CM-2015-915 - 10/2/2015EQUIPMENT LEASING AND REVENUE SHARING AGREEMENT
This EQUIPMENT LEAS N REVENUE SHARING AGREEMENT ("Agreement') is
hereby entered into as of ;� Z. 2 D/S (the "Effective Date"), by and between
Bubbleball, Inc. (together with it� rs and assigns, `Bubbleball") and City of Round
Rock, Williamson County, State of Texas, a home -rule municipal corporation (together with its
successors and assigns, "Lessee").
WHEREAS, Bubbleball is in the business of providing certain sporting equipment for lease to
third parties for use in connection with inflatable sphere sports and recreation activities; and
WHEREAS, Lessee wishes to lease such sporting equipment for its provision of services to
consumers.
NOW, THEREFORE, in consideration of the mutual convenants and agreements set forth herein
along with other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Unless the context otherwise requires, capitalized terms used herein have the
meanings provided in this Agreement.
2. Delivery. Acceptance and Leasing of Equipment. Bubbleball and Lessee hereby agree
that (a) All Equipment and Each Item of Equipment (as such terms are defined on Schedule A
hereto, which Schedule may be amended to add Items of Equipment from time to time) shall be
delivered to Lessee on the date provided in Schedule A hereto; (b) Lessee shall inspect each such
Item of Equipment so delivered and, unless it rejects such Item(s) of Equipment within five (5)
days after receipt thereof, such items shall be deemed accepted by Lessee.
Term.
3.1. Item of Equipment. The Term for the lease of each Item of Equipment shall
commence on the Delivery Date thereof, and shall end on the date provided for at the end
of the Term on Schedule A, or the date terminated by either party for any reason or for no
reason at all with respect to such Item (or all Equipment) pursuant to the provisions
hereof, or if this Agreement is renewed with respect to such Item of Equipment pursuant
to Section 22 hereof, on the last day of the last Renewal Term (if any, as such term is
defined in Section 22 hereof) thereof, or on the date terminated if terminated during such
Renewal Term by either party for any reason or no reason at all.
3.2. Agreement. This Agreement shall be effective upon execution of both parties
hereto and shall remain effective for an initial period of twelve (12) months. The
Agreement shall automatically renew at the end of the Initial Term and at the end of each
Renewal Term thereafter unless either party provide notice thirty (30) days prior to the
end of the Initial or Renewal Term to the other party stating the desire to terminate the
Agreement. Either party has the right to terminate this Agreement for convenience upon
CM' Zo/S- Z3 /S
thirty (30) days written notice to the other party at any time during the Initial Term of the
Agreement or any subsequent Renewal Term. In the event of a default by either party,
the non -defaulting party has the right to terminate the Agreement for cause upon ten (10)
days' written notice to the defaulting party.
4. Return of Equipment.
4.1. Return Delivery. Other than in connection with returns under Section 14 of this
Agreement (Warranties), upon the expiration or earlier termination of the Term with
respect to each Item of Equipment, Lessee will, at its expense, dismantle, surrender and
deliver possession of each Item of Equipment to BubbleBall at its address for Notice with
a certificate executed by an officer of Lessee certifying that the Item of Equipment is in
the condition required hereunder, a copy of an inventory list for each Item, all then
current manuals for each Item. At the time of such return to BubbleBall, each Item of
Equipment (and each part or component thereof) shall (a) meet the original design
specifications and operating standards of such Item, (b) be in as good of operating
condition, state of repair and appearance as when delivered to Lessee hereunder, ordinary
wear and tear excepted, and in the condition required by Section 7 hereof, (c) have no
missing or damaged components such that its value, utility or remaining useful life will
be reduced, (d) comply with all laws and rules referred to in Section 7 hereof, (e) have
attached or affixed thereto any addition, modification or improvement considered an
accession thereto as provided in Section 8 hereof, (f) have had removed therefrom in a
workmanlike manner any addition, modification or improvement which, as provided in
Section 8 hereof, is owned by Lessee, and (g) be free and clear of all Liens, other than a
Lien granted or placed thereon by repairs necessary to restore any Item of Equipment to
the condition required by this Section 4.1 The term "ordinary wear and tear" as used
herein shall not be construed as permitting any material broken, damaged or missing
items or components to any Item of Equipment. Upon redelivery, Lessee shall provide
any additional documentation reasonably requested by BubbleBall, at BubbleBall's cost,
relating to the redelivery of or BubbleBall's interest in each Item of Equipment.
4.2. Holdover Equipment Payment. Each Item of Equipment shall be deemed
redelivered upon satisfaction of the obligations and conditions set forth in this Section 4.
