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2015-70 Hot Stix Golf License AgreementRESOLUTION 2015 -70 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA APPROVING A LICENSE AGREEMENT WITH ALMENDRAL CAPITAL PARTNERS LLC D /B /A HOT STIX GOLF TO OCCUPY SPACE AT THE COUNTRY CLUB DRIVING RANGE TO PROVIDE CUSTOM GOLF CLUB FITTING SERVICES AND SALES AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE THE AGREEMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Almendral Capital Partners, LLC d /b /a Hot Stix Golf ( "HSG ") has been providing custom golf club fitting services and sales at the North Palm Beach Country Club for the past three years; and WHEREAS, Village Administration recommended execution of another License Agreement with HSG whereby HSG would pay to occupy space at the Driving Range to perform such services in accordance with the terms and conditions set forth therein; and WHEREAS, the Village Council determines that the execution of the License Agreement with HSG 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 approves the License Agreement with Almendral Capital Partners, LLC d /b /a Hot Stix Golf, a copy of which is attached hereto as Exhibit "A" and incorporated herein, and authorizes the Mayor and Village Clerk to execute the Agreement on behalf of the Village. Section 3. This Resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS 8TH DAY OF OCTOBER, 2015. (Village. Seal). ATTEST: VILLAG CLE LICENSE AGREEMENT THIS LICENSE AGREEMENT is made and entered into this day of 2015 by and between the VILLAGE OF NORTH PALM BEACH, a Florida municipal corporation, 501 U.S. Highway One, North Palm Beach, FL 33408, hereinafter referred to as "VILLAGE ", and ALMENDRAL CAPITAL PARTNERS, LLC, a Delaware Limited Liability Company, d/b /a HOT STIX GOLF, 15444 N. 76"' Street, Suite 110, Scottsdale, AZ 85260, hereinafter referred to as "HSG." 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, HSG 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 HSG 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 HSG agree as follows: 1. GRANT OF LICENSE. A. The VILLAGE hereby grants to HSG 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 HSG 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 HSG shall secure prior written approval from the VILLAGE prior to either altering or erecting any structure, temporary or otherwise, in the Licensed Area. Page 1 of 8 B. When not in use, HSG 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. HSG 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 HSG have more than three (3) employees, agents or representatives occupying the Licensed Area at any given time. 3. TERM OF THE LICENSE. The term of the License granted herein shall be from November 1, 2015 through March 31, 2016 ( "License Term "). Payments shall be due prior to the first (1st) day of each month, commencing November 1, 2015. 4. PAYMENT. A. As consideration for the grant of the License by the VILLAGE, HSG shall pay to the VILLAGE the sum of Two Thousand Seven Hundred and Eighty -One Dollars and No Cents ($2,781.00) per month, plus all applicable taxes, payable in advance of each month during the License Term ( "License Payment "). B. 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 HSG to market the Licensed Premises on its website, in print materials and in customer mailings and shall allow HSG 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. C. To the extent permitted by the VILLAGE Code of Ordinances, the VILLAGE shall allow HSG to install, at its sole cost and expense, one (1) directional sign on the Country Club grounds. HSG shall obtain the VILLAGE's approval of the sign's design and location prior to installation. D. The VILLAGE shall provide parking for HSG'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. Page 2 of 8 6. OBLIGATIONS OF HSG. A. HSG 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. HSG shall further be solely responsible for all taxes incurred by virtue of its performance of the Licensed Services. B. HSG 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. HSG shall not directly solicit Country Club members or guests while on VILLAGE property, nor shall HSG solicit Country Club members by telephone, mail or electronic mail without the express prior written consent of the VILLAGE. D. To the extent possible, HSG shall perform the Licensed Services by appointment only and shall notify its customers in advance of the location of the Licensed Area. E. HSG shall use standard and reasonably prudent practices in performing the Licensed Services pursuant to this Agreement. F. HSG's employees, agents and representatives shall comply with all VILLAGE requirements governing conduct, safety and security while on VILLAGE -owned property. 7. ADMINISTRATION. HSG 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 HSG shall abide by all directives given by the Director of Golf. 8. INDEPENDENT CONTRACTOR. The VILLAGE and HSG agree and acknowledge that HSG 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, HSG 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. Page 3 of 8 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. HSG 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. HSG 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. HSG 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, HSG 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 HSG pursuant to this Agreement, including, but not limited to, those caused by or arising out of any act, omission, negligence or default of HSG and/or its employees, agents or representatives. B. HSG 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 parry against either the VILLAGE or HSG, 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 HSG with or without cause upon thirty (30) 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 HSG; and (2) any inappropriate behavior by HSG's employees, agents or representatives, while Page 4 of 8 on VILLAGE property, including, but not limited to, harassment or violent or threatening behavior. 12. ANTI - DISCRIMINATION HSG 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 HSG 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 HSG by personal delivery to HSG'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 party 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 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, HSG 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 HSG 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 HSG 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 party's rights with respect to any other or further breach. Page 5 of 8 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 HSG 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 HSG, 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. [j 21. SUCCESSORS AND ASSIGNS. The VILLAGE and HSG 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. HSG 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. HSG 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 HSG and its subcontractors. HSG understands and agrees that in addition to all other remedies and consequences provided by law, the failure of HSG 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. Page 6 of 8 25. PUBLIC RECORDS. To the extent applicable, HSG shall comply with Chapter 119, Florida Statutes, regarding access to public records. Failure of compliance may be grounds for termination by the VILLAGE. Pursuant to Section 119.070 1, Florida Statutes, Contractor shall: A. Keep and maintain public records that ordinarily and necessarily would be required by the VILLAGE in order to perform the services. B. Provide the public with access to public records on the same terms and conditions that the VILLAGE would provide the records and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law. C. Ensure that public records that are exempt or confidential from public records disclosure requirements are not disclosed except as authorized by law. D. Meet all requirements for retaining public records and transfer, at not cost to the VILLAGE all public records in possession of the HSG upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the VILLAGE in a format that is compatible with the information technology system of the VILLAGE. IN WITNESS WHEREOF, the parties have executed this License Agreement as of the date first above written. VILLAGE: OF NORTH PALM BEACH, a By: IL ROBERT G B , Mayor (VILLAGE SEAL), ATTEST: By: GEi VILL GE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: VILLAGE ATTORNEY Page 7 of 8 Witnesses: Print Name: Print Name: HSG: ALMENDRAL CAPITAL PARTNERS, LLC, a Delaware Limited Liability Company d /b /a Hot Stix Golf By: 4nt Name: MOT A&11 Title: /% &" Page 8 of 8