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CM-2017-1436 - 7/14/2017Wmm THIS AGREEMENT (the "Agreement") is executed effective as of date of signing (the "Effective Date") by and between FLAG FOO'T'BALL WORLD CHAMPIONSHIP TOUR, INC., 209 Traihvood Drive, Allen, TX 75002, and the CITY OF ROUND ROCK, TEXAS (the "City/Hast'), a Texas home -rule municipality having offices at 221 East Main Street, Round Rock, Texas 78664, regarding City/Host's desire to become an "Official Host Partner" of the FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR (the "event") in Round Rock, Texas, on or about November 18 through November 19, 2017, to be held at the Old Settlers Park Multipurpose Field Complex ("Multipurpose Complex") owned and operated by the City/Host and located at 3300 Palm Valley Boulevard, Round Rock, Texas 78664. NOW, THEREFORE, in consideration of the premises herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. and City/Host agree as follows: 1. Desi nation and Ri hts as Official Host Partner (a) City/Host shall be designated as an "Official Host Partner" for the event. (b) FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. has the right to secure its own sponsors or sponsorships for the event. (c) City/Host acknowledges that FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. has granted and/or may grant to other National Corporate Sponsors, National Partners, or Licensees the use of the FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC.'s Marks (defined herein as FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC.'s trademarks, trade names, service marks and logos) in the promotion of FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC.'s goods or services. Said licensing and merchandising relationships shall be on a local, regional, and national basis. (d) FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. and City/Host acknowledge that each recognizes the value of inherent attributes of the goodwill associated with each other's respective trademarks, trade names, service marks and logos. FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. and City/Host shall not apply for and shall not obtain any state or federal service mark or trademark registration or any foreign service mark or trademark that incorporates or uses the trademark, trade name, service mark or logo of the other without the prior express written consent of the other. 2. FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC.'s Rights and Responsibilities (a) FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. shall have the right to receive and retain, in accordance with conditions recited herein, all team entry fees from the event. (b) FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. shall obtain and maintain in full force and affect a general liability insurance policy covering the event, and said insurance policy shall fulfill all requirements of the City of Round Rock, Texas as to amount and coverage. A copy of such insurance certificate shall be provided to City/Host in advance of the event. FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. shall, upon the direction of City/Host, include City and designated sponsors as additional insureds on such insurance policy at no additional cost or charge to City/Host. (c) FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC., at its own expense, shall have the sole responsibility for establishing, organizing, and operating the event. 3. Fees and Costs As consideration for the rights and benefits granted herein, and provided that FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. is in compliance with all terms of this Agreement, City/Host shall pay to FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. the following: (a) Rights Fee of Twelve Thousand Six Hundred TwentyFive and No/100 Dollars (S12,625.00). Such rights fee shall assist in covering FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC.'s event costs, specifically venue rental costs as set forth herein. The rights fee of $12,625.00 shall be due and payable by City/Host to FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. upon cxccution of this Agreement and shall be used by FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. as follows: (i) Upon receipt of the rights fee from City/Host, FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. shall use the rights fee to pay the deposit amount required by the venue to secure the venue for the Event. In the event the deposit has already been paid by FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. prior to the execution of this Agreement, the rights fee shall be used toward the remaining costs of the venue rental. 2 (ii) In the event FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. pays the deposit for the venue rental and there are remaining monies available from the rights fee, those remaining monies shall be used towards the remaining costs of the venue rental. (iii) Within fifteen (15) days of the execution date of this Agreement, FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. shall provide City/1-lost (attn: Nancy Yawn, Director of Round Rock CVB) verification that the deposit for the venue has been paid. Verification that the venue costs have been paid in full shall be provided to the City/Host (attn: Nancy Yawn, Director of Round Rock CVB) within three (3) days of full payment of the venue rental. (iv) Failure to provide verification to City/Host as required in subsection (iii) above shall be considered a material breach of this Agreement and City/Host shall at its sole discretion Seek any and all remedies available under Texas Law. (b) Other Costs City/Host shall be responsible for the costs associated with the premiums or other expenses related to City/Host's on-site promotions. City/Host shall also be responsible for costs associated with the production of City/Host's own promotional materials to be distributed on-site. City/Host shall endeavor to ensure that all City/Host advertising and promotion complies with all applicable laws, rules and regulations. 4. Terms Subject to the recited terms and provisions of this Agreement, the term of this Agreement shall commence immediately upon the execution hereof by both parties and shall end by operation of its own terms after completion of the event on November 19, 2017. 