CM-08-07-186DATE:
SUBJECT:
ITEM:
June 27, 2008
City Manager Approval - July 11, 2008
Action authorizing the City Manager to execute Host Partner
Agreement with K1 International, L.L.C. for 2008 Round Rock
Spikefest.
Department:
Staff Person:
Justification:
Convention and Visitors Bureau
Nancy Yawn, Director, Convention and Visitors Bureau
The Convention and Visitors Bureau bid on and was awarded the opportunity to
host the 2008 Round Rock Spikefest. This event supports our tourism industry,
as well as our "Sports Capital of Texas" branding campaign.
Funding:
Cost: $5,000.00
Source of funds: Hotel Occupancy Tax
Outside Resources: N/A
Background Information:
Although this is the Convention and Visitors Bureau's first time to host Spikefest,
it is not the first time to work with K1 International, L.L.C. There have been three
Kick -It 3v3 Regional Playoffs over the last three years and the 2008 Round Rock
Spikefest is expected to be an event with a similar return on investment.
Public Comment: N/A
HOST PARTNER AGREEMENT
THIS AGREEMENT (the "Agreement") is executed effective as of date of signing (the
"Effective Date") by and between K1 INTERNATIONAL, L.L.C. ("K1"), having offices at
Post Office Box 170067, Arlington, Texas 76003, 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/Host's desire to become the "Official Host City Partner" of
the 2008 Round Rock Spikefest (the "Event") in Round Rock, Texas, on or about July 19
through July 20, 2008.
NOW, THEREFORE, in consideration of the premises herein set forth and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, K1
and City/Host agree as follows:
1. Designation and Rights as the Official Host City Partner
(a) City/Host shall be designated as the exclusive "Official Host City
Partner" as part of the Event, and receive designation as such in all print
collateral, print and TV media, verbal mention in on -air radio spots, and
website inclusion. K1 represents and warrants that it has the right to
grant to City/Host the right to use such designations.
(b)
K1 and City/Host acknowledge that each recognizes the value of inherent
attributes of the goodwill associated with each other's respective
trademarks, trade names, service marks and logos. K1 and City/Host
shall not apply for and shall not obtain any state or federal service mark
or trademark registration or any foreign service mark or trademark that
incorporates or uses the trademark, trade name, service mark or logo of
the other without the prior express written consent of the other.
2. Kl's Rights and Responsibilities
(a) K1 shall have the right to receive and retain, in accordance with
conditions recited herein, all team entry fees from the Event.
(b)
00140444/jkg
0130.0813
C M -
0---131-15(40
Kl shall obtain and maintain in full force and effect a general liability
insurance policy covering the Event, and said insurance policy shall
fulfill all requirements of the City of Round Rock, Texas as to amount
and coverage. A copy of such insurance certificate shall be provided to
City/Host in advance of the event. K1 shall, upon the direction of
City/Host, include City and designated sponsors as additional insureds on
such insurance policy; and if such addition results in incremental cost to
Kl, said cost may be passed through at actual cost to City/Host.
(c) K1, at its own expense, shall have the sole responsibility for establishing,
organizing, and operating the Event, including but not limited to
performing the following functions:
i. Design and print event registration forms;
ii. Manage online registration function, and Spikefest website;
iii. Provide assistance to City/Host in design of Host Sponsor
packages, if requested by City/Host;
iv. Provide assistance to City/Host in development of Event promotion
ideas, if requested by City/Host;
v. Manage mailings to prospective participants;
vi. Manage toll-free inquiry telephone lines for prospective participants
during normal business hours;
vii. Provide all equipment, materials, supplies, goods, and services
necessary for Event competition, including contracting with a Event
referee assignor and paying Event referees;
viii. Provide assistance to City/Host with setup of on-site Host Village
facilities and sponsor signage, in general accordance with Kl event
footprint map;
ix. At its cost, provide each player with one premium T-shirt bearing
sponsor logos (as furnished to Kl by City/Host);
x. Provide awards to each player on each first place team, and to each
player on each second place team;
xi. Manage all daily operations and on-site logistics for the entire
Event; and
xii. Provide professional Event staff, including but limited to a Event
Director for the event.
xiii. Contract with a volunteer and/or paid workforce to staff the
scoreboard area, information area, and trash detail.
xiv. At its cost, pay for trash pick-up, a 20 -yard dumpster, and be
responsible for removing same.
xv. At its cost, pay for additional portable toilets, if requested by
City/Host.
xvi. At its cost, provide ten (10) parking attendants all day each day.
xvii. At its cost, pay for overnight security.
3. Fees and Costs
As consideration for the rights and benefits granted herein, and provided that Kl is
in compliance with all terms of this Agreement, City/Host shall pay to Kl the
following:
(a) Rights Fee of Five Thousand and No/100 Dollars ($5,000.00)
2
Such rights fee shall cover the provision by K1 of all of the above -
delineated site costs and associated costs. The parties expressly agree
that, should K1 request lights for the fields, K1 shall be responsible for
payment of $18.00 per hour for use of said lights.
