2017-79 License Agreement with Custom Golf Fitting ServicesRESOLUTION 2017-79
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA, ACCEPTING THE PROPOSAL
SUBMITTED BY TOUR FIT GOLF LABS, LLC TO PROVIDE CUSTOM
GOLF FITTING SERVICES AND SALES AT THE NORTH PALM BEACH
COUNTRY CLUB DRIVING RANGE AND AUTHORIZING THE MAYOR
AND VILLAGE CLERK TO EXECUTE A LICENSE AGREEMENT RELATING
TO SUCH SERVICES; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Village issued a Request for Proposals for Custom Golf Fitting Services
("RFP") and received only one proposal from Tour Fit Golf Labs, LLC; and
WHEREAS, Village Administration is recommending that the Village accept the proposal submitted
by Tour Fit Golf Labs, LLC and execute a License Agreement whereby Tour Fit Golf Labs, LLC
would pay the Village a monthly fee to occupy space at the Country Club Driving Range to
perform custom golf club fitting services and sales in accordance with the terms and conditions
set forth therein; and
WHEREAS, the Village Council determines that the acceptance of the proposal submitted by
Tour Fit Golf Labs, LLC and the execution of the License Agreement is in the best interests of
the residents and citizens of the Village of North Palm Beach.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE
OF NORTH PALM BEACH, FLORIDA as follows:
Section 1. The foregoing recitals are ratified as true and incorporated herein.
Section 2. The Village Council of the Village of North Palm Beach, Florida, hereby accepts
the proposal submitted by Tour Fit Golf Labs, LLC to perform custom golf fitting services at the
North Palm Beach Country Club and authorizes the Mayor and Village Clerk to execute a
License Agreement with Tour Fit Golf Labs, LLC, a copy of which is attached hereto and
incorporated herein by reference.
Section 3. This Resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED THIS 28TH DAY OF SEPTEMBER, 2017.
(Vil "age' Seal)
ATTEST:
VILLAGE CLERK
L, 0 C Q'A'
MAYOR
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made and entered into this ,�2F'I-h day of
__, 2017 by and between the VILLAGE OF NORTH PALM BEACH, a
Flo da municipal corporation, 501 U.S. Highway One, North Palm Beach, FL 33408, hereinafter
referred to as "VILLAGE", and TOUR FIT GOLF LABS, LLC, A Florida limited liability
company, 9115 Galleria Court, Suite 105, Naples, FL 34109, hereinafter referred to as
"LICENSEE."
WITNESSETH:
WHEREAS, the VILLAGE is the owner of the North Palm Country Club ("Country
Club"), located at 951 U.S. Highway One, North Palm Beach, Florida; and
WHEREAS, LICENSEE wishes to occupy space at the Country Club Driving Range for
the purpose of performing golf club fitting services and sales; and
WHEREAS, the VILLAGE wishes to grant LICENSEE a license to perform such
services and sales at the Country Club Driving Range in accordance with the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits and promises set forth
herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by both parties, the VILLAGE and LICENSEE agree as follows:
1. GRANT OF LICENSE.
A. The VILLAGE hereby grants to LICENSEE a nonexclusive license to utilize
space at the Country Club Driving Range, as more particularly described in Section 2 below, for
the purpose of fitting and selling custom golf clubs ("Licensed Services").
B. During the term of this License Agreement, the VILLAGE shall not grant a
similar License to any other independent provider of golf club fitting services, provided,
however, that nothing contained herein shall prevent the VILLAGE, through its employees
and/or contractors, from providing such services directly to Country Club members and guests.
2. SCOPE OF LICENSE.
A. The VILLAGE shall allow LICENSEE to occupy one (1) hitting station at the
Country Club Driving Range and an adjacent area measuring approximately ten feet by ten feet
(10' x 10') in size ("Licensed Area") for the purpose of providing golf club fittings and sales.
The precise location of the Licensed Area shall be designated by the VILLAGE, and LICENSEE
shall secure prior written approval from the VILLAGE prior to either altering or erecting any
structure, temporary or otherwise, in the Licensed Area.
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B. When not in use, LICENSEE shall store all of its equipment in a vehicle, and the
VILLAGE shall allow this vehicle to be parked in reasonably close proximity to the Licensed
Area in an area designated by the VILLAGE.
C. LICENSEE may utilize the Licensed Area during normal operating hours
established by the VILLAGE and shall determine the precise hours during which the Licensed
Services will be performed and the appropriate level of staffing. In no event shall LICENSEE
have more than three (3) employees, agents or representatives occupying the Licensed Area at
any given time.
