CM-2020-265 - 9/2/2020CITY OF ROUND ROCK
MULTI -PURPOSE SPORTS COMPLEX
TERMS OF USE
THE STATE OF TEXAS §
CITY OF ROUND ROCK §
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS
KNOW ALL BY THESE PRESENTS
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 City
of Round Rock, Texas (the "City") and TGA USA, a Minnesota nonprofit corporation doing
business as The Girls Academy (referred to herein as "Licensee") in consideration for Licensee
being allowed to use all or a portion of the Multi -Purpose Sports Complex owned by the City,
Licensee and the City agree 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: Soccer Tournament and all related ancillary
purposes thereto (the "Event"). 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 for 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 agreed by the Sports Management & Tourism Department designee (the
"SM & TD designee") and Licensee. Space within the Premises may be reassigned by the SM &
TD designee upon prior written notice to Licensee so long as the reassignment does not have a
negative material impact on Licensee's use of the Premises. 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 by Licensee and provided by
or through the City (the "Additional Services") in accordance with the commercially reasonable
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.
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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 commencement of the Event
Period.
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 undisputed amount of the Invoice within
thirty (30) days of the date of the Invoice.
Except as otherwise provided in this Agreement, 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. Licensee or the City reserve the right to
cancel the Event in the event of pandemic or other event where Licensee is unable to host the Event
due to a Force Majeure event as defined in Section 10.01A, the COVID-19 pandemic, government
order or other event beyond Licensee's reasonable control, and in such event, the City 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 unless
otherwise 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, except to the extent that such damage is caused by the negligence or tortious act or
omission of the City or its agents, contractors or employees. 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, normal wear and tear excepted. 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.
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4.01 DAMAGED PROPERTY AND CLEANUP
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 of
the indoor facilities located on the Premises used for the Event that cannot be effectively
accomplished through normal commercial cleaning procedures. 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, normal wear and tear excepted. 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. Except as otherwise provided in this
Agreement or agreed to in writing by the parties, the City reserves for itself, or its designated
concessionaires or contractors, the sole right to provide all food, beverages, and any City or
Premises related merchandise, together with the necessary space to do so. Licensee may sell the
Event sponsorship rights, Event related merchandise, and any other items agreed to in Exhibit "C".
Licensee or its agents or contractors may sell other 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; provided,
however, THE CITY SHALL INDEMNIFY AND HOLD HARMLESS LICENSEE FROM ANY
CLAIMS FOR DAMAGES OR OTHER COSTS ASSOCIATED WITH THE CITY'S OR A
CITY EMPLOYEE, CONTRACTOR OR AGENT'S USE OF ANY SUCH RECORDING.
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, except as agreed to by the SM & TD designee or the City. Licensee shall not circulate
or publish or cause to be circulated or published any advertisement, tickets, placard, or other
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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, which consent may not
be unreasonably denied.
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 T14IRD PARTIES.
7.01 INSURANCE AND INDEMNIFICATION.
A. Licensee 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 reflecting such
insurance policies as required under this Section. 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. Indemnification of the City. Except to the extent that such liability is caused by
the condition of the Premises not caused by Licensee or the negligence or tortious act or omission
of City or its officials, officers, agents, contractors or employees, 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, reasonable attorney's fees, and any and all other costs or fees (collectively
"Claims") arising out of 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 Licensee's obligation for
the collection or reporting of taxable sales (excluding the City's tax obligations of any and all kinds
whatsoever), or other costs no matter how, or to whom, such loss may occur.
C. Indemnification of the Licensee._Except to the extent that such liability is caused
by the negligence or tortious act or omission of Licensee, or its directors, officers, members,
agents, contractors or employees, the City shall indemnify, defend and hold harmless Licensee and
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its officers directors members employees or agents from and against any and all Claims by or
on behalf of any person or entity, arisingfrom rom (1) any negligent or tortious act or omission by the
City or its officials officers employees agents or contractors within the Premises or related to
the Event; and (2) breach of any representation warranty covenant agreement or obligation under
this Agreement. 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.
D. Nothing 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.
8.01 TERMINATION
A. Termination for Convenience. On or before ninety (90) days before the Event, t
either party shall have the right to terminate this Agreement, for convenience and without cause,
in its sole discretion at any time upon written notice given to the other party or its agent. In the
event of termination be either party, the 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.