Until each such Item of Equipment has been returned to BubbleBall in the condition and
as otherwise provided in this Section 4, Lessee shall continue to pay BubbleBall, on the
same dates on which an Equipment Payment for such Item was payable during the Term
of the Item of Equipment thereof 125% of the Equipment Payment for such Item that was
payable on the last Payment Date of the Term thereof; provided, that during such
holdover period, Lessee shall use its best efforts to secure the return of the Equipment as
required under this Section4. The provision for payment pursuant to this Section 4 shall
not abrogate BubbbleBall's right under this Section 4 to have such Equipment returned to
it hereunder.
5. Pats.
5.1. Equipment Payment.
5.1.1. Lessee hereby agrees to pay BubbleBall a lease payment for each Item of
Equipment on the Delivery Date and subsequently by the fifth (5`h) day of each
Month thereafter during the Term of the Item of Equipment as payment for that
month of the leasing of such Items of Equipment under this Agreement, in the
amounts as defined on Schedule A hereto (an "Equipment Payment").
5.1.2. In the event Schedule A identifies the Equipment Payment as ROYALTY
(by checking the box provided therein), Lessee hereby agrees to pay BubbleBall
an Equipment Payment in the amount of the percentage identified multiplied by
the gross revenues Lessee charges to third parties for participation in activities
including the use of any of the Equipment during each billing month
("Royalties"). Such payment shall be due on the fifth (5`h) day of each month for
Royalties earned during the previous month (or partial month for the month in
which the Delivery Date falls) and shall be accompanied by a report identifying
all billings for activities including the use of any of the Equipment during the
relevant royalty period.
5.1.3. Once annually, upon thirty (30) days' prior notice, BubbleBall shall have
the right to have certified public accountants audit Lessee's accounting records
during normal business hours as necessary to calculate the Equipment Payments
due under this Agreement. Such audit shall be at BubbleBall's expense unless it
establishes undisputed accounting errors cumulatively resulting in overdue
Royalties exceeding five percent (5%) of the total sums accruing to BubbleBall
plus interest measured from the time the amounts were due, at the "rate in effect"
on September 1 of the fiscal year in which the payment becomes overdue, in
accordance with V.T.C.A., Texas Government Code, Section 2251.025(b).
Lessee shall pay any such amount due to BubbleBall within thirty (30) days after
the auditor's notice to Lessee of the deficiency. For purposes of this Section, an
"accounting error" refers to a discrepancy between the amount due from Lessee
and the amount paid to BubbleBallfor such period as of the date the audit is
requested.
5.2. Deposit. A refundable deposit shall be required as provided on the attached
Schedule A and shall be due on the Effective Date of this Agreement. Schedule A and
any terms set forth in Schedule A shall be incorporated herein for all purposes.
5.3. Method of Payment. All Equipment Payments required to be made by Lessee to
BubbleBall shall be made in immediately available funds. In the event of any assignment
to an Assignee pursuant to Section 10.2 hereof, all payments which are assigned to such
Assignee shall be paid in such manner as shall be designated by BubbleBall or such
Assignee. Lessee may pay by credit card, but a copy of a voided check must be provided
at the time such credit card information is provided. Lessee agrees to authorize charge of
such credit card immediately upon any amounts coming due under this Agreement. Time
is of the essence in connection with the payment of Equipment Payments and Royalties.
5.4. Late Payments. Lessee shall make payment to BubbleBall in accordance with the
terms of the Agreement set forth herein. BubbleBall may charge interest on an overdue
payment at the "rate in effect" on September 1 of the fiscal year in which the payment
becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section
2251.025(b). This Prompt Payment Policy deos not apply to payments made by the
Lessee in the event: (A) There is a bona fide dispute between Lessee and BubbleBall
about the goods delivered that causes the payment to be late; or (B) There is a bona fide
dispute between BubbleBall and a subcontractor or between a subcontractor and its
supplier about the goods delivered; or (C) The terms of a federal contract, grant,
regulation, or statute prevent City from making a timely payment with federal funds; or
(D) The invoice is not mailed to Lessee in strict accordance with any instruction on the
purchase order relating to the payment.
6. Use of Equipment; Compliance with Laws.
6.1. Lessee agrees that each Item of Equipment will be used and operated solely in the
conduct of its business in the manner for which it was intended, in accordance with the
license or certificate, if any, provided by the manufacturer thereof and in compliance with
any and all insurance policy terms, conditions, and provisions and with all laws
applicable to the use and operation of the Equipment, including, without limitations,
personal safety, environmental, noise and pollution laws (including notification and
reports). Lessee shall procure and maintain in effect all licenses, registrations,
certificates, permits, approvals, and consents required by federal, national, state or local
laws or by an governmental body, agency or authority in connection with the delivery,
installation, use and operation of each Item of Equipment, including, without limitations,
those required by environmental, noise and pollution laws (including notifications and
reports) and including, where applicable, any and all registrations, permits, licenses, and
all renewals thereof. Lessee shall use reasonable precautions to prevent loss or damage
to each Item of Equipment from fire and other hazards. Lessee shall not permit any Item
of Equipment to be used in any unlawful trade or in any manner that would violate any
law or expose such Item of Equipment to penalty, forfeiture or capture.
