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CM-2017-1488 - 10/6/2017CITY OF ROUND ROCK MULTI-PURPOSE SPORTS COMPLEX TERMS OF USE THE STATE OF TEXAS CITY OF ROUND ROCK & KNOW ALL BY THESE PRESENTS: COUNTY OF WILLIAMSON COUNTY OF TRAVIS By execution of this City of Round Rock Multi -Purpose Sports Complex ("Multi -Purpose Sports Complex") Terms of Use (the "Terms of Use") by the undersigned authorized agent of AFFL, LLC, referred to herein as "Licensee," Licensee, in consideration for Licensee being allowed to use all or a portion of the Multi -Purpose Sports Complex owned by the City of Round Rock, Texas (the "City"), Licensee agrees that the following terms, conditions and obligations apply to such use. 1.01 LICENSED PREMISES. Subject to the terms and conditions of these Terms of Use, Licensee shall be permitted to use and occupy that portion of the Multi -Purpose Sports Complex described in Exhibit "A", attached hereto and incorporated herein for all purposes, (the "Premises") on the dates and at the times as indicated in Exhibit "A" (the "Event Period") for the rental rates stated below for the following express purposes and no other purpose: Flag Football Tournament (the "Event"). The Premises may include lighted fields, common use public areas, and restrooms necessary to accommodate patrons, as may be reasonably required for use of the Premises for the Event as determined by the Sports Management & Tourism Department designee (the "SM & TD designee"). Space within the Premises may be reassigned with the mutual consent of the Licensee and the SM & TD designee. Licensee agrees that it is accepting the Premises in their existing condition, as -is, and with all faults. 2.01 RENTAL; PAYMENT A. Rental. Licensee shall pay the City of Round Rock for the use of the Premises the amount listed on Licensee's invoice(s) (the "Rental Amount"). In addition to the Rental Amount, Licensee shall pay for all additional services or equipment requested from or provided by or through the City (the "Additional Services") in accordance with the rates as may be established by the City from time to time (the "Service Amount"). Licensee shall pay an amount equal to the Rental Rate for each hour or portion thereof that the Licensee, or any other person associated with or participating in the Event, uses or occupies the Premises in connection with the Event outside of the Event Period (the "Overtime Amount"). Under no circumstances shall Licensee sublet the Premises during the Event Period. N4- 2— c /-7-/-di (J -P � B. Payment. Unless the Licensee agrees in writing to some other schedule of payment, the Rental Amount shall be paid as follows: 50% of the Rental Amount paid on the date that Licensee submits an executed copy of these Terms of Use. 50% of the Rental Amount paid 30 days before the initial portion of the Event Period. The Service Amount shall be paid at such time as Licensee requests Additional Services. In the event that Licensee requests Additional Services during the Event Period, Licensee shall pay the Service Amount reflected on any invoice sent to Licensee by the City. Following the conclusion of the Event Period, the City shall prepare an invoice reflecting charges for Additional Services, the Overtime Amount, damages, non -routine cleanup costs incurred by the City related to the Event, and any other amounts owed to the City under these Terms of Use (the "Invoice"). Licensee shall pay the amount of the Invoice within thirty (30) days of the date of the Invoice. In the event of cancellation by Licensee, the Rental Amount actually paid by Licensee is non-refundable and non -transferable and shall be retained by the City as liquidated damages. The City reserves the right to cancel field usage for weather conditions, scheduling conflicts and other unanticipated field conditions, and in such event, shall refund any Rental Amount paid by Licensee. 3.01 MOVE IN AND MOVE OUT Licensee may move in equipment, fixtures, and other property associated with the Event (the "Event Materials"). All Event Materials shall be brought into or out of the Premises only through entrances or areas designated by the SM & TD designee. Licensee shall remove all Event Materials from the Premises on or before the conclusion of the Event Period. For an Event Period occurring on two or more consecutive days, Event Materials may remain on the Premises if agreed to in writing by Licensee and SM & TD designee. Licensee agrees that City shall never be liable in any manner whatsoever for any damage to the Event Materials under any circumstances. At the conclusion of the Event Period, Licensee shall return the Premises, equipment and other property to the City in the same condition as before Licensee's use thereof. All Event Materials or other property associated with the Event that remains on the Property following the conclusion of the final portion of the Event Period shall become the property of the City. The Licensee is responsible for the collection and custody of articles left on the fields, common areas, or parking lots of the Premises by persons attending or participating in the Event. Following the Event, the Licensee may turn unclaimed articles in to the City for disposition at the City's sole discretion. 