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CM-2021-126 - 5/7/2021CITY OF ROUND ROCK SPORTS CENTER REVENUE SHARING AGREEMENT THE STATE OF TEXAS § CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS: COUNTY OF WILLIAMSON § COUNTY OF TRAVIS § THIS AGREEMENT is entered into on �� 2021, by the City of Round Rock, Williamson County, State of Texas, a home -rule mu cipal corporation (the "City"), located at 221 E Main St, Round Rock, Texas 78664, and the undersigned authorized agent of Kwame Cavil located at 735 Coconut Grove Street, Pflugerville, TX 78660. 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; and WHEREAS, Kwame Cavil delivers to facilities strength programs; and WHEREAS, the City wishes to hold strength programs at its facility; and WHEREAS, the parties desire to enter into a revenue sharing agreement for strength programs at the RRSC based upon the terms set forth below; NOW THEREFORE, in consideration of the terms, conditions and covenants herein contained, the parties agree as follows: SECTION 1. INCORPORATION OF RECITALS The recitals set forth above are true and correct and incorporated into this Agreement. SECTION 2. EFFECTIVE; TERM 1. The term of this Agreement shall commence on April 23, 2021 and continue through April 30, 2022 ("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 term. Al-�22I -- Imo- 004G4443/ss2 SECTION 3. TERMS AND CONDITIONS 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 decided on by both parties). (v) Maintain insurance coverage in an amount mutually agreed upon by the parties. 2. Kwame Cavil shall at its sole expense: (i) Provide coachesltrainers & curriculum for all classes (ii) Assist in the promotion of programs through Kwame Cavil outlets (email lists, social media, flyers) 3. All revenue generated from the operation of any strength programs at the RRSC shall be equally shared between the parties. All revenue shall be paid directly to the City. The City shall account for all revenue, and shall distribute to Kwame Cavil forty percent (40%) of the revenue generated or twenty-five ($25) per hour, whichever is greater, in a timely manner. 4. All costs incurred in the operation of strength programs 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 Kwame Cavil shall indemnify, and hold the City 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 negligence of Kwame Cavil. 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 l . 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. 2 2. 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 G. COMPLIANCE WITH LAWS, RULES AND REGULATIONS 1. Kwame Cavil, 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. 2. In accordance with Chapter 2270, Texas Government Code, a governmental entity may not enter into a contract with a company for goods and services unless the contract contains written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this contract. The signatory executing this Agreement on behalf of Kwame Cavil verifies Kwame Cavil does not boycott Israel and will not boycott Israel at any time during the term of this Agreement. SECTION 7. 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. SECTION S. 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. I SECTION 9. DISPUTE RESOLUTION Kwame Cavil hereby expressly agree that no claims or disputes between Kwame Cavil 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 Kwame Cavil hereby binds itself, its successors, assigns and legal representatives with respect to this Agreement, and 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 Kwame Cavi I or Kwame Cavil's agent; (2) three (3) days after being deposited in the United States mail, with postage prepaid to Kwame Cavil 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 Kwame Cavil. SECTION 13. NON -WAIVER The City's acceptance of revenue or charges, or failure to complain of any action, non - action or default of Kwame Cavil, whether singular or repetitive, shall not constitute a waiver of 4 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 Kwame Cavil 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 City or the City's agents shall be deemed an acceptance or surrender of the RRSC. 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 terms agreed upon by the parties, and supersedes any and all previous oral or written terms or representations between the parties. Kwame Cavil 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 Kwame Cavil 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 Kwame Cavil 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 Kwame Cavil 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 Kwame Cavil. [Signatures appear on the following page.] 5 IN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereafter indicated. City of Round Rock, Texas Title: Date Signed: 6 Kwame Cavil By: _ 1-?-5 z Printed Na e: jQm ,wg- Title: Date Signed: C'0 G� City of Round Rock ROUND ROCK TEXAS Agenda Item Summary Agenda Number: Title: Consider authorizing Revenue Sharing Agreement with Kwame Cavil for strength programs located at Round Rock Sports Center. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 5/7/2021 Dept Director: Chad McKenzie Sports Management Director Cost: Indexes: Attachments: Agreement Department: Sports Management and Tourism Text of Legislative File CM-2021-126 Agreement term is April 23, 2021 to April 30, 2022, The City, through the RRSC, shall manage the registration process, promote and market the programs and provide space for the class. The RRSC shall provide equipment and maintain insurance coverage. Kwame Cavil shall provide coaches/trainers and curriculum and assist in the promotion of the programs through his outlets. City of Round Rock Page 1 of 1