The rights fee of $5,000.00 shall be due and payable by City/Host to K1
as follows: $5,000.00 shall be due and payable thirty (30) days prior to
the event.
(b) Other Costs
City/Host shall be responsible for the costs associated with the premiums
or other expenses related to City/Host's on-site promotions. City/Host
shall also be responsible for costs associated with the production of
City/Host's own promotional materials and/or prizes to be distributed on-
site. City/Host shall endeavor to ensure that all City/Host advertising and
promotion complies with all applicable laws, rules and regulations.
City/Host shall be responsible for the costs associated with concessions.
City/Host shall be responsible for providing an informational page for the
Event on City/Host's website, and K1 shall be responsible for providing a
link to the registration site for online processing.
City/Host shall be responsible for providing, at a favorable rate, host
hotel(s) to accommodate all traveling teams for the Event. Additionally,
City/Host shall provide two (2) hotel rooms for four (4) nights for the
Event road crew, and same shall be at no cost to Kl.
(c) In Kind/Trade Costs
City/Host shall be responsible for securing venue for the Event free of
charge to Kl, in addition to securing other Event -related operational
items free of charge to K1. The parties expressly acknowledge that the
total In Kind/Trade value shall be Five Thousand and No/100 Dollars
($5,000.00).
4. Inclement Weather
The Event is designated "Rain or Shine" and may be conducted in adverse
weather conditions (excluding lightning). The final decision with respect to
playing conditions dictating weather delays and/or cancellations shall be within
the sole discretion of the City of Round Rock Parks and Recreation Department
Director or his/her designee.
3
5. Terms
Subject to the recited terms and provisions of this Agreement, the term of this
Agreement shall commence immediately upon the execution hereof by both
parties and shall end by operation of its own terms after completion of the Event
on or about July 21, 2008.
6. Representations and Warranties
Each party hereto represents and warrants to the other party as follows:
(a) It has the full right and legal authority to enter into and fully perform this
Agreement in accordance with the terms and conditions hereof.
(b) This Agreement, when executed, will be its legal, valid and binding
obligation enforceable against it in accordance with the terms and
conditions hereof, except to the extent that enforcement hereof may be
limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally.
(c) The execution, delivery and performance of this Agreement does not and
will not violate or cause a breach of any other agreements or obligations to
which it is a party or by which it is bound, and no approval or other action
by any other governmental authority or agency, or any other individual or
entity, is required in connection herewith.
(d) It has the right and title to use and grant the right for others to use its
respective Marks, as provided herein.
(e) Each of the foregoing representations, warranties and covenants shall be
true at all times during the term hereof.
7. Marks and Advertising Approval
(a) All proposed uses of the Event Marks, Host Marks, and Sponsor Logos in
connection with the sponsorship benefits hereunder, and all promotions to
be conducted by City/Host, shall be subject to K1 's prior written
approval, such approval not to be unreasonably withheld. City/Host shall
submit all such materials to K1 in mechanical, script or pre -produced
form for Kl's approval. K1 shall notify City/Host of its approval or
disapproval within ten (10) business days of submission of the proposed
use; however, should K1 substantially amend or modify the submission,
the revised submission shall be deemed a new submission to which a new
ten (10) business day period shall be applicable. In the event that K1 fails
4
to approve or disapprove of a submission within the prescribed review
period, City/Host agrees to notify K1 of such failure and if Kl fails to
promptly approve such submission, such submission shall be deemed
approved.
(b) K1 shall obtain City/Host's prior written approval, which approval shall
not be unreasonably withheld, regarding any and all materials produced
hereunder which include City/Host's Trademarks, Service Marks, names
or logos (collectively "Host Marks"). K1 shall submit all such material in
mechanical, script or pre -produced form for City/Host's approval.
City/Host agrees to notify Ki of its approval or disapproval within ten
(10) business days of submission of the proposed use; however, should
City/Host substantially amend or modify the submission, the revised
submission shall be deemed a new submission to which a new ten (10)
business day period shall be applicable. In the event that City/Host fails
to approve or disapprove of a submission within the prescribed review
period, K1 agrees to notify City/Host of such failure and if City/Host fails
to promptly approve such submission, such submission shall be deemed
approved.
(c) The parties agree that, after K1 is in receipt of City/Host's approval of
marketing materials, K1 may modify such materials to "customize" them;
provided, however, that the use of the Host Marks and the marketing
materials may not be materially altered in each case without the prior
written approval of City/Host in accordance with this Section 7.