6.2. Lessee represents and warrants that it shall not permit (i) the improper use of the
Equipment and/or any Item of Equipment; and/or (ii) any use of the Equipment and/or
any Item of Equipment that endangers the life and/or health of any user; and (iii) any
unreasonable use of the Equipment and/or any Item of Equipment.
7. Maintenance and Repair of Equipment. Unless otherwise provided in the Agreement,
Lessee agrees, at its own cost and expense, to keep, repair, maintain, service and preserve the
Equipment in good repair, operating and serviceable condition and shall keep the Equipment in
order and condition equal to or better than other equipment of the same type owned by Lessee,
and in compliance with all requirements of applicable laws.
8. Exclusivity. Lessee hereby agrees that BubbleBall shall be Lessee's exclusive supplier of
equipment of the nature and type leased hereunder during the Term of this Agreement, and
Lessee will not, directly or indirectly, through any employee, agent, or otherwise, solicit, initiate
or encourage, leasing and/or purchase of similar equipment from any other vendor during such
Term.
9. Trademark License.
9.1. Grant. Bubbleball hereby grants to Lessee a limited, nonexclusive, non -
assignable, non-sublicenseable license to use the BubbleBall Marks in the Territory (as
defined on Schedule A) solely in the forms provided on Schedule B attached hereto (the
"Licensed Marks"), solely during the Term of this Agreement, and solely while Lessee is
using the Items of Equipment exclusively without the use of similar equipment supplied
by third parties.
9.2. Ownership. Lessee acknowledges that, as between BubbleBall and the Lessee,
BubbleBall is the sole owner of all right, title and interest in and to the Licensed Marks.
Lessee has not acquired, and shall not acquire, any right, title or interest in or to any of
the Licensed Marks except the limited rights with respect to such Licensed Marks
expressly set forth in this Agreement. All rights of BubbleBall in and to the Licensed
Marks not expressly granted in this Agreement are reserved by BubbleBall. Lessee
acknowledges that except for the limited license to use the Licensed Marks as provided in
the Agreement, Lessee acquires no right to use any mark, device, or trade dress
confusingly similar to or dilutive of the Licensed Marks. Failure of Lesse to abide by
the terms set forth in this Section 9.2 may, at BubbleBall's sole discretion, constitute a
material breach of the Agreement.
9.3. Confusing Marks. Other than as authorized by this Agreement, Lessee shall not
use, register, own, claim to own or claim any right or interest in, any of the Licensed
Marks, and shall not use, register, own, claim to own, or claim any right or interest in,
any service mark, service name, trade name, trademark, domain name, brand, mark,
word, translation, combination, abbreviation, logo or design confusingly similar to or
incorporating any of the Licensed Marks. Without limiting the foregoing, Lessee agrees
that, should Lessee or its affiliates, directly or indirectly, ever use or acquire any
ownership, registration, right, or interest in or to any such service mark, service name,
trade name, trademark, domain name, design or logo incorporating or confusingly similar
to any of the Licensed Marks, before, during or after the Term of this Agreement, Lessee
or its affiliates, as applicable, shall promptly assign and transfer to BubbleBall, without
any additional consideration, all such rights, registrations, and all goodwill associated
therewith, and Lessee agrees that any further use thereof shall be subject to all the terms
and conditions of this Agreement.
9.4. No Tarnishing or Denigration. Lessee shall not tarnish, disparage, denigrate,
degrade, or dilute any of the Licensed Marks, and shall use its best efforts to not to
permit, allow, or cause others through any act, omission, right, or obligation to tarnish,
disparage, denigrate, degrade, or dilute any of the Licensed Marks. Licensee shall not
use any of the Licensed Marks in connection with any activity that is illicit, immoral,
unethical, or would result in the violation of a law by BubbleBall and/or Lessee, or would
be harmful or potentially harmful or damaging to the reputation and goodwill of
BubbleBall and/or Lessee.
9.5. Domain Names. During the Term of this Agreement, Lessee may use domain
names incorporating the Licensed Marks subject to BubbleBall's prior written approval
to be granted or withheld in its sole discretion. Ownership of any domain names
incorporating any of the Licensed Marks registered by Lessee shall be assigned to
BubbleBall at its request. On any website Lessee uses in connection with the use of the
Equipment, Lessee shall include a link to BubbleBall's site, www.bubbleball.us'or such
other site as instructed by BubbleBall, in a form, placement, and size as instructed by
BubbleBall in its sole reasonable discretion.
9.6. Quality Control. Lessee agrees to take such actions as are necessary to preserve
BubbleBall's existing brand and image quality. All services Lessee provides shall meet,
at a minimum, a level of quality comparable to the quality standards generally accepted
for similar quality products and services in the same industry. Lessee specifically
acknowledges that appropriate brand positioning is of paramount importance to
BubbleBall in its management of the Licensed Marks, and that any failure by Lessee to
abide by the terms in this Section 9.6 shall be deemed a material breach of this
Agreement by Lessee and could cause irreparable damage to BubbleBall's business,
which also employs any of the Licensed Marks or related Marks.