3. TERM OF THE LICENSE.
The initial term of the License granted herein shall be from October 1, 2017 through
September 30, 2018 ("License Term") and shall automatically renew for additional periods of
one year through September 2022, unless either party provides the other party with ninety (90)
days' written notice of its intent not to renew prior to the expiration of the initial term or any
renewal term.
4. PAYMENT.
A. As consideration for the grant of the License by the VILLAGE, LICENSEE shall
pay to the VILLAGE the sum of $1,550.00 per month, plus all applicable taxes, payable in
advance of each month during the License Term ("License Payment"). Commencing October 1,
2018, the License Payment shall increase to $1,650.00, plus all applicable taxes. Commencing
October 1, 2019, the License Payment shall increase to $1,700.00, plus all applicable taxes.
Commencing October 1, 2020, the License Payment shall increase to $1,750.00, plus all
applicable taxes. Commencing October 1, 2021, the License Payment shall increase to
$1,800.00, plus all applicable taxes.
B. License Payments shall be due prior to the first (lst) day of each month,
commencing October 1, 2017.
C. The License Payment shall cover the use of the VILLAGE's facilities, range balls
and utilities.
5. OBLIGATIONS OF VILLAGE.
A. During the License Term, the VILLAGE shall allow LICENSEE to market the
Licensed Premises on its website, in print materials and in customer mailings and shall allow
LICENSEE to place a marketing brochure in its Golf Pro Shop.
B. The VILLAGE shall pay all costs of operating and maintaining the Licensed
Area, including the cost of ball retrieval for the Driving Range, repairs, utilities, parking,
landscaping and real property taxes unrelated to the Licensed Services performed pursuant to this
Agreement.
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C. To the extent permitted by the VILLAGE Code of Ordinances, the VILLAGE
shall allow LICENSEE to install, at its sole cost and expense, one (1) directional sign on the
Country Club grounds. LICENSEE shall obtain the VILLAGE's approval of the sign's design
and location prior to installation.
D. The VILLAGE shall provide parking for LICENSEE's employees, agents and
representatives, in addition to its customers and guests, within designated parking areas at the
Country Club.
E. The VILLAGE shall supply electricity to the Licensed Area.
6. OBLIGATIONS OF LICENSEE.
A. LICENSEE is solely responsible for all activities performed within the Licensed
Area, including, but not limited to, staffing and payment to its employees, agents and
representatives. LICENSEE shall further be solely responsible for all taxes incurred by virtue of
its performance of the Licensed Services.
B. LICENSEE shall secure all permits, licenses and approvals required by federal,
state and local laws applicable to the performance of the Licensed Services, including, but not
limited to, a VILLAGE Business Tax Receipt.
C. LICENSEE shall not directly solicit Country Club members or guests while on
VILLAGE property, nor shall LICENSEE solicit Country Club members by telephone, mail or
electronic mail without the express prior written consent of the VILLAGE.
D. To the extent possible, LICENSEE shall perform the Licensed Services by
appointment only and shall notify its customers in advance of the location of the Licensed Area.
E. LICENSEE shall use standard and reasonably prudent practices in performing the
Licensed Services pursuant to this Agreement.
F. LICENSEE's employees, agents and representatives shall comply with all
VILLAGE requirements governing conduct, safety and security while on VILLAGE -owned
property.
7. ADMINISTRATION.
LICENSEE shall occupy the Licensed Premises and perform the Licensed Services under
the general direction of the Village Manager and the Director of Golf. The Director of Golf shall
act as the VILLAGE's representative during the term of this Agreement, and LICENSEE shall
abide by all directives given by the Director of Golf.
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8. INDEPENDENT CONTRACTOR.
The VILLAGE and LICENSEE agree and acknowledge that LICENSEE is and shall be
during the performance of the Licensed Services pursuant to this Agreement, an independent
contractor and shall not, under any circumstances, be considered an employee, agent or servant
of the VILLAGE. No employment relationship is created by virtue of this Agreement.
9. INSURANCE
A. During the term of this Agreement, LICENSEE shall maintain the following
insurance policies written by an insurance company authorized to do business in Florida:
1. General Liability. General Liability Insurance with each occurrence limits of not
less than Five Hundred Thousand Dollars ($500,000) and not less than One Million
Dollars ($1,000,000) in the aggregate. All policies must include sexual and physical
abuse liability coverage.
