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RESOLUTION NO. R 04- I ~:>'~
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING
THE EXECUTION OF THE LICENSE AGREEMENT
BETWEEN THE CITY OF BOYNTON BEACH AND
JAZZERCISE, INC.; AND PROVDING AN EFFECTIVE
DATE.
WHEREAS, upon recommendation of staff, the City Commission has determined that
it is in the best interests of the residents of the City to execute a License Agreement with
Jazzercise, Inc. to institute a monthly rental fee for the use of the Civic Center Auditorium
md Hester Center Gymnasium to conduct weekly Jazzercise classes.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
being true and correct and are hereby made a specific part of this Resolution upon adoption
hereof.
Section 2. The City Commission of the City of Boynton Beach, Florida does
hereby authorizing execution of the License Agreement with Jazzercise, Inc. is attached
hereto as Exhibit "A".
PASSED AND ADOPTED this ~ ~ day of September, 2004.
CITY OF BOYNTON BEACH, FLORIDA
/~ayor ~7 ~Y
' 'mmlss
LICENSE AGREEMENT
THIS LICENSE AGREEMENT, ("Agreement"), made this
of~, 2004, by and between:
THE CITY OF BOYNTON BEACH, FLORIDA, a municipal corporation
organized and existing under the laws of the State of Florida, hereinafter referred
to as "CITY"
__day
and
JAZZERCISE, INC., a Florida corporation, with a business address of
, hereinafter referred to as "LICENSEE".
1. DESCRIPTION OF THE PREMISES
CITY hereby grants to LICENSEE the right, license, and privilege of occupying and maintaining
certain CITY owned premises and improvements located at the locations as more particularly
described in Exhibit "A" attached hereto and by this reference made a part hereof (hereinafter
referred to as the "Premises" or "Property"), subject to the terms and conditions set forth in this
Agreement.
2. LICENSE FEES, CLASS FEES, and PAYMENT
2.1 LICENSEE shall pay CITY Eight Hundred Fifty and 00/100 ($850.00) dollars at
the time of execution of this Agreement.
2.2 LICENSEE agrees to pay CITY thirty percent (30%) of the total revenue received
by LICENSEE for each Junior Jazzercise and Teen Jazzercise class held between the
months of October 1, 2004 and April 30, 2005.
2.3 CITY shall provide LICENSEE with thirty (30) days notice if the CITY intends to
cancel or re-schedule a class.
2.4 LICENSEE shall pay CITY Twenty Five and 00/100 ($25.00) dollars on hour to
cover cost of staffing on CITY holidays in the event a class is held on the following days:
New Year's Day, Martin Luther King Day, President's Day, Memorial Day, Independence
Day, Labor Day, Veteran's Day, Thanksgiving Day, the day after Thanksgiving Day,
Christmas Eve Day, and Christmas Day. The payment is required as the facilities would
normally not open on those days.
2.5 Any fees charged by LICENSEE must be approved by CITY.
2.6 No later than the tenth (10th) day of the month, LICENSEE shall deliver to CITY
an itemized statement showing all funds received during the preceding calendar month.
Attached to the statement shall be the applicable payment due to CITY.
Page 1 of 9
3. TERM
This Agreement shall commence on October 1, 2004 and terminate April 30, 2005, unless
terminated prior to said date as provided for herein below, and shall be renewable thereafter upon
mutual consent of the parties.
4. USE OF PREMISES
4.1 LICENSEE shall use and occupy the Premises only for Jazzercise Classes, and
not used for any other purpose xvhatsoever without the written consent of the CITY.
LICENSEE covenants that he will not, without written consent of the CITY, permit the
Premises to be used or occupied by any other person, firm, entity or corporation other
than LICENSEE or its agents. LICENSEE further covenants that no nuisance or
hazardous trade or occupation shall be permitted and nothing shall be kept in or about
said Premises which xvill increase the risk of any hazard, fire or catastrophe, and no
waste shall be permitted or committed upon or any damage done to said Premises.
LICENSEE shall not permit the licensed Premises to be used or occupied in any manner
which will violate any laxvs or regulations of any governmental authority.
4.2 CITY will maintain control of class schedules, class enrollment size, and the
times of the use of the facility by LICENSEE.
4.3 CITY shall provide a stage or portable platform to elevate the instructor for the
class to see. CITY shall provide a location for LICENSEE to store any equipment used
for the classes at the CITY facility; however, CITY shall not be responsible for any loss
of equipment or damage to equipment stored at the CITY facility.
4.4 Any signs, advertising, brochures, or pamphlets to be displayed in CITY facilities
must be approved by CITY.