10. Assignment and Subleasing.
10.1. By Lessee. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
SECTION 10, LESSEE WILL NOT, WITHOUT THE PRIOR WRITTEN CONSENT
OF BUBBLEBALL, LEASE ANY ITEM OF EQUIPMENT, OR ASSIGN, TRANSFER
OR ENCUMBER IT'S RIGHTS, INTERESTS OR OBLIGATIONS HEREUNDER.
AY ATTEMPTED LEASE IN VIOLATION HEREOF AND ANY ASSIGNMENT,
TRANSFER OR ENCUMBERING BY LESSEE OF ITS' RIGHTS, INTERESTS OR
OBLIGATIONS HEREUNDER IN VIOLATION HEREOF SHALL BE NULL AND
VOID. Lessee may, without BubbleBall's consent, lease any Item of Equipment to
subsidiaries of Lessee in the ordinary course of business. Any such lease or financing
agreement (together with all amendments, modifications and supplements thereto, a
"Subsidiary Equipment Agreement") shall be, and shall expressly state that it is, subject
and subordinate in all respects to this Agreement and the rights of BubbleBall (and any
Assignee) hereunder including BubbleBall's right to possession of the Equipment upon
an Event of Default (as that term is defined below), shall prohibit subleasing, shall not
have a term that may exceed the remaining portion of the Term of such Item of
Equipment and Term of the Agreement, and shall be secured by a first priority security
interest granted by such subsidiary in favor of Lessee, which security interest shall be a
perfected security interest for all Equipment located in the United States. In such event
of a sublease to a subsidiary, Lessee shall promptly deliver to Bubble Ball the original
counterpart of each Subsidiary Agreement and shall provide prompt notice to BubbleBall
(including the name and address of the lessee) or any lease or sublease to or financing
agreement with a third party having a term coterminous with the then current Term of the
Items of Equipment and Term of the Agreement subject to such lease, sublease or
financing agreement. No such leasing by Lessee will reduce any of the obligations of
Lessee hereunder or the rights of BubbleBall (and any Assignee) hereunder, and all of the
obligations of Lessee hereunder shall be and remain primary and shall continue in full
force and effect as the obligations of a principal and not of a guarantor or surety.
10.2. By BubbleBall. BubbleBall shall not sell, assign, transfer or grant a security
interest in all or any part of BubbleBall's rights, obligations, title or interest in, to and
under the Equipment or any Item(s) thereof, this Agreement, and/or any Equipment
Payments payable under this Agreement without Lessee's prior authorization. Lessee
agrees to not unreasonably withhold authorization. In the event, Lessee agrees to an
assignment, Lessee agrees to execute related acknowledgements and other documents
that may be reasonably requested by BubbleBall and Assignee. In the event of
anAssignment in accordance with this Section 10.2, Lessee agrees to pay the Equipment
Payments with respect to the Items) of Equipment covered by such Assignment in
accordance with the Assignment. Notwithstanding any such assignment, all obligations
of BubbleBall to Lessee under this Agreement shall be and remain enforceable by Lessee
against BubbleBall and any Assignee to whom the Assignment has been made.
11. Liens. Lessee will not directly or indirectly create, incur, assume or suffer to exist any
liens, mortgages, encumberances, pledges, charges and security interests (any/each/all a "Lien")
of any kind on or with respect to (a) any Item of Equipment or any part thereof, BubbleBall's
title thereto, or any interest therein or proceeds thereof, or (b) this Agreement or any of
BubbleBall's interests hereunder, except (i) Permitted Liens or (ii) any Lien granted or placed
thereon by Bubbleball, any BubbleBall lender, or any Assignee pursuant to this Section 11 or
any person with a claim against BubbleBall or any Assignee. Lessee, at its own expense, will
promptly pay, satisfy and otherwise take such actions as may be necessary to keep this
Agreement and each Item of Equipment free and clear of, and to duly discharge, eliminate or
bond in a manner satisfactory to BubbleBall and each Assignee, and any such Lien not excepted
above if the same shall arise at any time. Lessee will notify BubbleBall and each Assignee in
writing promptly upon becoming aware of any tax or other Lien (other than any Lien excepted
above) that shall attach to the Equipment or any Item of Equipment, and of the full particulars
thereof. BubbleBall shall indemnify and hold Lessee harmless from and against all suits,
actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fee, and any
and all other costs or fees arising out of any Lien placed on Equipment or an Item of Equipment
by any person with any claim against BubbleBall or any Assignee.
12. Loss, Damage or Destruction.
12.1. Risk of Loss, Damage or Destruction. Except as otherwise provided in this
Agreement, Lessee hereby assumes all risk of loss, damage, theft, taking, destruction,
confiscation, requisition or commandeering, partial or complete, of or to each item of
Equipment from the date of this Agreement, and continuing until such Item of Equipment
has been returned to BubbleBall in accordance with the provisions of Section 4 hereof.
