CM-2021-264 - 10/15/2021I LOST PARTNER AGREEMENT
THIS AGR17 MENT (the "Agreement") is executed effective as of date of signing (the
"Effective Date") by and between AUSTIN FENCERS CLUB. 2608 Moray Lane. Cedar Park,
Texas 78613, and the CITY OF ROUND ROCK, TEXAS (the "City/Host"), a Texas home -
rule municipality having offices at 221 East Main Street, Round Rock, Texas 78664, regarding
City/1-lost's desire to become an "Official Ilost Partner— of the AUSTIN CHALLENGE.
TOURNAMENT (the "event") in Round Rock, -Texas, on or about December 18 through
December 20. 2021. to be held at the Round Roca. Sports Center ("Sports Center") owned and
operated by the CityJlost and located at 2400 Chisholm Trail Drive. Round Rock. Texas 78681.
NOW.-ITIFREI:ORI_:, in consideration of the premises herein set forth and other good
and valuable consideration, the receipt and sufficiency of' which are hereby acknowledged,
AUSTIN FENCERS CLUB and City/I-lost agree as follows:
1. Desienation and Rip-hts as Official Host Partner
(a) City/Host shall be designated as an "Official I -lost Partner" for the event.
(b) AUSTIN FENCERS CLUB and City/Host acknowledge that City has one
exclusive sponsor for the Sports Center. Orthopedic Medicine, and
AUSTIN FENCERS CLUB has the right to secure its own sponsors or
sponsorships for the event with the exception of any sponsors in the field
of orthopedics.
(c) City/Ilost acknowledges that AUSTIN FI:NCIRS CLUB has granted
and. -'or may grant to other National Corporate Sponsors, National
Partners, or Licensees the use of the AUSTIN FENCERS CLUB's Marks
(defined herein as AUSTIN FI-NCF.RS CLUB's trademarks, trade names,
service marks and logos) in the promotion of AUSTIN FENCERS
CLUB's goods or services. Said licensing and merchandising
relationships shall be on a local. regional, and national basis.
(d) AUSTIN FFNCI-RS CLUB and Citylllost ackno%%ledge that each
recognizes the value of inherent attributes of the goodwill associated with
each other's respective trademarks, trade names, service marks and logos.
AUSTIN FENCERS CLUB and C ity.'I lost shall not apply fir and shall
not obtain any state or federal service mark or trademark registration or
any foreign service marl: or trademark that incorporates or uses the
trademark, trade name. service marl: or logo ofthe other without the prior
express written consent of the other.
2. Austin Fencers Cluh's RiLylits and Responsibilities
(a) At.STIN l'I•:NCI-'RS CLUB shall have the right to receive and retain, in
accordance %rith conditions recited herein, all team entry fees from the
event.
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(b) AUSTIN FENCERS CLUB shall obtain and maintain in full 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 ol'such insurance certificate
shall be provided to City/Host in advance of the event. AUSTIN
FENCERS CLUB shall, upon the direction of City/Host. include City and
designated sponsors as additional insureds on such insurance policy at no
additional cost or charge to City/Host.
(c) AUSTIN FENCERS CLUB, 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
AUSTIN FENCERS CLUB is in compliance with all terms of this Agreement,
City'I lost shall pay to AUSTIN FENCERS CLUB the following:
(a) Rights Fee of Fifteen Thousand and No/100 Dollars ($15,000.00). Such
rights fee sliall assist in covering AUSTIN FENCERS CLUB'S event
costs, specifically venue rental costs as set forth herein. The riolits tee of
$ l 5,000.00 shall be due and payable by City/1-lost to AUSTIN FENCERS
CLUB upon execution of this Agreement and shall be used by AUSTIN
FENCERS CLUB as follows:
(i) Upon receipt of the rights fee from City/1-lost, AUSTIN FENCERS
CLUB shall use the rights tee to pay the deposit amount required
by the venue to secure the venue for the Event. In the event the
deposit has already been paid by AUSTIN FENCERS CLUB 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 AUSTIN FENCERS CLUB 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.
(iii) Within fifteen (15) days of the execution date of this Agreement;
AUSTIN FENCERS CLUB shall provide City/Host (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 CityMost (attn: Nancy
Yawn, Director of Round Rock CVB) within three (3) days of full
payment of the 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,`llost shall at its sole discretion seek any and
all remedies available under Teas Law.
(b) Other Costs
Citv/l lost shall be responsible for the costs associated with the premiums
or other expenses related to Citvll lost's on -site promotions. Citylllost
shall also be responsible for costs associated with the production of
City/Flost's own promotional materials to be distributed on -site.
City/i lost shall endeavor to ensure that all City/Most 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 commence immediatek - upon the execution hereof by both
parties and shall end by operation of its own terms after completion of the event
on December 20, 2021.
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 lak%.s al'lecting
creditors' rights generally.
(c) The execution. delivery and performance of this Agreement does not and
N%il] not violate or cause a breach of any other agreements or obligations to
\thich 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 herekk.ith.
(d) Bach of the foregoing representations, warranties and covenants shall be
true at all times during the term hereof'.
6. Use and Ownership of Marks
AUSTIN FI NCERS CLUB and City/I lost hereby agrees to use the Marks of'the
other only as set 1brth 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 AUSTIN FENCERS CLUB Mark
or City/Host Mark. Accordingly, in the event of any unauthorized use of any
AUSTIN FENCERS CLUB Marl: 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 Citylllost 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 Ibr specific performance.