4.5 LICENSEE shall submit to CITY monthly attendance reports which shall indicate
attendee resident/non-resident information. If class registration reaches the maximum
enrollment number as established by CITY, then CITY residents shall have priority in
filling the available class spaces.
4.6 LICENSEE shall schedule classes according to the following schedule:
Class Day Time
Civic Center:
Junior Jazzercise M
Teen Jazzercise M
Jazzercise M,W,F,Sa
Tuesday
3:30 p.m.
4:30 p.m.
9:00 a.m. and 6:00 p.m.
Ezell Hester: Jazzercise
T,Th
9:00 a.m.
Page 2 of 9
4.7 Each of the above classes is for one-hour, and LICENSEE may not hold any
classes other than those listed above without the prior approval of the CITY. Folloxving
the completion of the class, LICENSEE shall not remain on premises to conduct any
other activities, but shall leave the premises as soon as possible following the completion
of the class.
5. ASSIGNMENT
LICENSEE shall have no authority to assign any portion of the Premises during the Term of this
Agreement. Should LICENSEE attempt to assign this license, then the license shall be
terminated forthwith without prior notice to LICENSEE.
6. DAMAGE TO PREMISES
LICENSEE agrees that all personal property, inventory, or stock placed on the Premises shall
remain the property of LICENSEE, and shall be placed on the Premises at the risk of
LICENSEE. LICENSEE shall give the CITY prompt written notice of any occurrence, loss,
incident or accident occurring on the licensed Premises.
7. INSPECTIONS
CITY, its agents, or authorized employees may enter upon the Premises at all reasonable times
and hours, to examine same to determine if LICENSEE is properly maintaining the Premises
according to this Agreement.
8. INDEMNIFICATION
LICENSEE acknowledges that any personal property placed on the Premises is at LICENSEE's
sole risk. LICENSEE shall indemnify and save harmless and defend the CITY, its trustees,
elected and appointed officials, agents, servants and employees from and against any claim,
demand or cause of action of whatsoever kind or nature arising out of error, omission, or
negligent act of LICENSEE, its agents, servants or employees in the use of the Premises, for all
costs, losses and expenses, including but not limited to, damages to persons or property,
judgments and attorneys' fees arising out of or in connection with the uses or operations
permitted under this Agreement.
The parties recognize that various provisions of this Agreement, including but not necessarily
limited to this Section, provide for indemnification by the LICENSEE and requires a specific
consideration be given therefor. The parties therefore agree that the sum of Ten Dollars and
00/100 ($10.00), receipt of which is hereby acknowledged, is the specific consideration for such
indemnities, and the providing of such indemnities is deemed to be part of the specifications with
respect to the services to be provided by LICENSEE. Furthermore, the parties understand and
agree that the covenants and representations relating to this indemnification provision shall serve
the term of this Agreement and continue in full force and effect as to the party's responsibility to
indemnify.
Page 3 of 9
9. INSURANCE
LICENSEE shall provide, pay for, and maintain in force, at all times during the term of this
Agreement the kinds and types of insurance as are listed on Exhibit "B". Submission of proof
of insurance coverage shall be submitted to the City's Risk Manger at the time of execution of
this Agreement. Failure to submit proof of continuing coverage, when requested by the City's
Risk Manager shall constitute grounds for immediate termination of this agreement.
10. MAINTENANCE OF LICENSED PREMISES AND UTILITIES
CITY agrees to provide janitorial services and electricity to the Premises at no additional cost.
LICENSEE shall be responsible for providing and paying for all costs associated with telephone
and facsimile equipment and any other utility costs and expenses associated with equipment
placed on the Premises by LICENSEE. The LICENSEE agrees to maintain the Premises and all
personal property placed thereon in accordance with the terms and conditions of this Agreement
and consistent with prudent and well-reasoned maintenance procedures and techniques.
11. AMENDMENTS
It is agreed that no modifications, amendment or alteration in the terms or conditions contained
herein shall be effective unless contained in a written document executed with the same
formality and of equal dignity herewith.
12. SURRENDER UPON TERMINATION
Upon the conclusion of the term, or upon termination of this Agreement, LICENSEE agrees to
peaceably surrender and deliver the premises to the CITY in substantially the same condition as
it was delivered to LICENSEE at the beginning of this Agreement, ordinary wear and tear
excluded.
Furthermore, LICENSEE agrees to remove from the Premises at their expense, any personal
property or inventory placed therein. Upon completion of removal the condition of the Premises
shall be safe and not a hazard.
13. WAIVER
Failure of the CITY to insist upon strict performance of any covenant or condition of this
Agreement, or to execute any right herein contained, shall not be construed as a waiver or
relinquishment for the future of any such covenant, condition or right, but the same shall remain
in full force and effect.
