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CM-2014-417City of Round Rock Agenda Item Summary Agenda Number: Title: Consider authorizing a Host Partner Agreement between the City and Northern American Table Tennis for the 2014 4 -Star JOOLA Southern Open. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 5/16/2014 Dept Director: Nancy Yawn Cost: $7,000.00 Indexes: Attachments: CMA - JOOLA Southern Open 2014, North American Table Tennis Host Partner Agreement - 1, North American Table Tennis Host Partner Agreement - 2 Department: Convention and Vistors Bureau Text of Legislative File CM -2014-417 Host agreement with Northern American Table Tennis to host the 2014 4 -Star JOOLA Southern Open at the Round Rock Sports Center. Staff reccomends approval. City of Round Rock Page 1 Printed on 5/7/2014 CONTRACT APPROVAL FORM FOR CITY MANAGER ACTION Required for Submission of Specific City Manager Items Department Name: CVB Project Mgr/Resource: Nancy Yawn cm City Manager Approval CMA Wording Project Name: Host Partner Agreement ContractorNendor: Northern American Table Tennis Consider authorizing a Host Partner Agreement between the City and Northern American Table Tennis for the 2014 4 -Star JOOLA Southern Open. Approval XpEmployee EE Bowden Date May 2, 2014 Notes/Comments HOST PARTNER AGREEMENT THIS AGREEMENT (the "Agreement") is executed effective as of date of signing (the "Effective Date") by and between NORTH AMERICAN TABLE TENNIS ("NATT"), having offices at 15800 Crabbs Branch Way, Rockville, Maryland 20855, 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 an "Official Host Partner" of the 2014 4 -STAR JOOLA SOUTHERN OPEN (the "2014 Southern Open" or the "event") in Round Rock, Texas, on or about September 6 through September 7, 2014, to be held at the Round Rock Sports Center ("Sports Center") owned and operated by the City/Host and located at 2400 Chisholm Trail Drive, Round Rock, Texas 78681. 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, NATT and City/Host agree as follows: 1. Designation and Rights as Official Host Partner (a) City/Host shall be designated as an "Official Host Partner" for the 2014 Southern Open. (b) As "Official Host Partner," City/Host will have the exclusive rights to sell and/or otherwise secure sponsors and sponsorships for the 2014 Southern Open. (c) City/Host acknowledges that NATT has granted and/or may grant to other National Corporate Sponsors, National Partners, or Licensees the use of the NATT's Marks (defined herein as NATT's trademarks, trade names, service marks and logos) in the promotion of NATT's goods or services. Said licensing and merchandising relationships shall be on a local, regional, and national basis. (d) NATT 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. NATT 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. NATT's Rights and Responsibilities (a) NATT shall have the right to receive and retain, in accordance with conditions recited herein, all team entry fees from the 2014 Southern Open. (b) NATT shall obtain and maintain in full force and effect a general liability insurance policy covering the 2014 Southern Open, and said insurance 00295792/ss2 CM -2014-417 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. NATT 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) NATT, at its own expense, shall have the sole responsibility for establishing, organizing, and operating the 2014 Southern Open, including but not limited to performing the following functions: i. Design, print and distribute event registration forms; ii. Design, establish, update, and provide upkeep for event website; iii. Provide assistance to City/Host in design of 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. Provide staff for event operation, including umpires; vi. Provide all equipment needed to conduct the event; vii. Provide a manager to supervise set-up and breakdown of the event venue; viii. Provide and maintain trophies and prize money for the event; and ix. Be responsible for t -Shirt design and costs of T-shirts for participants. At its cost, provide each player with one premium T- shirt bearing sponsor logos (as furnished to NATT by City/Host). 3. Fees and Costs As consideration for the rights and benefits granted herein, and provided that NATT is in compliance with all terms of this Agreement, City/Host shall pay to NATT the following: (a) Rights Fee of Seven Thousand and No/100 Dollars ($7,000.00) Such rights fee shall cover the provision by NATT of staffing and other event costs as set forth in Section 2. The rights fee of $7,000.00 shall be due and payable by City/Host to NATT as follows: $3,000.00 shall be due and payable thirty (30) days prior to the event, and the remaining $4,000.00 shall be paid by City/Host to NATT in U.S. funds by City of Round Rock check immediately prior to the beginning of the event. (c) 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 to be distributed on-site. 2 City/Host shall endeavor to ensure that all City/Host 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 immediately upon the execution hereof by both parties and shall end by operation of its own terms after completion of the event on September 7, 2014. 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 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 governmental authority or agency, or any other individual or entity, is required in connection herewith. (d) Each of the foregoing representations, warranties and covenants shall be true at all times during the term hereof. 6. Use and Ownership of Marks NATT and City/Host hereby agrees to use the Marks of the other only as set forth 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 NATT Mark or City/Host Mark. Accordingly, in the event of any unauthorized use of any NATT 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 3 further unauthorized use of any such 2014 Southern Open Mark or City/Host 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 for 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 NATT or City/Host. NATT 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. 8. 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 NATT: Wendy Lee 15800 Crabbs Branch Way Rockville, MD 20855 To City/Host: Steve Norwood 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. 10. 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 notice of such default to the defaulting party, then and in that event either 4 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 NATT prior to termination or cancellation. In the event that City/Host has, as of the effective date of termination or cancellation, paid NATT more of the Rights Fee than required by this section and this Agreement, then and in that event NATT shall be obligated to promptly refund the full difference to City/Host. 11. Indemnification To the extent allowed by law, City/Host hereby agree to hold harmless NATT, 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 NATT'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, NATT 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 costs) related to or arising out of, whether directly or indirectly, (i) NATT's intentional or negligent 5 actions or omissions under this Agreement, including but not limited to trademark infringements based upon City/Host's use of NATT's Marks as approved in accordance with this Agreement, contests, sweepstakes or other activities conducted by NATT pursuant to this Agreement, and any product demonstrations or products distributed by NATT pursuant to this Agreement and (ii) any breach of this Agreement by NATT. 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/Host and NATT 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. 13. 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. 14. Confidentiality The parties hereto expressly acknowledge that City/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, 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. 15. Execution This Agreement may be executed in counterparts and shall be deemed executed and binding upon signature by both parties hereof 6 16. 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. 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 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 ppplicabp lav: • 18. 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. 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 representations and warranties made in and the indemnifications provided pursuant to this Agreement shall survive the expiration or earlier termination of this Agreement. 21. 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. 7 IN WITNESS WHEREOF, the parties hereby execute this Agreement on the indicated dates. North American Table Tennis By: Name w Title: Date:t0Ji� 8 City of Round Rock, Texas By: Name: Title: Date: For City, Attest: For City, By: as t Form: tep n L. Sheets, City Attorney