2. Worker's Compensation. Worker's Compensation Insurance in accordance with
statutory requirements and Employer's Liability Insurance with limits of not less than
One Hundred Thousand Dollars ($100,000) for each accident and not less than Five
Hundred Thousand Dollars ($500,000) in the aggregate.
3. Hired and Non -Hired Vehicles. Hired and Non -Hired Vehicle Insurance with
limits of not less than Five Hundred. Thousand Dollars ($500,000) per incident.
B. Deductible amounts shall not exceed five percent (5%) of the total amount of
required insurance in each category.
C. LICENSEE shall furnish the VILLAGE certificates of insurance which shall
include a provision that policy cancellation, non -renewal, or reduction of coverage shall not be
effective until at least thirty (30) days' written notice has been made to the VILLAGE.
LICENSEE shall include the VILLAGE as an additional insured on the General Liability and the
Automobile Insurance Policies required by this Agreement. The above insurance requirements
may be waived by the Village Manager, in the Manager's sole discretion.
D. LICENSEE shall not commence work under this Agreement until all insurance
required as stated herein has been obtained, and such insurance has been approved (or waived)
by the Village Manager.
10. INDEMNITY AND HOLD HARMLESS.
A. To the fullest extent permitted by applicable laws and regulations, LICENSEE
shall indemnify and save harmless and defend the VILLAGE, its officials, agents, servants, and
employees from and against any and all claims, liabilities, losses, and/or causes of action arising
out of or in any way related to the Licensed Services performed by LICENSEE pursuant to this
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Agreement, including, but not limited to, those caused by or arising out of any act, omission,
negligence or default of LICENSEE and/or its employees, agents or representatives.
B. LICENSEE shall not be required to indemnify the VILLAGE, its officials, agents,
servants and employees when the occurrence results solely from the wrongful acts or omissions
of the VILLAGE, its officials, agents, servants or employees.
C. Nothing contained in this Agreement shall create a contractual relationship with
or a cause of action in favor of a third party against either the VILLAGE or LICENSEE, nor
shall this Agreement be construed a waiver of sovereign immunity beyond the waiver provided
in Section 768.28, Florida Statutes.
11. TERMINATION OF AGREEMENT.
A. This Agreement may be terminated by the VILLAGE or LICENSEE with or
without cause upon thirty (3 0) days' written notice to the other party.
B. The VILLAGE may terminate this Agreement with cause immediately. For the
purpose of this section, "with cause" shall include: (1) any material breach of this Agreement by
LICENSEE; and (2) any inappropriate behavior by LICENSEE's employees, agents or
representatives, while on VILLAGE property, including, but not limited to, harassment or violent
or threatening behavior.
12. ANTI -DISCRIMINATION.
LICENSEE warrants and represents that all of its employees, agents and representatives
are treated equally during employment without regard to race, color, religion, gender, age,
national origin, disability, or any other category protected by law.
13. NOTICES.
Any notice, request, demand, approval, consent or other communication which the
VILLAGE or LICENSEE may be required or permitted to give to the other party shall be in
writing and shall be mailed by certified mail, return receipt requested, at the addresses specified
above. Notwithstanding the foregoing, the VILLAGE may provide notice to LICENSEE by
personal delivery to LICENSEE's employees, agents or representatives at the Licensed Area.
Notice shall be deemed given when hand delivered or not later than three (3) days after same
shall have been deposited in an official United States Post Office, postage prepaid.
14. ENFORCEMENT COSTS.
If any legal action or other proceeding is brought for the enforcement of this Agreement,
or because of an alleged dispute, breach, default or misrepresentation in connection with any
provisions of this Agreement, the successful or prevailing parry shall be entitled to recover
reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as
court awarded costs (including, without limitation, all such fees, costs and expenses incident to
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appeals), incurred in that action or proceeding, in addition to any other relief to which such party
may be entitled.
15. SURRENDER OF LICENSED AREA.
Upon the expiration or termination of this Agreement, LICENSEE shall deliver and
surrender the Licensed Area to the VILLAGE in good repair and condition, ordinary wear and
tear excepted, and shall remove all of its personal property. Should LICENSEE fail to remove
its personal property upon termination or expiration of this Agreement, said property shall
become the property of the VILLAGE.
16. GOVERNING LAW AND VENUE.
The laws of the State of Florida shall govern this Agreement. Any and all legal action
necessary to enforce this Agreement will be held in Palm Beach County, Florida.