5. Representations and Warranties Each party hereto represents and warrants to the other party as follows: (a) It has the full right and legal authority to enter into and fully perform this Agreement in accordance with the terns and conditions hereof. (b) This Agreement, when executed, will be its legal, valid and binding obligation enforceable against it in accordance with the terms and conditions hereof, except to the extent that enforcement hereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally. (c) The execution, delivery and performance of this Agreement does not and will not violate or cause a breach of any other agreements or obligations to which it is a party or by which it is bound, and no approval or other action by any governmental authority or agency, or any other individual or entity, is required in connection herewith. (d) Each of the foregoing representations, warranties and covenants shall be true at all times during the term hereof. 6. Use and QwnershiI2 of Marks FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. and City/Host hereby agrees to use the Marks of the other only as set forth herein and only for the purposes of advertising, marketing and promoting the event and related events and goods as set forth in this Agreement. Each party shall retain ownership of its respective Marks. Use of the Marks under this Agreement shall be for the benefit of the respective Mark owner. The parties acknowledge that the rights granted by each party under this Agreement possess a special, unique and extraordinary character that make difficult the assessment of monetary damage that would be sustained by such party as a result of any unauthorized use of any FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. Mark or City/Host Mark. Accordingly, in the event of any unauthorized use of any FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. Mark or City/Host Mark by the other party (or a party authorized by such other party), each party shall, in addition to any outer contractual, legal and equitable rights and remedies as may be available to it, have, during the term hereof and after the termination or expiration of this Agreement, the right to take such reasonable steps as are necessary to prevent any further unauthorized use of any such event Mark or City/Host Mark, without being required to prove damages or furnish a bond or other security, including petitioning a court of competent jurisdiction for a temporary restraining order, a preliminary or permanent injunction, and/or a decree for specific performance. 7. No Joint Venture This Agreement does not constitute and shall not be constructed as constituting a partnership, employer-employcc, or joint venture between or among FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. or City/Host. FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. is an independent contractor and is not City/Host's employee. Neither party shall have any right whatsoever to obligate or bind the other party in any manner whatsoever, except as expressly set forth herein. Neither party has authority to enter into contracts or relationships or to perform acts as agent for the other party. 4 S. Assip-nment This Agreement shall be binding on the parties and their respective successors and assigns. Notwithstanding the preceding sentence, neither party may assign this Agreement without the prior written consent of the other party. 9. Notice Whenever notice is required to be given by either party to the other under this Agreement, it shall be sent by certified U.S. mail with receipt confirmed to the following: To FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC.: Travis Burnett Co-Foundcr 209 Trailwood Drive Allen, TX 75002 To City/Host: Laurie Hadley City Manager City of Round Rock 221 East Main Street Round Rock, Texas 78664 Each party shall have the obligation to notify the other of any change in address for these notice purposes. 10. Termination and Cancellation (a) If the other party materially defaults in the performance of this Agreement, and if such default is not cured within thirty (30) days following written notice of such default to the defaulting party, then and in that event either party hereto may terminate this Agreement without prejudice to any le6ral or equitable rights to which such terminating party may be entitled, and such termination shall be effective upon delivering notice to the other party of such termination. (b) City/Host may terminate this Agreement, in whole or in part, for convenience and without cause, at any time upon ninety (90) days' written notice to the other party. Prior to proceeding with a termination for cause, City/Host agree to use all reasonable efforts to resolve any and all issues with FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. and shall provide FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. a reasonable amount of time to remedy the issues to avoid a termination for cause. (c) Termination of this Agreement for any reason provided herein shall not relieve either party from its obligation to perform up to the effective date of such termination or to perform such obligations as may survive termination. (d) In the event of termination of this Agreement for any reason and/or the cancellation of the event, the parties acknowledge that City/Host would only be required to pay a prorata portion of its Rights Fee based on those benefits actually determined by City/Host to have been provided to City/Host by FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. prior to termination or cancellation. In the event that City/Host has, as of the effective date of termination or cancellation, paid FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. more of the Rights Fee than required by this section and this Agreement, then and in that event FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. shall be obligated to promptly refund the full difference to City/Host. 11. Indernnit;cation To the extent allowed by law, City/Host hereby agree to hold harmless FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC., and its affiliates and subsidiaries, and the agents, representatives, officers, directors, employees and shareholders of the foregoing, from and against any and all claims, suits, demands, damages, causes of action, expenses and liabilities of any kind or character (including reasonable attorneys' fees and costs) related to or arising out of, whether directly or indirectly, (i) City/Host's intentional or negligent actions or omissions under this Agreement, including but not limited to trademark infringements based upon FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC.'s use of the City/Host Marks as approved in accordance with this Agreement, contests, sweepstakes or other activities conducted by City/host