4.01 DAMAGED PROPERTY AND CLEANUP 2 The City shall provide routine cleaning of the Premises at no additional cost to Licensee. Licensee shall be responsible for all costs and reasonable expenses for any cleaning of surfaces that cannot be effectively accomplished by broom sweeping or the use of a mop or wiping cloth with a typical commercial cleanser. Licensee is also responsible for the cost to repair any and all damages to the Premises or other City property caused by Licensee or Licensee's agents, employees or subcontractors, exhibitors, customers or Event attendees or guests. Licensee shall be barred from entering into any subsequent agreement for use of the Premises, or any other City facility, unless and until Licensee has paid the City in full for any such damages or non -routine cleaning costs. 5.01 EVENT OUTLINE; SERVICES; CATERING AND CONCESSIONS A. General. At least sixty (60) days prior to the Event, Licensee shall file with the SM & TD designee a preliminary outline or agenda. At least thirty (30) days prior to the Event, Licensee shall submit a full and detailed outline of all space to be utilized, operation set-up, equipment and services required, and such other information which may be reasonably required by the City. B. Sale or Rent of Concession Items. The City reserves for itself, or its designated concessionaires or contractors, the sole right to provide all food, beverages, sponsorship rights, and related merchandise, together with the necessary space to do so. Licensee or its agents or contractors may sell items only as authorized in writing by the SM & TD designee prior to the Event. C. Personnel. The City may furnish, to the extent feasible as determined by the SM & TD designee in designee's sole discretion, as an additional reimbursable item, all necessary personnel required for Licensee's reasonable use of the Premises for the Event, including but not limited to safety personnel, athletic trainers, staff, and other general labor. D. Safety and Security. The City operates a 24 hour security surveillance system and maintains the right to monitor and record any and all areas of the Premises at all times. 6.01 ADVERTISING AND RECORDINGS A. Advertisements. Licensee shall not, without the prior written consent of the SM & TD designee, distribute or circulate, or permit to be circulated or distributed any advertising matter, programs or notices on the Premises or other City property, except Licensee may distribute matter and programs incident to the Event during the Event Period within the Premises only. Licensee may not place or use any portable signs on the exterior of the Premises or on City grounds. Licensee shall not circulate or publish or cause to be circulated or published any advertisement, tickets, placard, or other written or printed matter in which the Premises, or other City property is mentioned or referred to without first having obtained written consent from the SM & TD designee. B. Video or Audio Recordings. The Licensee may make audio and/or video record proceedings of the Event. LICENSEE SHALL INDEMNIFY AND HOLD HARMLESS THE CITY FROM ANY CLAIMS FOR FEES, ROYALTY PAYMENTS, OR OTHER COSTS ASSOCIATED WITH SUCH RECORDING WHICH MAY BE DUE TO THIRD PARTIES. 7.01 INSURANCE AND INDEMNIFICATION. A. Insurance. Licensee shall obtain and maintain throughout the Event the insurance coverages stated in this Section. At least sixty (60) days prior to the commencement of the Event, Licensee shall provide to SM & TD designee an insurance certificate acceptable to the City reflecting such insurance policies. Licensee shall not cause or permit any insurance policy to lapse or be cancelled prior to or during the Event. Licensee shall pay all premiums, deductibles and self-insured retentions, if any, stated in the policies. The City, its officials, employees and agents shall be named as additional insureds on all coverages required by this Section. Licensee shall obtain and maintain the following insurance coverages: (1) Commercial general liability insurance with a minimum combined single limit of $1,000,000 per occurrence and a minimum $1,000,000 aggregate including products and completed operations and contractual liability coverage. Fire legal liability must be included with minimum limits of $50,000. (2) Comprehensive business automobile liability insurance with a minimum combined single limit of $500,000 including coverage for all owned, non -owned and hired autos. Only insurance written by a company with an AM Best rating of no less than a B+ VII and in good standing with the Texas State Board of Insurance shall be acceptable to the City. B. Indemnity. Licensee shall defend (at the option of City), indemnify, and hold City, its successors, assigns, officers, employees and elected officials harmless from and against all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of Licensee, or Licensee's agents, employees or subcontractors, or any participant or attendee of the Event arising from, associated with, or otherwise relating to the Event, including, but not limited to, claims related to any intellectual property rights, or musical, literary or artistic works, claims related to the collection or reporting of taxable sales, or other costs no matter how, or to whom, such loss may occur. Nothing herein shall be deemed to limit the rights of City or Licensee (including, but not limited to the right to seek contribution) against any third party who may be liable for an indemnified claim. Maintenance of the insurance required under these Terms of Use shall not limit Licensee's obligations under this paragraph. 