17. WAIVER.
A waiver by either the VILLAGE or LICENSEE of any breach of this Agreement shall
not be binding upon the waiving party unless such waiver is in writing. In the event of a written
waiver, such a waiver shall not affect the waiving parry's rights with respect to any other or
further breach.
18. SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement, or the
occurrence of any event rendering any portion or provision of this Agreement void, shall in no
way affect the validity or enforceability of any other portion or provision of the Agreement.
19. ENTIRETY OF AGREEMENT.
The VILLAGE and LICENSEE agree that this Agreement sets forth the entire agreement
between the parties, and that there are no promises or understandings other than those stated
herein. This Agreement supersedes all prior agreements, contracts, proposals, representations,
negotiations, letters, or other communications between VILLAGE and LICENSEE, whether
written or oral.
20. MODIFICATION
None of the provisions, terms, or conditions contained in this Agreement may be added
to, modified, superseded, or otherwise altered, except by written instrument executed by the
parties hereto.
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21. SUCCESSORS AND ASSIGNS.
The VILLAGE and LICENSEE each binds itself and its partners, successors, assigns, and
legal representatives to the other party to this Agreement and to its partners, successors,
executors, administrators, assigns, and legal representatives. LICENSEE shall not assign this
Agreement without the express written approval of VILLAGE via executed amendment.
22. PREPARATION.
This Agreement shall not be construed more strongly against either party regardless of
who was more responsible for its preparation.
23. SURVIVABILITY.
Any provision of this Agreement which is of a continuing nature or imposes an obligation
which extends beyond the term of this Agreement shall survive its expiration or earlier
termination.
24. INSPECTOR GENERAL.
LICENSEE is aware that the Inspector General of Palm Beach County has the authority to
investigate and audit matters relating to the negotiation and performance of this Agreement, and
in furtherance thereof, may demand and obtain records and testimony from LICENSEE and its
subcontractors. LICENSEE understands and agrees that in addition to all other remedies and
consequences provided by law, the failure of LICENSEE or its subcontractors to fully cooperate
with the Inspector General when requested may be deemed by the VILLAGE to be a material
breach of the Agreement justifying termination.
25. PUBLIC RECORDS.
IF THE LICENSEE HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE LICENSEE'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT
THE CUSTODIAN OF PUBLIC RECORDS AT: (561) 841-3355;
NPBCLERK@VILLAGE-NPB.ORG; OR 501 U.S. HIGHWAY ONE, NORTH
PALM BEACH, FL 33408.
In performing services pursuant to this Contract, LICENSEE shall comply with all relevant
provisions of Chapter 119, Florida Statutes. As required by Section 119.070 1, Florida Statutes,
LICENSEE shall:
1. Keep and maintain public requires required by the VILLAGE to perform the service.
2. Upon request from the VILLAGE's custodian of public records, provide the VILLAGE
with a copy the requested records or allow the records to be inspected or copied within a
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reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida
Statutes, or as otherwise provided by law.
3. Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the
duration of the Contract term and following completion of the Contract if the LICENSEE
does not transfer the records to the VILLAGE.
4. Upon completion of the Contract, transfer, at no cost, to the VILLAGE all public records
in possession of LICENSEE or keep and maintain public records required by the
VILLAGE to perform the services. If LICENSEE transfers all public records to the
VILLAGE upon completion of the Contract, LICENSEE shall destroy any duplicate
public records that are exempt or confidential and exempt from public records disclosure
requirements. If LICENSEE keeps and maintains public records upon completion of the
Contract, LICENSEE shall meet all applicable requirements for retaining public records.
All records stored electronically must be provided to the VILLAGE, upon request from
the VILLAGE's custodian of public records, in a format that is compatible with the
information technology systems of the VILLAGE.
IN WITNESS WHEREOF, the parties have executed this License Agreement as of the
date first above written.
VILLAGE:
VILLAGE OF NORTH PALM BEACH, a
Florida municipal corporation
By: /6. (i r 0,j,
15ARRYL,e AUBREY, MAYOA
(VILLAGE, SEAL)
ATTEST:
By: _ et,
Z?2�—
VILLAGE CLERK
APPROVED AS TO FORM AND LEGAL
SUFFICIENCY:
By:
VILLAGE ATTORNEY
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LICENSEE:
TOUR FIT GOLF LABS, LLC, a Florida limited
Gab...
Witnesses:
zzl,/ — By:
Print Name: 10.tx1-Jn W 1
Print Name:
Title: M p^A&1A ,r
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