CM-2018-1610 - 1/26/2018CITY OF ROUND ROCK
SPORTS CENTER
REVENUE SHARING AGREEMENT
THE STATE OF TEXAS §
CITY OF ROUND ROCK §
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS §
KNOW ALL BY THESE PRESENTS:
THIS AGREEMENT is entered into on r-o•?j(,,0, 2018, by the City of
Round Rock, Williamson County, State of Texas, a ho le municipal corporation (the "City"),
located at 221 E Main St, Round Rock, Texas 78664, ah,d the undersigned authorized agent of
BEAST performance, located at 3547 Rock Shelf Lane, Round Rock, TX 78681.
WHEREAS, the City owns, operates and leases the Round Rock Sports Center ("RRSC"),
located at 2400 Chisholm Trail Drive, Round Rock, Texas, for various sports and recreational
events and activities; an
WHEREAS, BEAST Performance delivers to facilities sports and fitness training
programs; and
WHEREAS, the City wishes to hold speed. agility, strength, and conditioning classes at
its facility; and
WHEREAS, the parties desire to enter into a revenue sharing agreement for sorts and
fitness training classes at the RRSC based upon the terns set forth below;
NOW THEREFORE, in consideration of the terms, conditions and covenants herein
contained, the parties agree as follows:
SECTION I. INCORPORATION OF RECITALS
The recitals set forth above ore true and correct and incorporated into this Agreement.
SECTION 2. EFFECTIVE; TERM
1. The term of this Agreement shall commence on January 1. 2018 and continue
through December 31, 2018 ("Expiration Date").
2. The parties may agree in writing, subject to the approval of the City's authorized
agent, to extend the Agreement prior to the Expiration Date of the initial term or any subsequent
extended tern.
CW- 200-/�1v
SECTION 3. TERMS AND CONDITIONS
1. The City, through the RRSC, shall at its sole expense;
(i) Manage the registration process, specifically, the enrollment, all
communications between RRSC and participants, domestic payment
processing and the management of staff contracts.
(ii) Promote and market the programs through the RRSC, social Media, RRSC
website, email lists, and the City's newsletter.
(iii) Provide space (indoor or outdoor as agreed upon seasonally by both parties)
for the classes.
(iv) Provide necessary equipment,(list of equipment to be decided on by both
parties).
(v) Maintain insurance coverage in an amount mutually agreed upon by the
parties.
(vi) Promote the program as "in partnership with BEAST Performance".
2. BEAST Performance shall at its sole expense:
(i) Provide coaches/trainers & curriculum for all classes
(ii) Assist in the promotion of programs through BEAST Performance outlets
(email lists, social media, flyers)
3. All revenue generated from the operation any marts and fitness training classes at
the RRSC shall be shared between the parties. All revenue shall be paid directly to the City. The
City shall account for all revenue, and shall distribute to BEAST Performance fifty percent (50%)
of the revenue generated in a timely manner.
4. All costs incurred in the operation of sports and fitness training classes shall be
shared equally between the parties. All costs in addition to costs specifically referenced in this
Agreement, shall be mutually agreed upon by the parties prior to any expenditures.
SECTION 4. INDEMNIFICATION
Each party shall indemnify, and hold the other party 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
the other party. Nothing herein shall be deemed to limit the rights of the parties (including but not
limited to the right to seek contribution) against any third party who may be liable for an
indemnified claim.
SECTION 5. TERMINATION
A. Termination for Convenience. The parties shall have the right to terminate this
Agreement, for convenience and without cause, within ninety (90) days written notice to the non -
terminating party.
B. Termination for Default. If any party breaches any of the terms and conditions
of this Agreement and fails to rectify such default in accordance with a written notice from a non -
defaulting party within ten (10) days after the date of such notice (or a longer period if all parties
agree to same in writing), a non -defaulting party may terminate this Agreement at any time
thereafter.
SECTION 6. COMPLIANCE WITH LAWS, RULES AND REGULATIONS
BEAST Performance, its agents, and employees shall use best efforts to comply with all
applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as
amended, and with all applicable rules and regulations promulgated by local, state and national
boards, bureaus and agencies.