Lessee agrees that no occurrence specified in the preceding sentence shall impair, in
whole or in part, any obligation of Lessee under this Agreement, including, without
limitation, the obligation to pay Equipment Payments.
12.2. Payment Upon an Event of Loss. "Event of Loss" with respect to an Item of
Equipment means (a) the loss of such Item of Equipment or any substantial part thereof,
or (b) the loss of the use of such Item of Equipment due to theft or disappearance for a
period in excess of forty-five (45) days during the Term, or existing at the expiration or
earlier termination of the Term, or (c) the destruction, damage beyond repair, or rendition
of such Item of Equipment or any substantial part thereof permanently unfit for normal
use for any reason whatsoever, or (d) the condemnation, confiscation, seizure, or
requisition of use or title to such Item of Equipment or any substantial part thereof by any
governmental entity. If an Event of Loss occurs with respect to an Item of Equipment
during the term thereof, Lessee shall give BubbleBall prompt written notice thereof and
shall, unless such condition is covered by any warranty of BubbleBall under this
Agreement, pay to BubbleBall the sum of (a) all unpaid payments payable for such Item
of Equipment for the entire Term, plus (b) the reasonable value of such Items of
Equipment. Any payments received at any time by BubbleBall or by Lessee from any
insurer or other party (except Lessee) as a result of the occurrence of such Event of Loss
will be applied in reduction of Lessee's obligation to pay the foregoing amounts, if not
already paid by Lessee, or, if already paid by Lessee, will be applied to reimburse Lessee
for its payment of such amount, unless an Event of Default shall have occurred and be
continuing. Upon payment in full of all such amounts due, (a) the obligation of Lessee to
pay hereunder with respect to such Item of Equipment shall terminate and the Term of
such Item shall terminate, and (b) BubbleBall shall renounce all title and rights to such
Item of Equipment.
12.3. Application of Payments Not Relating to an Event of Loss. Any payments
(including, without limitation, insurance proceeds) received at any time by BubbleBall or
Lessee from any other party with respect to any loss or damage to any Item or Items of
Equipment not constituting an Event of Loss, will be applied directly in payment of
repairs or for replacement of property in accordance with the provisions of Sections 7 and
8 hereof, if not already paid by Lessee, or if already paid by Less and no Event of Default
shall have occurred and be continuing, shall be applied to reimburse Lessee for such
payment, and any balance remaining after compliance with provisions of said Sections
with respect to such loss or damage shall be retained by Lessee. If any event of Default
shall have occurred and is continuing, all payments hereunder shall be paid to BubbleBall
or its Assignee in accordance with Section 12.2 hereof.
13. Insurance. Lessee may cause to be carried and maintained, at its sole expense, with
respect to each Item of Equipment at all times during the Term thereof and for the geographic
area in which such Item is at any time located and until such Item of Equipment has been
returned to BubbleBall pursuant to Section 4 hereof, (a) physical damage insurance (including
theft insurance) insuring against all risks of physical loss or damage to the Equipment ("Property
Insurance"), and/or (b) insurance against liability for bodily injury, death and property damage
resulting from the use and operation of the Equipment ("Liability Insurance").
14. Warranties.
14.1. Defective Equipment; Assignment of Manufacturer Warranties. So long and only
so long as Event of Default shall not have occurred and be continuing, and so long and
only so long as the Equipment shall be subject to this Agreement and Lessee shall be
entitled to possession of the Equipment hereunder, BubbleBall authorizes Lessee, at
Lessee's expense, to assert for BubbleBall's account, all rights and powers of BubbleBall
under any manufacturer's, vendor's or dealer's warranty on the Equipment or any part
thereof and BubbleBall agrees to use reasonable efforts at Lessee's expense to assist
Lessee in obtaining the benefits of such warranties; provided, however, that Lessee shall
indemnify, protect, save, defend and hold harmless BubbleBall from and against any
claims, and all costs, expenses, damages, losses and liabilities incurred or suffered by
BubbleBall in connection therewith, as a result of, or incident to, any action by Lessee
pursuant to the foregoing authorization.
14.2. Additional Warranty. In addition to the manufacturer warranty, BubbleBall shall
provide the additional warranty to Lessee as described on Schedule A hereto.