pursuant to this Agreement, and any product demonstrations or products distributed by City/Host pursuant to this Agreement and (ii) any breach of this Agreement by City/Host. To the extent allowed by law, FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. hereby agree to hold harmless City/Host, and its affiliates and subsidiaries, and the agents, representatives, officers, directors, employees and shareholders of the foregoing, from and against any and all claims, suits, demands, damages, causes of action, expenses and liabilities of any kind or character (including reasonable attorneys' fees and costs) related to or arising out of, whether directly or indirectly, (i) FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC.'s intentional or negligent actions or omissions under this Agreement, including but not limited to trademark infringements based upon City/Host's use of FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC.'s Marks as approved in accordance with this Agreement, contests, sweepstakes or other activities conducted by FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. pursuant to this Agreement, and any product demonstrations or products distributed by FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. pursuant to this Agreement and (ii) any breach of this Agreement by FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. Each party will promptly notify the other of any claim. The terms, provisions and conditions of this Section 12 shall survive the expiration or earlier termination of this Agreement. 12. Entire Aureement This Agreement constitutes the entire agreement between City/Host and FLAG FOOTBALL WORLD CHAMPIONSHIP TOUR, INC. with respect to the subject matter herein and shall supersede any and all other agreements, whether oral or otherwise, between the parties. Any amendments or modifications of this Agreement must be in writing and signed by authorized representatives of both parties. 13. Limitation or Liability Notwithstanding anything contained herein to the contrary, in no event shall either party be liable to the other party for any consequential, incidental, punitive, special, or indirect damages of any kind. 14. Confidentiality The parties hereto expressly acknowledge that City/Host is a Texas municipality and, as such, is subject to and will obey the Public information Act and other related statutes. Notwithstanding the foregoing, the parties hereto agree to maintain in confidence the terms and conditions of this Agreement and any other information disclosed that such disclosing party has reasonably designated as confidential except for disclosures to the parties' respective employees, agents, or representatives to the extent necessary to implement this Agreement, and except where a proposed disclosure of any specific terms or conditions hereof is authorized in advance in writing by the parties, and except for disclosures required in the course of legal proceedings arising out of this Agreement, in addition to any other remedies available, injunctive relief shall be available to any aggrieved party. This foregoing shall not apply to any information that becomes generally known through no fault of the parties bound hereunder. IS. Execution This Agreement may be executed in counterparts and shall be deemed executed and binding upon signature by both parties hereof. 16. Governine Law This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 17. Severability Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be invalid or enforceable under applicable law, such provision shall be ineffective to the extent of such uncnforceability or in invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. All obligations and rights or the parties expressed herein shall be in addition to, and not in limitation of, those provided by applicable law. 18. No Waiver No failure or delay on the part of any of the parties in the exercise of any right, power, or remedy under this Agreement shall operate as a waiver by such party thereof, nor shall exercise by any of the parties of any right, power or remedy preclude other or further exercise thereof by such party or such parry's exercise of any other right, power or remedy. No waiver or modification of this Agreement or of any provision herein, including this section, shall be valid unless it is in writing and duly executed by the party charged with it. 14. Headings The headings contained in this Agreement are for convenience only and shall not be construed as an interpretation of any of the language contained herein. 20. Survival All rights and obligations that accrue pursuant hereto prior to the expiration or termination of this Agreement, as the case may be, and the representations and warranties made in and the indemnifications provided pursuant to this Agreement shall survive the expiration or earlier termination of this Agreement. 21. Force Maievre No party hereto will be responsible for the performance of any of its obligations hereunder if Prevented, delayed or hindered by war, riots insurrection, embargoes, strikes, concealed acts of workmen, casualty, accidents, acts of terror, or any other occurrence beyond such Party's control, excluding weather. IN WITNESS WHEREOF, the parties hereby execute this Agreement on the indicated dates. FLAG FOOTBALL WORLD CHAMPIONt SHHIPTT'TOUR, INC. By: v _ Name J ,rule Title:._fi�,d4z Date: '719 j-fo +i 9 CITY O OUND ROCK, TEXAS By: Name: f Title: Date: ! 7=/1 For City, Attest: By: �Tpm�,, OLw Sara L. White, City Clerk For Ci roved as to Form: By: Stephan L. Sheets, it Attorney City of Round Rock ROUND ROCK Agenda Item Summary Agenda Number: Title: Consider authorizing a Host Partner Agreement with Flag Football World Championship Tour, Inc. for use of the Old Settlers Park Multipurpose Field Complex. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 7/14/2017 Dept Director: Chad McKenzie Cost: $12,625.00 Indexes: Attachments: LAF, Agreement Department: Sports Management and Tourism Text of Legislative File CM -2017-1436 Consider authorizing a Host Partner Agreement with Flag Football World Championship Tour, Inc. for use of the Old Settlers Park Multipurpose Field Complex. Type the body of the agenda summary here. This is where all the background information the Council needs to know should go. Please be detailed, use complete sentences, and be sure to spell check. If you are recommending any action other than approval, please put it in this body section. Do not remove the header. Cost. $12,625.00 Source of Funds: HOT Funds City of Round Rock Page f Printed on 7/44/2017