SECTION 7. FORCE MAJEURE
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, stones, 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 BEAST Performance 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 performance of the terns of this Agreement is prevented in whole
or in material part by an event of Force Majeure, the City may terminate this Agreement upon
written notice.
SECTION 8. APPLICABLE LAW; ENFORCEMENT AND VENUE
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 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.
SECTION 9. DISPUTE RESOLUTION
BEAST Performance hereby expressly agree that no claims or disputes between BEAST
Performance and the City arising out of or relating to this Agreement 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.
SECTION 10. 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 this Agreement. Any void
provision shall be deemed severed from this Agreement, and the balance of this Agreement shall
be construed and enforced as if this Agreement did not contain the particular portion or provision
held to be void. The parties further agree to amend this Agreement 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 this entire Agreement from being void should a
provision which is of the essence of this Agreement be determined void
SECTION 11. ASSIGNMENT AND DELEGATION
BEAST Performance hereby binds itself, its successors, assigns and legal representatives
with respect to this Agreement. License shall not assign, sublet or transfer any interest or rights
under this Agreement without prior written authorization of the City.
SECTION 12. NOTICES
All notices and other communications in connection with this Agreement shall be in writing
and shall be considered given as follows: (1) when delivered personally to BEAST Performance
or BEAST Performance's agent; (2) three (3) days after being deposited in the United States mail,
with postage prepaid to BEAST Performance at the address provided to the City; (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 the City and BEAST Performance.
SECTION 13. NON -WAIVER
The City's acceptance of revenue or charges, or failure to complain of any action, non-
action or default of BEAST Performance, 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 BEAST
Performance 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 GM or the City's agents shall be
deemed an acceptance or surrender of the RRSC. The City's agents and representatives do not
have authority to make any changes to this Agreement, make any agreements with BEAST
Performance 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 GM is the authorized agent of the City under this
Agreement.
SECTION 14. ATTORNEY'S FEES
If the City is required to file suit to collect any amount owed it under this Agreement, the
City shall be entitled to collect reasonable attorney's fees, court costs and other expenses of
litigation if it prevails in such suit.
SECTION 15. ENTIRE TERMS
This Agreement constitutes the entire terns agreed upon by the parties, and supersedes any
and all previous oral or written terms or representations between the parties. BEAST Performance
agrees that the City and its agents have made no representations or promises with respect to this
Agreement, except as expressly set forth herein, and that no claim or liability or cause for
termination may be asserted by BEAST Performance 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 this
Agreement. This Agreement may only be amended in writing signed by BEAST Performance and
the City. Nothing in this Agreement gives or shall be construed to give or provide, any benefit,
direct or indirect, to any third party.
SECTION 16. WARRANTY OF AUTHORITY
BEAST Performance warrants and represents that the person signing this Agreement on its
behalf has been duly authorized and empowered to do so, that it has taken all action necessary to
approve this Agreement, and that this Agreement is a lawful and binding obligation of BEAST
Performance.
[Signatures appear on the following page.]
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
City of Round Rock, Texas BEAST Performance
Attest:
By:
Sara L. White, City Clerk
sy: Zpsal
Printed Name:
Title: lee -
Date Signed:
City of Round Rock
ROUND Agenda Item Summary
Agenda Number:
Title: Consider authorizing a Revenue Sharing Agreement with BEAST
Performance for a Fitness and Training Program at the Round Rock Sports
Center.
Type: City Manager item
Governing Body: City Manager Approval
Agenda Date: 1/26/2018
Dept Director: Chad McKenzie
Cost:
Indexes:
Attachments: CMAF Revenue Sharing Agreement 2018 Beast Performance, Revenue
Sharing Agreement 2018 BEAST Performance
Department: Sports Management and Tourism
Text of Legislative File CM -2018-1610
Consider authorizing a Revenue Sharing Agreement with BEAST Performance for a
Fitness and Training Program at the Round Rock Sports Center.
With this agreement all revenue generated from the operation any sports and fitness
training classes at the RRSC shall be shared between the parties. All revenue shall be
paid directly to the City. The City shall account for all revenue, and shall distribute the
BEAST Performance fifty percent (50%) of the revenue generated in a timely manner.
City a( Round Rock Page 1 Printed on 1/25/2016