14.4 NO ADDITIONAL BUBBLEBALL WARRANTIES. EXCEPT AS
OTHERWISE PROVIDED IN SECTION 14 (WARRANTIES) AND ON SCHEDULE
A, BUBBLEBALL HEREBY LEASES THE EQUIPMENT FOR LESSEE AS -IS,
WHERE -IS, WITH ALL FAULTS AND IN WHATEVER CONDITION IT MAY BE
IN, AND EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION OR
WARRANTY, EITHER EXPRESSED OR IMPLIED, AS TO THE DESIGN,
CONDITION, QUALITY, CAPACITY, MERCHANTABILITY, DURABILITY,
SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF, OR ANY
OTHER MATTER CONCERNING, THE EQUIPMENT. LESSEE HEREBY WAIVES
ANY CLAIM (INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE
LIABILITY IN TORT OR INFRINGEMENT) IT MIGHT HAVE AGAINST
BUBBLEBALL FOR ANY LOSS, DAMAGE (INCLUDING INCIDENTAL OR
CONSEQUENTIAL DAMAGE) OR EXPENSE CAUSEED BY THE EQUIPMENT OR
BY LESSEE'S LOSS OF USE THEREOF FOR ANY REASON WHATSOEVER,
INCLUDING BY NOT LIMITED TO COMPLIANCE WITH LAWS (WHICH TIEMS
OF EQUIPMENT, LESSEE ACKNOWLEDGES, WERE SELECTED BY LESSEE ON
THE BASIS OF ITS OWN JUDGMENT WITHOUT RELIANCE ON ANY
STATEMENTS, REPRESENTATIONS, GUARANTIES OR WARRANTIES MADE
BY BUBBLEBALL).
15. Confidentiality. Lessee understands that in connection with the equipment provided
hereunder, BubbleBall may supply Lessee with confidential business information,
regardless of whether marked or described as such. This confidential information
includes, without limitation, information regarding BubbleBall's business and/or
operation of BubbleBall activities that BubbleBall provides or otherwise makes available
to the Lessee, BubbleBall intellectual property, and BubbleBall ideas. Lessee agrees that
all confidential informationwill be treated in the same fashion that Lessee treats its own
confidential information, but in no event will Lessee treat such information with less than
a commercially reasonable standard of care. Lessee will not disclose, communicate, or
otherwise permit the transfer of such confidential information to any third parties unless
Lessee obtains the prior written consent of BubbleBall, or unless such information has
become public or generally known by means other than the breach of this Agreement.
Lessee will not use such confidential information for any purpose other than the purposes
contemplated by this Agreement and shall not use any such confidential information after
the termination of this Agreement; provided, however, that Lessee may disclose
confidential information to the extent necessary as legally required by law, legal process,
or a governmental entity with competent jurisdiction. Immediately upon BubbleBall's
request, and in any event no later than the termination or expiration of this Agreement,
Lessee will return all materials containing and/or embodying BubbleBall's confidential
information.
16. Events of Default. Any of the following events shall constitute an Event of Default:
(a) Lessee shall fail to make any payment due under this Agreement within thirty
(30) days after the same is due and payable; or
(b) Lessee or BubbleBall shall fail to perform or observe any material covenant,
condition, or agreement to be performed or observed by it under this Agreement, and such failure
shall continue unremedied fort thirty (30) days after written notice to the defaulting party
specifying such failure and demanding the same to be remedied; or
(c) Lessee or BubbleBall shall become insolvent; or Lessee or BubbleBall or any
subsidiary thereof shall make an assignment for the benefit of creditor or consent to the
appointment of a trustee or receiver; or a trustee or receiver shall be appointed for Lessee or
BubbleBall or any subsidiary thereof or for a substantial part of the property of Lessee or
BubbleBall or any subsidiary thereof without its consent and shall not be dismissed for a period
of sixty (60) days; or any petition for the relief, reorganization or arrangement of Lessee or
BubbleBall or any subsidiary thereof or any other petition in bankruptcy or for the liquidation,
insolvency or dissolution of Lessee or BubbleBall or any subsidiary thereof, shall be filed by or
against Lessee or BubbleBall or any subsidiary thereof and, if filed against Lessee or BubbleBall
or any subsidiary thereof, shall be consented to or be pending and not dismissed for a period of
sixty (60) days, or an order for relief under any bankruptcy or insolvency law shall be entered by
any court or governmental entity or competent jurisdiction with respect to Lessee or BubbleBall
or any subsidiary thereof; or any execution or writ or process shall be issued under any action or
proceeding against Lessee or BubbleBall or any subsidiary thereof whereby any of the
Equipment may be taken or restrained and such execution or writ or process is not stayed within
sixty (60) days; or Lessee's or BubbleBall's corporate existence shall cease; or
(d) any representation, warranty, statement or certification made by Lessee or
BubbleBall under this Agreement, or pursuant hereto shall prove to be untrue or incorrect when
made (or deemed made) except for inaccuracies or misstatements when made (or deemed made)
that would not have a material effect on Lessee's or BubbleBall's ability to fulfill its obligations
under this Agreement.
17. Remedies Upon Default. Upon the occurrence of any Event of Default and at any time
thereafter as long the same shall be continuing, BubbleBall or Lessee may:
(a) terminate or cancel this Agreement, without prejudice to any other remedies of
BubbleBall or Lessee hereunder, with respect to all or any Item of Equipment. In the event of a
termination or cancellation, Lessee shall promptly comply with Sections 4 and 5 of this
Agreement; and/or
(b) exercise any other right or remedy which may be available to it under Applicable
Law.
