CM-2018-1718 - 6/15/2018HOST PARTNER AGREEMENT
THIS AGREEMENT (the "Agreement") is executed effective as of date of signing (the
"Ef1'cctive Date") by and between USA ULTIMATE, 5825 Delmonico Drive, Suite 350
Colorado Springs, CO 80919, and the CITY Or ROUND ROCK, TEXAS (the "City/Host"), 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 I lost Partner" of the USA Ultimate
College Championships (the "event") in Round Rock, Texas, on or about May 24 through May
27, 2019, to be held at the Round Rock Multipurpose 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 ol'which are hereby acknowledged, USA
ULTIMATE and City/Host agree as follows:
1. Designation and RiLlhts as OfEcial Host Partner
(a) City/Host shall be designated as an "Oficial Host Partner" for the event
(b) USA ULTIMATE has the right to secure its own sponsors or
sponsorships far the event.
(c) City/Host acknowledges that USA ULTIMATE has granted and/or may
grant to other National Corporate Sponsors, National Partners, or
Licensees the use of the USA ULTIMATE's Marks (defined herein as
USA ULTIMATE's trademarks, trade navies, service marks and logos) in
the promotion of USA ULTIMATE's goods or services. Said licensing
and merchandising relationships shall be on a local, regional, and national
basis.
(d) USA ULTIMATE 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. USA
ULTIMATE and City: Host shall not apply for and shall not obtain any
state or federal service mark or trademark registration or any foreign
service niark or trademark that incorporates or uses the trademark, trade
narne, service mark or logo of the other without the prior express written
consent of the other.
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2. USA ULTIMATE's Rights and Resnonsibilities
(a) USA ULTIMATE shall have the right to receive and retain, in accordance
with conditions recited herein, all team entry fees from the event.
(b) USA ULTIMATE shall obtain and maintain in frill 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/1-lost in advance of the event. USA ULTIMATE shall,
upon the direction of Citye"I lost, include City as an additional insured on
such insurance policy at no additional cost or charge to City/Host.
(c) USA ULTIMATE, 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 USA
ULTIMATE is in compliance with all terms of this Agreement, City/Host shall pay
to USA ULTIMATE the following:
(a) Rights Fee of T`velve Thousand and No/100 Dollars ($12,000.00). Such
rights fee shall assist in covering USA ULTIMATE'S event costs,
specifically venue rental costs as set forth herein. The rights fee of
$12,000.00 shall be due and payable by City/host to USA ULTIMATE
upon execution of this Agreement and shall be used by USA ULTIMATE
as follows:
(i) Upon receipt of the rights fee from City Host, USA ULTIMATE
shall use the rights fec to pay (lie deposit amount required by the
venue to secure (he venue for the Event. In the event the deposit
has already been paid by USA ULTIMATE prior to the execution
of this Agreement, the rights fee shall be used toward the
remaining costs of the venue rental.
(ii) In the event USA ULTIMATE 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. In the event the rights fee exceeds the total
cost of the venue rental, the rights fee may be used toward
additional event costs.
(iii) Within fiitcen (15) days of the execution date of this Agreement,
USA ULTIMATE shall provide City/}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 tile 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
Lill remedies available under Texas Law.
(b) Other Costs
City/1-10st 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 continence immediately upon the execution hereof by both
parties and shall end by operation of its own terms after completion of the event
on May 27, 2019.
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 terms 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 perl'ormance of this Agreement docs 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
G. Use and Ownershii) of Marks
USA ULTIMATE 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 USA ULTIMATE Mark or City/Host Mark.
Accordingly, in the event of any unauthorized use of any USA ULTIMATE Mark
or City/Host Mark by the other party (or a party authorized by such other party),
each party shall, in addition to any other 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 constricted as constituting a
partnership, employer-employee, or joint venture between or among USA
ULTIMATE or City/Flost. USA ULTIMATE 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.
8. Assi fitment
This Agreement shall be binding on file 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 via e-mail; facsimile; or by certified U.S. mail with
receipt confirmed to the following;
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To USA ULTIMATE
Will Deaver
Managing Director, Competition and National Teams
5825 Delmonico Drive, Suite 350
Colorado Springs, CO 80919
To City'[ -lost-
Laurie Hadley
City Manager
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Fach party shall have the obligation to notify the other ofany change in address for these
notice purposes.
10. Termination and Cancellation
(a) If tlic 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, (lien and in that event either
party hereto may terminate this Agreement without prejudice to any legal
or equitable rights to which such tenninating party may be entitled, and
such termination shall be effective upon delivering written notice to the
other party of such termination.
(b) City/Host may tenninate this Agreement, in whole or in part, for
convenience and with 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 USA ULTIMATE and shall provide USA ULTIMATE 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 determined by City'llost to have been provided to City/Most by
USA ULTIMATE prior to termination or cancellation. In the event that
CityfHost has, as of the effective date of termination or cancellation, paid
USA ULTIMATE more of the Rights Fee than required by this section
and this Agreement, then and in that event USA ULTIMATE shall be
obligated to promptly refund the full difference to City/Host.
11. Indemnification
To the extent allowed by law, City/Host hereby agree to hold harmless USA
ULTIMATE, 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 USA
ULTIMATE's use of (lie City/Most Marks as approved in accordance with this
Agreement, contests, sweepstakes or other activities conducted by Cityiflost
pursuant to this Agreement, and any product demonstrations or products
distributed by City/1-lost pursuant to this Agreement and (ii) any breach of this
Agreement by City/Bost.
To the extent allowed by law, USA ULTIMATE hereby agree to hold harmless
City I lost, and its affiliates and subsidiaries, and the agents, representatives,
off icers, 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' Pecs and costs)
related to or arising out of, whether directly or indirectly, (i) USA ULTIMATE's
intentional or negligent actions or omissions under this Agreement, including but
not limited to trademark infringements based upon City/1-10st's use of USA
ULTIMATE's Marks as approved in accordance with this Agreement, contests,
sweepstakes or other activities conducted by USA ULTIMATE pursuant to this
Agreement, and any product demonstrations or products distributed by USA
ULTIMATE pursuant to this Agreement and (ii) any breach ofthis Agreement by
USA ULTIMATE.
Each party will promptly notify tine other ofany claim. The terms, provisions and
conditions of this Section I I shall survive the expiration or earlier termination of
this Agreement.
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12. Entire Agreement
This Agreement constitutes the entire agreement between City I lost and USA
ULTIMATE 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 of 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 ofany kind.
14. Confidentiality
The parties hcreto 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 represent a lives 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 Agrcement, 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.
15. Execution
This Agreement may be executed in counterparts and shall be deemed executed
and binding upon signature by both parties hereof:
16. Covernint Lmy
This Agreement shall be enforceable in hound (tock, Texas, and if legal action is
necessary by either party with respecl to the enforcement of any or all of the terms
or conditions herein, exclusive venue lbr 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 Slate of Texas.
17. Severabilitv
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 (lye 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 [lie part of any of the parties in [lie 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 furtlier exercise thereof by such party or such party'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.
19. 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 (lie 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 Ma`cure
No party hereto will be responsible for [he 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 dales.
USA ULTIMATE
l CITY OF ROUND ROCK,_TCYAS
By: [3y:
Name —4L—)—Name: _
Title: M A+zAG „� �,�� Title:
Date: _ cp ,Z y Date: x
For City, Attest:
Ey: tP
-_
Sara L. White, City Cler
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