8.01 TERMINATION A. Termination for Convenience. The City shall have the right to terminate any and all rights granted to Licensee for use of the Premises, or any other City -owned property, for convenience and without cause, at City's sole discretion at any time upon written notice given to 4 Licensee or Licensee's agent. In the event that City terminates the rights of Licensee under this paragraph, City shall return that portion of the Rental Amount actually received by the City (the "Returned Amount") to Licensee within thirty (30) days of such termination. Licensee agrees that payment of the Returned Amount constitutes liquidated damages, and Licensee agrees to accept the Returned Amount as its total damages and relief and as Licensee's sole remedy for termination of Licensee's rights to the Premises under this paragraph. The City agrees not to exercise this termination right to contract with other tournaments or special events on some or all of the dates listed in Exhibit A. B. Termination for Default. In the event of any failure by Licensee to comply with any of these Terms of Use ("Default"), in addition to all other rights or remedies available to the City under law or in equity, the City shall have the right to terminate any and all rights granted to Licensee for use of the Premises, or any other City -owned property, at any time upon written notice given to Licensee or Licensee's agent. Upon termination of Licensee's rights by the City, City, its agents or representatives, may, without further demand or notice, reenter and take possession of the Premises and remove persons and property from the Premises without committing any manner of trespass, and without prejudice to any remedies of the City for such Default. If the City terminates the rights of Licensee under this paragraph, City shall have the right to retain all Rental Amounts paid to the City (the "Retained Amount"). If actual damages sustained by the City as a result of any Default exceed the Retained Amount, the City shall have the right to recoup any such damages through any remedy at law or equity, subject only to an offset for the Retained Amount. If actual damages sustained by the City as a result of any Default do not exceed the Retained Amount, Licensee agrees that City may retain the Retained Amount as liquidated damages 9.01 COMPLIANCE WITH LAWS, RULES AND REGULATIONS A. Licensee shall comply with all applicable Federal, State, City, and local laws, ordinances, rules and regulations concerning the use of the Premises or the conduct of the Event and will not do, nor suffer to be done, anything on the Premises in violation of any such laws, ordinances, rules or regulations. Licensee shall obtain and pay for all necessary permits and licenses. The City may adopt and enforce reasonable rules, regulations and standards, which Licensee agrees to observe and obey, with respect to the use of the Premises, together with all improvements, equipment and services of the City, for the purpose of providing for safety, good order, good conduct, sanitation and preservation of the Premises. B. Effective January 1, 2016, a person with a license to carry a handgun by the State of Texas is generally permitted to carry a handgun in a concealed manner or openly in a belt or shoulder holster on government property (the "Open Carry Act"). Pursuant to the Open Carry Act, the City can choose to prohibit handguns carried by licensed individuals only in limited circumstances, including municipal court and City Council meetings. There are situations where a person is forbidden by law from carrying a handgun openly or in a concealed manner, including but not limited to, a facility where a high school, college, pro sporting event or interscholastic event is taking place. Licensee shall comply with all aspects of the Open Carry Act and all other Federal and State laws and City ordinances relating to the carrying of guns on City premises. Licensee shall be responsible for posting any required signage if a person is forbidden by law from carrying a handgun openly or in a concealed manner to the facility during Licensee's Event. All signage posted shall be in compliance with the open Carry Act and all other Federal and State Laws and city ordinances relating to the carrying of guns on City premises. Licensee agrees to release, indemnify and hold harmless the City, its employees, and agents from any claims, citations, violations, fines or penalties of any type resulting from the posted signage or lack of posted signage. 