B. Termination for Default. In the event of any failure by either party to comply
with any of these Terms of Use and such default remains uncured after reasonable notice to the
other party ("Default"), in addition to all other rights or remedies available to the under law or in
equity, either party shall have the right to terminate this Agreement at any time upon written notice
given to the defaulting party or its agent. Upon termination of this Agreement, 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. If the Licensee terminates
this Agreement as a result of the City's default, the City shall return to Licensee all Rental Amounts
paid to the City.
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9.01 COMPLIANCE WITH LAWS, RULES AND REGULATIONS
A. The City represents and warrants to Licensee that the condition of the Premises
complies with and will continue to comply with during the Event Period with all applicable
Federal, State, City, and local laws, ordinances, rules and regulations ("Applicable Laws") and the
use of the Premises of the Event is consistent with and does not violate any Applicable Laws.
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 or Licensee 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 or the Licensee's control, and which the City or the Licensee have 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; pandemics, including but not limited
to COVID-19 pandemic; interruptions or closures 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.
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B. Notice. A party shall give the other party 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 Maj eure, either party may terminate this Agreement upon written
notice. The parties agree that in the event the Agreement is terminated under this Section, the City
shall refund the portion of the fees and charges paid by Licensee hereunder prior to the
termination. Neither party shall be liable or responsible to the other parry for any damages caused
by such termination, and each parry hereby releases and waives all claims against the other party,
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
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 be agreed to by
Licensee and 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.
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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. The parties further agree 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
The parties 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.
16.01 ASSIGNMENT AND DELEGATION
Each party hereby binds itself, its successors, assigns and legal representatives with respect
to these Terms of Use. Licensee shall not assign, sublet or transfer any interest or rights under
these Terms of Use without prior written authorization of the City, which consent may not be
unreasonably withheld.
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 below; (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 AND TO:
Manager
221 East Main Street
Round Rock, TX 78664
r-1
Stephan L. Sheets, City
Attorney
309 East Main Street
Round Rock, TX 78664
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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 either party's failure to complain of any action,
non -action or default of the other party, whether singular or repetitive, shall not constitute a waiver
of any of the first party's rights unless the first party expressly agrees in a separate written
instrument supported by independent consideration. A party's waiver of any right, or any default
of the other party shall not constitute a waiver of any other right or constitute a waiver of any other
default or any subsequent default. Neither party's agents and representatives have authority to
make any changes to these Terms of Use, make any agreements with the other party, or accept
surrender of the right to use the Premises unless same are in writing and signed by an authorized
agent of the other party. The SM & TD designee is the authorized agent of the City under these
Terms of Use.
19.01 ATTORNEY'S FEES
If either party is required to file suit to enforce the terms of these Terms of Use, that party
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
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.
Each of the Licensee agrees that the City and its agents and the City agrees that the Licensee 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 either party, and neither party shall 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
Each party warrants and represents that the person signing these Terms of Use on its behalf
has been duly authorized and empowered to do so, that each party has taken all action necessary
to approve these Terms of Use, and that these Terms of Use are a lawful and binding obligation of
each party.
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IN WITNESS WHEREOF, Licensee and the City executes these Terms of Use and agrees to be
bound by them regarding Licensee's use of the Premises.
LICENSEE:
Entity Name:
Girls Academy
By.
Printed Name and Title:
Date Signed:
Wesley A Schevers / President
August 16, 2020
CITY OF ROUND ROCK:
By;
A��
Printed Name and Title: Ut tf-1C, ke— , c'c A
Date Signed:
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ROUND ROCK
TEXAS
City of Round Rock
Agenda Item Summary
Agenda Number:
Title: Consider authorizing a Term of Use Agreement for The Girls Academy to use
the City's Multi -Purpose Sports Complex.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 10/2/2020
Dept Director: Chad McKenzie - Sports Management Director
Cost:
Indexes:
Attachments:
Department: Sports Management and Tourism
Text of Legislative File CM-2020-265
The Girls Academy will be holding a soccer tournament at the Multi -Purpose Sports Complex.
The date, times and total cost of usage of the Multi -Purpose Sports Complex will be
determined at a later date.
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