In addition, the defaulting party shall be liable for all costs and expenses, including reasonable
attorneys' fees and costs, incurred by the non -defaulting parry by reason of the occurrence of any
Event of Default or the exercise of the non -defaulting party's remedies with respect thereto,
including all reasonable costs and expenses incurred in connection with the return of the
Equipment in accordance with Section 4 hereof or in placing the Equipment in the condition
required.
18. BubbleBall's Right to Perform for Lessee. If Lessee fails to perform or comply with any
of its agreements contained herein, BubbleBall may itself, after notice to Lessee, make such
payment or perform or comply with such agreement, and the amount of such payment and the
amount of the reasonable expenses of BubbleBall incurred in connection with such payment of
the performance of or compliance with such agreement, as the case may be, together with the
interest thereof at the rate specified in Section 5.4 hereof, shall, if not paid by Lessee to
BubbleBall on demand, be payable to BubbleBall hereunder; provided however, that no such
payment, performance or compliance by BubbleBall shall be deemed to cure any Event of
Default hereunder.
20. Notices. All notices and other communications in connection with this Agreement shall
be in writing and shall be considered given as follows: three (3) days after being deposited in the
United States mail, with postage prepaid to the other party at the addresses provided below or
such other address provided subsequent to the execution of this Agreement.
If to BubbleBall:
BubbleBall,Inc.
37 West 39`s Street, Suite 904
New York, NY 10018
Email: sales@bubbleball.us
Attention: Mandad Taheri, CEO
If to Lessee:
City Manager
221 East Main Street
Round Rock, TX 78664
TOS O
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between BubbleBall and Lessee.
21. Additional Lease Benefits. In addition to the obligations and benefits otherwise
described in this Agreement, during the Term and unless an Event of Default occurs and/or
continues, BubbleBall shall to the extent reasonable:
(a) subject to the manufacturer's warranty for the Equipment, replace defective
Equipment at no additional cost to Lessee beyond shipping and handling;
(b) provide, at BubbleBall's sole discretion as to the amount and nature thereof, local
marketing and promotions of BubbleBall and its relationship with Lessee;
(c) provide within BubbleBall's website a link to Lessee's web page;
(d) provide customer referrals from BubbleBall digital web properties and
applications;
(e) provide know how and research on new games and revenue generating activities;
and
(f) provide Lessee with first access to new product lines and enhancements.
22. Lessee's Renewal of Item of Equipment. If no Event of Default shall have occurred and
be continuing and this Agreement shall not have been earlier terminated, Lessee shall be entitled,
at its option at the end of the Initial Term of the Item of Equipment, to renew the term of an
Item(s) of Equipment subject to this Agreement. Each Renewal Term shall be for the same
duration (in months) as the original Term. The first Renewal Term with respect to each such
Item of Equipment will commence at the expiration of the Terms of such Item, and each
succeeding Renewal Term will commence at the expiration of the next preceding Renewal Term.
All of the provisions of this Agreement shall be applicable during each Renewal Term for each
such Item of Equipment during each Renewal Term for which Lessee exercises its renewal
option therefor in an amount equal to the payment required for such Item of Equipment during
the Term. If, with respect to any Renewal Term, Lessee intends to not exercise its renewal
option for the Item of Equipment, Lessee shall give written to BubbleBall to such effect at least
five (5) days prior to the expiration of the then current Term and/or Renewal Term as the case
may be of the Item(s) of Equipment whose Initial Term first expires hereunder. If Lessee fails to
give such written notice to BubbleBall with respect to any of said Renewal Terms, it shall be
conclusively presumed that Lessee has irrevocably elected to exercise its renewal option with
respect to such Item(s) of Equipment for said Renewal Term. In the event Lessee elects not to
exercise said renewal option with respect to any or all Items of Equipment, each Item of
Equipment not renewed shall be returned to BubbleBall in accordance with the provisions of
Section 4 hereof and until each such Items has been so returned or delivered Lessee shall
continue to pay BubbleBall the Equipment Payment for each such Item as specified in Section 4
hereof.
23. Indemnification. Lessee hereby agrees to defend, indemnify, and hold BubbleBall
harmless from and against any claim by an third party for which Lessee may be legally liable
under Texas State Laws from (i) Lessee's use, and/or permitting third party use of the equipment
in any manner, and/or (ii) any negligent, reckless, or intentional act of Lessee; and/or Lessee's
breach of any of its representations, warranties, covenants, and/or other obligations provided in
this Agreement. BubbleBall acknowledges and agrees that Lessee's obligation under this
provision is subject to the limits of liability contained in Lessee's contract of insurance and the
Texas Tort Claims Act, Title 5, Sections 101.001 et seq. Lessee does not agree to waive any and
all defenses provided under the Texas Tort Claims Act and Texas Land Use Act, Title 4 Section
75.001 et seq.