7. No Joint Venture
This Agreement does not constitute and shall not be constructed as constituting a
partnership, employer -employee, or joint venture between or among AUSTIN
FENCERS CLUB or City/Host. AUSTIN FENCERS C1.013 is an independent
contractor and is not Cio,/Holds 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.
S. Assignment
This Agreement shall be binding on the 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 by certified U.S. mail with receipt confirmed to the
following:
To AUSTIN FENCERS CLUB: Cathy Mallet
AUSTIN FENCERS CLUB
2608 Moray Lane
Cedar Park, Texas 78613
To Cityll-last: Laurie Hadley
City Manager
Citv of Round Rock
221 Gast Main Street
Round Rock. Texas 78664
Fach party shall have the obligation to notify the other of any change in address fior these
notice purposes.
10. Termination and Cancellation
(a) If the other party material[}- defaults in the performance of this Agreement,
and if such default is not cured within thirty (30) clays following written
notice of such default to the defaulting party, then and in that event either
party hereto may terminate this Agreement without prejudice to- any legal
or equitable rights to which such terminating party may be entitled. and
such termination shall be effective upon delivering notice to the other
party ol'such termination.
(b) City/Flost may terminate this Agreement. in whole or in part, fior
convenience and without cause, at any time upon ninety (90) days' written
notice to the other party. Prior to proceeding with a termination for cause.
City/[Most agree to use all reasonable efforts to resolve any and all issues
with AUSTIN FENCERS CLUB and shall provide AUSTIN FENCERS
CLUB 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 actually determined by City/Host to have been provided to
City,'I.lost by AUSTIN FENCERS CLUB prior to termination or
cancellation. In the event that City/I lost has. as of the effective date of
termination or cancellation, paid AUSTIN FENCERS CLUB more of the
Rights Fee than required by this section and this Agreement. then and in
that event AUSTIN FENCERS CLUB shall be obligated to promptly
refund the full difference to City/Host.
11. Indemnification
To the extent allowed by law, City/1-lost hereby agree to hold harmless AUSTIN
FENCERS CLUB, 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, darnages, 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)
CityrHost's intentional or negligent actions or omissions under this Agreement,
including but not limited to trademark infringements based upon AUSTIN
FENCERS CLUB's use of the City/Host Marks as approved in accordance with
this Agreement, contests, sweepstakes or other activities conducted by City/Host
pursuant to this Agreement, and any product demonstrations or products
distributed by City/Host pursuant to this Agreement and (ii) any breach of this
Agreement by City/Host.
To the extent allowed by law, AUSTIN FENCERS CLUB hereby agree to hold
harmless Cityll-lost. 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)
AUSTIN FENCERS CLUB's intentional or negligent actions or omissions under
this Agreement, including but not limited to trademark infringements based upon
City/Host's use of AUSTIN FENCERS CLUB's Marks as approved in
accordance with this Agreement, contests. sweepstakes or other activities
conducted by AUS'1 IN FENCERS CLUB pursuant to this Agreement, and any
product demonstrations or products distributed by AUSTIN FENCERS CLUB
pursuant to this Agreement and (ii) any breach of this Agreement by AUSTIN
FENCERS CLUB.
Each party will promptly notify the other of any claim. The terms, provisions and
conditions of this Section 12 shall survive the expiration or earlier termination of
this Agreement.
12. Entire Agreement
This Agreement constitutes the entire agreement between City/Flost and AUS I IN
FENCERS CLUB 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.
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13. Limitation of Liability
Not%vithstand ing 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 of any kind.
14. Confidentiality.
The parties hereto expressly acknowledge that Cily/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, ar,ents, or representatives 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 Agreement. 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. CoverninlZ Law
Tliis 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 Williamson County,
'texas. This Agreement shall be governed by and construed in accordance with
the laws and court decisions of the State ofTexas.
17. Severability
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 A"'-ei:mdnk*shall be invalid or enforceable under applicable law, such
provision shall be ineffective to the extent of such unenforceability or in
invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Agreement. All obligations and rights or the parties expressed
herein shall be in addition to, and not in limitation of, those provided by
applicable law.
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18. No Waiver
No failure or dclay on the part of any of the parties in the 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 oi` any right, power or remedy
preclude other or further 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 the case may be, and the represeentat ions and
warranties made in and the indemnifications provided pursuant to this Agreement
shall survive the expiration or earlier termination of this Agreement.
21. Force Maieure
No party hereto will be responsible for the 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 WVIEREOF, the parties hereby execute this Agreement on the indicated dates.
Austin Femeers M15
Name'Li
Title: i ^tZ�Ei-Su�z2�
Date: 1Z 90 2�
City of Round Rock, Texas
By: _
Name:
Title:
Date: ,
For City, Attest,
By:
Sara L. White. City Clerk
City of Round Rock
ROUND ROCK
TEXAS Agenda Item Summary
Agenda Number:
Title: Consider authorizing Host Partner Agreement with Austin Fencers Club Located at
the Round Rock Sports Center.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 10/15/2021
Dept Director: Chad McKenzie
Cost: $15,000.00
Indexes: Hotel Occupancy Tax Fund
Attachments: Austin Challenge Tournament December 18-20 2021
Department: Sports Management & Tourism
Text of Legislative File CM-2021-264
The Austin Challenge Tournament will be held at the Round Rock Sports Center December 18-20, 2021
Cost: $15,000,00
Source of Funds: HOT funds
City of Round Rock Page 1 of 1