14. TERMINATION
This Agreement may be terminated by either party during the term hereof upon sixty (60)
calendar days written notice to the other of its desire to terminate this Agreement.
Page 4 of 9
15. INDEPENDENT CONTRACTOR
This Agreement does not create an employee/employer relationship between the parties. It is the
intent of the parties that the LICENSEE is an independent contractor under this Agreement and
not the CITY's employee for all purposes, including but not limited to, the application of the Fair
Labor Standards Act minimum wage and overtime payments, Federal Insurance Contribution
Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal
Revenue Code, the State Workers Compensation Act, and the State unemployment insurance
law. The LICENSEE shall retain sole and absolute discretion in the judgment of the manner and
means of carrying out LICENSEE's activities and responsibilities hereunder. The LICENSEE
agrees that it is a separate and independent enterprise from the CITY, that it has full opportunity
to find other business, that it make its own investment in its business, and that it will utilize a
high level of skill necessary to perform the work. This Agreement shall not be construed as
creating any joint employment relationship between the LICENSEE and the CITY and the CITY
will not be liable for any obligation incurred by LICENSEE, including but not limited to unpaid
minimum xvages and/or overtime premiums.
16. NOTICES
Whenever any party desires to give notice unto any other party, it must be given by written
notice, sent by registered United States mail, with return receipt requested, hand delivery or
facsimile transmission with receipt of delivery, addressed to the party for whom it is intended
and the remaining party, at the places last specified, and the places for giving of notice shall
remain such until they shall have been changed by written notice in compliance with the
provisions of this section. Notice shall be deemed to have been given upon receipt. For the
present, the LICENSEE and the CITY designate the following as the respective places for giving
of notice:
CITY:
City of Boynton Beach
P.O. Box 310
Boynton Beach, FL 33425
Attention: City Manager
Copy To:
LICENSEE:
James A. Cherof, City Attorney
Goren, Cherof, Doody & Ezrol, P.A,
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Telephone No. (954) 771-4500
Facsimile No. (954) 771-4923
Page 5 of 9
17. BINDING AUTHORITY
Each person signing this Agreement on behalf of either party individually warrants that he or she
has full legal power to execute this Agreement on behalf of the party for xvhom he or she is
signing, and to bind and obligate such party with respect to all provisions contained in this
Agreement.
18. LAWS AND ORDINANCES
LICENSEE shall observe all laws and ordinances of the CITY, county, state, federal or other
public agencies directly relating to the operations being conducted on the Premises.
19. SEVERABILITY
If any provision of this Agreement or application thereof to any person or situation shall to any
extent, be held invalid or unenforceable, the remainder of this Agreement, and the application of
such provisions to persons or situations other than those as to which it shall have been held
invalid or unenforceable shall not be affected thereby, and shall continue in full force and effect,
and be enforced to the fullest extent permitted by la~v.
20. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Florida with venue lying in Palm
Beach County, Florida.
21. ENTIRE AGREEMENT
This Agreement represents the entire and integrated agreement between the CITY and the
LICENSEE and supersedes all prior negotiations, representations or agreements, either written or
oral.
THE REMAINDER OF THIS PAGE
HAS INTENTIONALLY BEEN LEFT BLANK
Page 6 of 9
IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the
day and year first written above.
CITY OF BOYNTON BEACH, FLORIDA
ATTEST:
o~_.m~¥c~l~t~e t ~{y Attorney
Signed and delivered
in the presence of:
Print Name
Pfidt ~me -
STATE OF FLORIDA -
COUNTY OF PALM BEACH ·
I HEREBY CERTIFY that on this ]~- day of .~~. 2004, before me personally
appeared ~ Lt Ho i~ - ('J .~ ~ 0 F/~x~L, , [ersonally known to be the individual
who executed the for~rgoing instrument and acknowledged before that he executed the same for
the purposes therein, is
personally known to me or produced
as identification.
No(~ry Public, State o~'Florida
Print N~e: '
Co~ission No. ~~_~ ~0¢
Commission Expires:
DNT:dnt
\\JGCDE_FS\LIBRARYX1990\900182.BB\~GMT\License Agreement (Jazzercise).doc
Page 7 of 9
Cynthia L. Wilson
-"*.""-~'~ "."~'"'.; Commission #DD336041
-:-~.'~ !~ Expires: Jul 07, 2008
~ .~.. .~.'.~ ~
'",,'" Atlantic Bonding Co., h~.