24. Disputes. 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.
The terms of this Agreement shall be governed by and construed in accordance with the laws and
court decisions of the State of Texas
25. Miscellaneous.
25.1 Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating or diminishing BubbleBall's rights under the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction. All of the covenants, conditions, and obligation contained in this Agreement
shall be binding upon and inure to the benefit of the respective permitted successors and
assigns of BubbleBall and Lessee. This Agreement, and each related instrument,
document, agreement and certificate, collectively constitute the complete and exclusive
statement of terms of the agreement between BubbleBall and Lessee with respect to the
acquisition and leasing of the Equipment, and cancel and supersede any and all prior oral
or written understanding with respect thereto.
25.2 Except as otherwise expressly provided and subject to the rights assigned by
Lessee and/or BubbleBall, neither this Agreement, nor any terms thereof may be
amended, supplemented, waived or modified without the written agreement and consent
of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed
by their duly authorized representatives as of the date first above written.
BUBBLEBALL:
BubbleBall
Name: Mt4o+p %a�lF_2j
Title: C
LESSEE:
City of Round Rock, Texas
By:
Name:`��q�,�1/fLt4E/
Title:
Attest:
By:
Sara L. White, City Clerk
For Cityl, prove as to Form:
By. .�
Steppi L. Sheets, City Attorney
Schedule A: Equipment
36 $4,500 s0 36
Region
Round Rock, Texos
ADDITIONAL WARRANTY
In addition to the manufacnner warranry provided in connection with One Equipment BubbleBall shall, at no cost to Lessee (older then shipping end handling) n,iace Equipment
semoed to BubblcBell by Lessee, at its own expense, that has ban damaged through normal and exponnd use ofauch Equipment. Notwithstanding the foregoing, in an event
shall BubbleBell have any obligation to replace Items of Emiomrnt mom often than Pn vidd above.
a If ROYALTY box is checked, the Royalty under Section 5 of this Agtcement shell be the pemenmgc identified. Any amounts Baal below the loyalty on, additional monthly
Eatome or Payments due on the Enwpment.
ToW RequOed
Total Monthly
Maximum No. of
Maximum No. of
Item of Equipment
Quantity
Delivery Dale
Date of End of Term
Equipment
Repinaemenl
Replacement
Deposit
Payment
Items per Month
Items per Term
LIJ Royally
33%
11MSMALLPVC
SO
SO
0
BALLS
LSM MEDIUM PVC
SO
50
0
BALLS
1.8M LARGE PVC
SO
SO
0
BALLS
11M SMALL TPU
50
SO
0
BALLS
I SM MEDIUM TPU
g
]'ovcmMr 1, 2015
Octobe 30,2016
S1.954
SO
_
8
BALLS
1.8101 LARGE TPU
g
November 1, W15
Octobor 30, 2016
52,332
50
_
8
BALLS
BAGS
16
November 1. 2015
Ocmbm30,2016
S134
S0
1
16
PUMPS
4
Novernba 1, 2015
Octobn30,2016
S80
SO
n
4
36 $4,500 s0 36
Region
Round Rock, Texos
ADDITIONAL WARRANTY
In addition to the manufacnner warranry provided in connection with One Equipment BubbleBall shall, at no cost to Lessee (older then shipping end handling) n,iace Equipment
semoed to BubblcBell by Lessee, at its own expense, that has ban damaged through normal and exponnd use ofauch Equipment. Notwithstanding the foregoing, in an event
shall BubbleBell have any obligation to replace Items of Emiomrnt mom often than Pn vidd above.
a If ROYALTY box is checked, the Royalty under Section 5 of this Agtcement shell be the pemenmgc identified. Any amounts Baal below the loyalty on, additional monthly
Eatome or Payments due on the Enwpment.
SCHEDULE B
TRADEMARKS
BUBBLEBALLTM
OFFICIAL BUBBLEBALL PARTNER TM
BUBBLEBALL APPROVED TM
OI� 01%
BubbleBall'M
City of Round Rock
ROUND ROCK
TEXAS Agenda Item Summary
Agenda Number:
Title: Consider executing an Equipment Leasing and Revenue Sharing
Agreement with BubbleBall, Inc. for the lease of recreational equipment
for use at the Round Rock Sports Center.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 10/2/2015
Dept Director: Chad McDowell, General Services Director
Cost:
Indexes:
Attachments: Agreement, LAF
Department: General Services Department
Text of Legislative File CM -2015-915
Consider executing an Equipment Leasing and Revenue Sharing Agreement with
BubbleBall, Inc. for the lease of recreational equipment for use at the Round Rock
Sports Center.
With this agreement we are in Partnership with BubbleBall, Inc. for lease of recreation
equipment.
Staff Recommends Approval
Cost: $4,500.00 yearly cost
City of Round Rock Page t Printed on 10/1/2015