8. Use and Ownership of Marks
The term "Spikefest" and its associated Marks are owned by K1. K1 and
City/Host hereby agrees to use the Marks of the other only as set forth herein and
only for the stated 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 Event Mark or City/Host Mark. Accordingly, in the
event of any unauthorized use of any Event Mark or City/Host Mark by the other
party (or a party authorized by such other party), each party shall, in addition to
any other contractual, legal and equitable rights and remedies as may be available
to it, have, during the term hereof and after the termination or expiration of this
Agreement, the right to take such reasonable steps as are necessary to prevent any
further unauthorized use of any such Event Mark or City/Host Mark, without
being required to prove damages or furnish a bond or other security, including
5
petitioning a court of competent jurisdiction for a temporary restraining order, a
preliminary or permanent injunction, and/or a decree for specific performance.
9. 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 Kl or
City/Host. K1 is an independent contractor and is not City/Host's employee.
Neither party shall have any right whatsoever to obligate or bind the other party in
any manner whatsoever, except as expressly set forth herein. Neither party has
authority to enter into contracts or relationships or to perform acts as agent for the
other party.
10. 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.
11. 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 K1: Mike Kruizinga
K1 International, LLC
Post Office Box 170067
Arlington, TX 76003
817-557-3301 (Office)
214-850-3834 (Cell)
866-329-5518 (Fax)
To City/Host: Assistant City Manager
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Each party shall have the obligation to notify the other of any change in address for these
notice purposes.
•
12. Termination and Cancellation
(a) If the other party materially defaults in the performance of this Agreement,
and if such default is not cured within thirty (30) days following written
6
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 of such termination.
(b) City/Host may terminate this Agreement, in whole or in part, for
convenience and without cause, at any time upon thirty (30) days' written
notice to the other party.
(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/Host by K1 prior to termination or cancellation. In the event that
City/Host has, as of the effective date of termination or cancellation, paid
K1 more of the Rights Fee than required by this section and this
Agreement, then and in that event K1 shall be obligated to promptly
refund the full difference to City/Host.
13. Indemnification
To the extent allowed by law, City/Host hereby agree to hold harmless K1,
and its affiliates and subsidiaries, and the agents, representatives, officers,
directors, employees and shareholders of the foregoing, from and against any
and all claims, suits, demands, damages, causes of action, expenses and
liabilities of any kind or character (including reasonable attorneys' fees and
costs) related to or arising out of, whether directly or indirectly, (i) City/Host's
intentional or negligent actions or omissions under this Agreement, including but
not limited to trademark infringements based upon K1 '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, K1 hereby agree to hold harmless City/Host,
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
7
costs) related to or arising out of, whether directly or indirectly, (i) K1 's
intentional or negligent actions or omissions under this Agreement, including but
not limited to trademark infringements based upon City/Host's use of K1 Marks
as approved in accordance with this Agreement, contests, sweepstakes or other
activities conducted by K1 pursuant to this Agreement, and any product
demonstrations or products distributed by Kl pursuant to this Agreement and (ii)
any breach of this Agreement by K1.
Each party will promptly notify the other of any claim. The terms, provisions and
conditions of this Section 13 shall survive the expiration or earlier termination of
this Agreement.
14. Entire Agreement
This Agreement constitutes the entire agreement between City/Host and K1 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.
15. Limitation of Liability
Notwithstanding anything contained herein to the contrary, in no event shall either
party be liable to the other party for any consequential, incidental, punitive,
special, or indirect damages of any kind.
16. Confidentiality
The parties hereto expressly acknowledge that City/Host is a Texas municipality
and, as such, is subject to and will obey the Texas Open Records Act and other
related statutes.
Notwithstanding the foregoing, the parties hereto agree to maintain in confidence
the terms and conditions of this Agreement and any other information disclosed
that such disclosing party has reasonably designated as confidential except for
disclosures to the parties' respective employees, agents, or 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.
8
17. Execution
This Agreement may be executed in counterparts and shall be deemed executed
and binding upon signature by both parties hereof.
18. Governing Law
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 Williamson County,
Texas. This Agreement shall be governed by and construed in accordance with
the laws and court decisions of the State of Texas.
19. 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 Agreement 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.
20. No Waiver
No failure or delay 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 of 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.
21. Beadings
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.
22. Survival
All rights and obligations that accrue pursuant to this Agreement prior to the
expiration or termination of this Agreement, as the case may be, and the
representations and warranties made in and the indemnifications provided
9
pursuant to this Agreement shall survive the expiration or earlier termination of
this Agreement.
23. Force Majeure
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 WHEREOF, the parties hereby execute this Agreement as of the date or
dates indicated below.
Kl International, LLC
By:
Name:
Title:
Date:
4*
'6/114/IC Jri4C'Pb‘
City of Round Rock, Texas
By:
Name:
Title:
Date:
K 1 ►Luse
'Nla+Nac,P.(
*1- t -nt,
For City, Attest:
By:
Sara L. White, City Secretary
For City,
By:
roved as to Form:
Steph
10
L. Sheets, City A orney
A