EXHIBIT "A"
Facilities Covered by this License Agreement
Civic Center Auditorium
Ezell Hester Community Center Gymnasium
Page 8 of 9
EXHIBIT "B"
INSURANCE
It shall be the responsibility of the successful bidder to maintain workers'
compensation insurance, property damage, liability insurance and vehicular
liability insurance during the duration of this contract.
The successful bidder shall secure and maintain in force, throughout the duration
of this contract, comprehensive general and automobile liability insurance with a
minimum coverage of $1,000,000 per occurrence; $1,000,000 aggregate for
personal injury; $1,000,000 per occurrence/aggregate for property damage; and,
professional liability insurance in the amount of $1,000,000 (all professional
contract services).
o
Said general liability policy shall name the City of Boynton Beach as an
additional insured and shall include a provision prohibiting cancellation of said
policy except upon thirty (30) days prior written notice to the City.
The successful bidder shall secure and maintain in force throughout the duration
of this contract workers' compensation insurance to statutory limits.
o
The successful bidder shall furnish the City with a certificate of insurance after
award has been made prior to the start of any work for the City. Said insurance
companies must be authorized to do business in the State of Florida and the City
will not accept any company that has a rating less than B+ in accordance with
A.M. Best's Key Rating Guide, latest edition.
o
Reference Insurance Advisory Form (Attachment A) for additional types of
insurance and limits required. The City reserves the right to require additional
types of insurance, or to raise or lower the stated limits, based upon identified
risk.
DATE (MM/DD/YY)
CERTIFICATE OF LIABILITY INSURANCE /s/2003
PRODUCER
Johnson & Wood Insurance Services, Inc
5731 Palmer Way, Ste D
Carlsbad, CA 92008
(760) 603-0131
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS
UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER
THE CQVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE
INSURED INSURER A: ADMIRAL INSURANCE CO
Jazzercise, Inc. INSURER B:
CATHY ALBANESE 6199 INSURER C:
2460 Impala Drive INSURER D:
Carlsbad, CA 92008 INSURER E:
EEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED,
~REMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE
~AIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND
~ES. THE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
TYPE OF INSURANCE
GENERAL LIABILITY
[] CObtI~E[RC,AL GE.ERAL L~AB,L,TY
r-Ir-'] CLAIMSMADE [] OCCURRENCE
E~ INCLUDED
]PROFESSIONAL LIABILITY
GEN'L AGGREGATE LIMIT APPLIES PER:
[] POL,C~ [] .R~ECT [] LOC
POLICY NUMBER
CA000001679-11
POLICY EFFECTIVE
DATE (MM/DD/YY)
11/01/03
POLICY EXPIRATION
DATE (MM/DD/YY
11/01/04
LIMITS
EACH OCCURRENCE $ 1,000,000
FIRE DAMAGE (Any One Fire) $ 50,000
MED EXP (Any One Person)
PERSONAL & ADV INJURY $ 1,000,000
GENERAL AGGREGATE $ 2,000,000
PRODUCTS - COMP/OP AGG $ 2,000,000
AUTOMOBILE LIABILITY
]ANY AUTO
r'-'~ ALL OWNED AUTOS
---] SCHEDULED AUTOS
]HIRED AUTOS
]NON-OWNED AUTOS
GARAGE LIABILITY
[~ANY AUTO
EXCESS LIABILITY
[~] OCCUR
r~ DEDUCTIBLE
E~ RETENITION $
]CLAIMS MADE
OTHER
WORKERS' COMPENSATION
AND
EMPLOYERS' UABILITY
COMBINED SINGLE LIMIT
(Ea accident)
$
BODILY INJURY
(Per person) $
BODILY INJURY
(Per accident) $
$
PROPERTY DAMAGE
(Per accident)
AUTO ONLY- EA ACCIDENT
OTHER THAN EA ACC
AUTO ONLY: AGG
EACH OCCURRENCE
AGGREGATE
WC STATU- OTHER
TORY LIMITS
E.L. EACH ACCIDENT $
E.L. DISEASE - EA EMPLOYEE $
E.L. DISEASE - POLICY LIMIT $
DESCRIPTION OF OPERATIONSILOCATIONSIVEHICLESlRESTRICTIONSISPECIAL ITEMS
Exercise/Dance classes, incidental babysitting, Additional Insured (premise leased to the Named Insured) per attached form CG 20 l l (01/96).
*10 day notice for non-payment of premium.
CATHY ALBANESE
122 SE 34TH AVE
BOYNTON BEACH FLORIDA33436
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE
THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL *30 DAYS WRITTEN NOTICE TO THE
CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO
OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
AUTHORIZED REPRESENTATIVE ~ /~-¢,;~