10.01 FORCE MAJEURE/OCCUPANCY DISRUPTION A. Force Majeure. The failure of the City to perform its obligations under this Agreement shall be excused to the extent, and for the period of time, such failure is caused by the occurrence of an event of Force Majeure. Force Majeure shall mean acts and events not within the City's control, and which the City has been unable by the exercise of due diligence to avoid or prevent. Events of Force Majeure include, without limitation: Acts of God; strikes, lockouts, or other industrial disputes; inability to obtain material, equipment or labor; epidemics, civil disturbances, acts of domestic or foreign terrorism, wars within the continental United States, riots or insurrections; landslides, lightning, earthquakes, fires, storms, floods or washouts; arrests and restraint of rulers and people; interruptions by government or court orders; declarations of emergencies by applicable Federal, State, or local authorities; present or future orders of any regulatory body having proper jurisdiction and authority; explosions; and breakage or accident to machinery. B. Notice. The City shall give Licensee prompt notice of the event of Force Majeure by electronic mail, facsimile transmission, or telephone confirmed promptly thereafter in writing, and shall use due diligence to remedy the event of Force Majeure, as soon as reasonably possible; provided, however that nothing contained herein shall be construed to require a party to settle a strike or other labor dispute against its will. C. Termination. If the use of the Premises by Licensee is prevented in whole or in material part by an event of Force Majeure, the City may terminate this Agreement upon written notice. Licensee agrees that its exclusive remedy in the event of a termination under this Section shall be a refund of the portion of the fees and charges paid by Licensee hereunder prior to the termination. Except for such refund, the City shall not be liable or responsible to Licensee for any damages caused by such termination, and Licensee hereby releases and waives all claims against the City, the City, and its officials, officers, employees and agents, for any cost, loss, expense, liability, or damages sustained by reason of such termination. 11.01 CONTROL OF PREMISES The Premises, including keys thereto, shall be at all times under control of the City. The SM & TD designee and other duly authorized representatives of the City may enter the Premises at all times during the Event Period. The entrances and exits of the Premises shall be locked and unlocked at such times as may be reasonably required by Licensee for its use of the Premises. Licensee at Licensee's expense shall provide security guards or law enforcement personnel arranged through the City in numbers and at locations as determined by the SM & TD designee, whose duties shall include, but not be limited to, crowd control and security. Licensee shall be tol responsible for managing and supervising all activities and have sole responsibility for the safety of all participants, spectators, and players, including the responsibility for clearing the fields in the event of lighting or other inclement weather conditions. The City may eject or cause to be ejected from the Premises any person engaging in or conducting him/herself in a manner that is unlawful, disruptive, abusive or offensive to other patrons at or in the Premises. In addition, the City reserves the right to cancel field usage due to weather conditions during the course of the Event. Neither the City, nor any of its officers, agents or employees shall be liable to Licensee for any damages that may be sustained by Licensee or the ejected person through the City or the SM & TD designee's exercise of such right. The City may schedule other events before, during and after the Event Period for all areas of the Multi -Purpose Complex not previously contracted by Licensee without notice to Licensee. 12.01 MATTERS NOT COVERED Any decision concerning a matter not specifically covered by these Terms of Use, on subject matters reasonably inferable from the terms of this Terms of Use, shall rest solely within the reasonable discretion of the SM & TD designee, acting by and on behalf of the City. 13.01 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of these Terms of Use or the occurrence of any event rendering any portion or provision of these Terms of Use void shall in no way affect the validity or enforceability of any other portion or provision of these Terms of Use. Any such void provision shall be deemed severed from these Terms of Use, and the balance of these Terms of Use shall be construed and enforced as if these Terms of Use did not contain the particular portion or provision held to be void. Licensee further agrees that these Terms of Use may be amended to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent these Terms of Use from being void should a provision which is of the essence of these Terms of Use be determined to be void. 14.01 APPLICABLE LAW; ENFORCEMENT AND VENUE These Terms of Use 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 the courts of Williamson County, Texas. These Terms of Use shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 15.01 DISPUTE RESOLUTION Licensee hereby expressly agree that no claims or disputes between the Licensee and City arising out of or relating to the Event, these Terms of Service or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 7 16.01 ASSIGNMENT AND DELEGATION Licensee hereby binds itself, its successors, assigns and legal representatives with respect to these Terms of Use. License shall not assign, sublet or transfer any interest or rights under these Terms of Use without prior written authorization of the City. 17.01 NOTICES All notices and other communications in connection with the Event shall be in writing and shall be considered given as follows: (1) when delivered personally to Licensee or Licensee's agent; (2) three (3) days after being deposited in the United States mail, with postage prepaid to the Licensee at the address provided by Licensee, as stated in Exhibit A; (3) notice to the City shall be considered given when delivered personally to the addresses below, or three (3) days after being deposited in the United States mail, with postage prepaid to the addresses below. Laurie Hadley, City Manager Stephan L. Sheets, City Attorney 221 East Main Street AND TO: 309 East Main Street Round Rock, TX 78664 Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Licensee. 18.01 NON -WAIVER The City's acceptance of fees or charges, or failure to complain of any action, non -action or default of Licensee, whether singular or repetitive, shall not constitute a waiver of any of the City's rights unless the City expressly agrees in a separate written instrument supported by independent consideration. The City's waiver of any right, or any default of Licensee's shall not constitute a waiver of any other right or constitute a waiver of any other default or any subsequent default. No act or omission by the SM & TD designee or the City's agents shall be deemed an acceptance or surrender of the Premises. The City's agents and representatives do not have authority to make any changes to these Terms of Use, make any agreements with Licensee, or accept surrender of the right to use the Premises unless same are in writing and signed by an authorized agent of the City. The SM & TD designee is the authorized agent of the City under these Terms of Use. 19.01 ATTORNEY'S FEES If the City is required to file suit to collect any amount owed it under these Terms of Use, the City shall be entitled to collect reasonable attorney's fees, court costs and other expenses of litigation if it prevails in such suit. 20.01 ENTIRE TERMS 8 These Terms of Use constitute the entire terms governing Licensee's use of the Premises, and supersede any and all previous oral or written terms or representations between the parties. Licensee agrees that the City and its agents have made no representations or promises with respect to these Terms of Use, except as expressly set forth herein, and that no claim or liability or cause for termination may be asserted by Licensee against the City, and the City shall not be liable by reason of the breach of any alleged representation or promise not expressly stated in these Terms of Use. These Terms of Use may only be amended in writing signed by the Licensee and the City. Nothing in these Terms of Use gives or shall be construed to give or provide, any benefit, direct or indirect, to any third party. 21.01 WARRANTY OF AUTHORITY Licensee warrants and represents that the person signing these Terms of Use on its behalf has been duly authorized and empowered to do so, that it has taken all action necessary to approve these Terms of Use, and that these Terms of Use are a lawful and binding obligation of Licensee. IN WITNESS WHEREOF, Licensee executes these Terms of Use and agrees to be bound by them regarding Licensee's use of the Premises. LICENSEE: Signature:_Wt&— Printed Name: Matt Yukelson Title: Vice President, AFFL, LLC Date Signed: 9/22/17 w City of Round Rock, Texa Signature: Printed Name )ryol�S fty-� Title: ' "t r. / Date Signed: / c- LO —1 -7 City of Round Rock ROUND ROCK TEXAS Agenda Item Summary Agenda Number: Title: Consider authorizing a Terms of Use agreement with the Amercian Flag Football League for use of the Multi -Purpose Sports Complex. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 10/6/2017 Dept Director: Chad McKenzie Cost: Indexes: Attachments: LAF, Agreement Department: Sports Management and Tourism Text of Legislative File CM -2017-1488 Consider authorizing a Terms of Use agreement with the Amercian Flag Football League for use of the Multi -Purpose Sports Complex. American Flag Football League will host a Flag Football Tournament at the Multi -Purpose Sports Complex. City of Round Rock Page 1 Printed on 1016/2017