.
Page 2 of 12
5. 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.
6. 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.
7. MAINTENANCE, REPAIR AND TAXES.
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.
8. 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.
9. 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
Page 3 of 12
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.
10. NON-DISCRIMINATION.
Nofinrithstanding 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.
11. 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. Licensor may deny assignment
in its sole discretion.
12. 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
Page 4 of 12
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.
13. RISK OF LOSS.
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.
14. 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
Page 5 of 12
shall likewise exist for the purpose of removing placards, signs, fixtures, alterations or
additions, which do not conform to this agreement.
15. 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.
16. INSURANCE.
The Licensee shall, at its own cost and expense, acquire and maintain (and
cause contractors and subcontractors to acquire and maintain) during the term with the
City, sufficient insurance to adequately protect the respective interest of the parties.
Coverage shall be obtained with a carrier having an AM Best Rating of A-VII or better.
Specifically the Licensee must carry the following minimum types and amounts of
insurance on an occurrence basis or in the case of coverage that cannot be obtained
on an occurrence basis, then coverage can be obtained on a claims-made basis with a
minimum three (3) year tail following the termination or expiration of this Agreement:
a. Commercial General Liabilitv Insurance including but not limited to, premises
operations, products/completed operations, products liability, contractual liability,
independent contractors, personal injury and advertising injury, at $1,000,000 per
occurrence and $1,000,000 general aggregate and $1,000,000 products/completed
operation aggregate.
b. Commercial Automobile Liabilitv Insurance for any owned, non-owned, hired
or borrowed automobile is required in the minimum amount of $1,000,000 combined
single limit.
c. Statutorv Workers' Compensation Insurance and Emplover's Liabilitv
Insurance in the minimum amount of $100,000 each employee each accident,
$100,000 each employee by disease and $500,000 aggregate by disease with benefits
afforded under the laws of the State of Florida. Coverage should include Voluntary
Compensation and U.S. Longshoremen's and Harbor Worker's Act coverage where
Page 6 of 12
applicable. Coverage must be applicable to employees, contractors, and
subcontractors, if any.
d. If the Licensee is using its own property or the property of City in connection
with the performance of its obligations under this Agreement, then Property Insurance
on an "All Risks" basis with replacement cost coverage for property and equipment in
the care, custody and control of others is required.
The above insurance limits may be achieved by a combination of primary and
umbrella/excess liability policies.
Other Insurance Provisions:
1. The City is to be specifically included as an "Additional insured" on the
Commercial Liability Insurance, and Commercial Auto Liability Insurance policies listed
above and named as a"Loss Payee" on Licensee's Property Insurance policy.
Coverage shall contain no special limitations on the scope of protection afforded to the
City, it's officials, employees, agents or volunteers.
2. Prior to the execution of this Agreement (and seven {7} days prior to the start
of work under this Agreement) then annually upon the anniversary date(s) of the
insurance policy's renewal date(s), the Licensee will furnish the City with a Certificate of
Insurance evidencing the coverages set forth above and naming the City as an
"Additional Insured" on the Licensee's Commercial General Liability Insurance and
Commercial Auto Liability Insurance policies listed above and as a"Loss Payee" on the
Licensee's Property Insurance policy. In addition, Licensee will provide the City with
certified copies of all applicable policies when requested in writing from the City. The
address where such certificates and certified policies shall be sent or delivered is as
follows:
City of Clearwater
Attn: Administrative Support Manager
Parks and Recreation Department
P.O. Box 4748
Clearwater, FL 33758-4748
3. Licensee shall provide thirty (30) days written notice of any cancellation, non-
renewal, termination, material change or reduction in coverage.
4. Licensee's insurance as outlined above shall be primary and non-contributory
coverage for Licensee's negligence.
5. Licensee shall defend, indemnify, save and hold the City harmless from any
and all claims, suits, judgments and liability for death, personal injury, bodily injury, or
property damage arising directly or indirectly including legal fees, court costs, or other
legal expenses.
Page 7 of 12
The stipulated limits of coverage above shall not be construed as a limitation of
any potential liability to the City, and failure to request evidence of this insurance shall
not be construed as a waiver of Licensee's obligation to provide the insurance coverage
specified.
17. DESTRUCTION OF PREMISES.
In the event that the License Premises should be partially or totally destroyed by
any cause, the Licensor reserves the right to revoke this License in its entirety or to the
extent so determined by the Licensor in its sole discretion.
18. 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 Licensee. The Licensee further agrees to
execute any instrument of subordination which might be required by mortgagee of the
Licensor.
19. 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 thirty (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
Page 8 of 12
and is not in the best interest of the people of Clearwater, or if the premises is needed
for another municipal purpose, as determined by the City Council at a duly organized
public meeting.
20. 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 befinreen 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 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.
21. 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
Page 9 of 12
Licensor of any and all of the other covenants and conditions contained in this License
to be performed by the Licensee.
22. 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.
23. 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) 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. This indemnification provision
shall survive termination or expiration of this Agreement.
24. SEVERANCE.
The invalidity or unenforceability of any portion of this License shall in nowise
affect the remaining provisions and portions hereof.
25. 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.
Page 10 of 12
�
26. 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.
27. 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 Sk8 of Mind, Inc., 1426 S. Martin Luther King Jr.
Avenue, Clearwater, Florida 33756
28. 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.
29. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
Page 11 of 12
� ' ti
AS TO LICENSEE:
SK8 OF MIND, INC.
�
AS TO LICENSOR:
CITY OF CLEARWATER, FLORIDA
Countersigned:
— �4��,t ^ Cr C�R.�OS
George N. Cretekos, Mayor
Approved as to form:
i/l� �
Laura Lipowski Mahony
Assistant City Attorney
By: r � . �
William B. Horne II, City Manager
Atte�t:
��ah� �`'�
Rosemarie Call, City C
Page 12 of 12
v� `�. `�� � ,
— ,a
� --- �
� �,-- -�o