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CM-2014-391City of Round Rock Agenda Item Summary Agenda Number: Title: Consider Authorizing a Revenue Sharing Agreement with Velocity 101 dba CoreSpeed Gym in connection with The Round Rock Sports Center. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 4/18/2014 Dept Director: Chad McDowell, General Services Director Cost: Indexes: Attachments: Agreement, LAF Department: General Services Department Text of Legislative File CM -2014-391 With this agreement the City enters into a revenue sharing agreement for sports and fitness training classes at the Round Rock Sports Center. The City shall account for all revenue, and shall distribute to CoreSpeed Gym forty percent (40%) of the revenue generated. Staff Recommends Approval City of Round Rock Page 1 Printed on 4/17/2014 CONTRACT APPROVAL FORM FOR CITY MANAGER ACTION Required for Submission of Specific City Manager Items Department Name: General Services Project Mgr/Resource: Chad McKenzie ]City Manager Approval CMA Wording Project Name: Revenue Sharing Agreement Contractor/Vendor: Velocity 101 dba CoreSpeed Gym Consider Authorizing a Revenue Sharing Agreement with Velocity 101 dba CoreSpeed Gym in connection with The Round Rock Sports Center. Approval Employee EE Bowden Notes/Comments Date April 7, 2014 CITY OF ROUND ROCK SPORTS CENTER REVENUE SHARING AGREEMENT THE STATE OF TEXAS CITY OF ROUND ROCK COUNTY OF WILLIAMSON COUNTY OF TRAVIS KNOW ALL BY THESE PRESENTS: THIS AGREEMENT is entered into on April 4, 2014, by the City of Round Rock, Williamson County, State of Texas, a home -rule municipal corporation (the "City"), located at 221 E Main St, Round Rock, Texas 78664, and the undersigned authorized agent of Velocity 101 dba CoreSpeed Gym, ("CSG"), located at 3730 CR 123 Round Rock, TX 78664. WHEREAS, the City owns, operates and leases the Round Rock Sports Center ("RRSC"), located at 2400 Chisholm Trail Drive, Round Rock, Texas, for various sports and recreational events and activities; an WHEREAS, CoreSpeed Gym delivers to facilities sports and fitness training programs; and WHEREAS, the City wishes to hold speed, agility, strength, and conditioning classes at its facility; and WHEREAS, the parties desire to enter into a revenue sharing agreement for sports and fitness training classes at the RRSC based upon the terms set forth below; NOW THEREFORE, in consideration of the terms, conditions and covenants herein contained, the parties agree as follows: SECTION 1. INCORPORATION OF RECITALS The recitals set forth above ore true and correct and incorporated into this Agreement. SECTION 2. EFFECTIVE; TERM 1. The term of this Agreement shall commence on May 1, 2014 and continue through December 31, 2014 ("Expiration Date"). 2. The parties may agree in writing, subject to the approval of the City's authorized agent, to extend the Agreement prior to the Expiration Date of the initial term or any subsequent extended term. CM -2014-391 SECTION 3. TERMS AND CONDITIONS 1. The City, through the RRSC, shall at its sole expense: (i) Manage the registration process, specifically, the enrollment, all communications between RRSC and participants, domestic payment processing and the management of staff contracts. (ii) Promote and market the camps through the RRSC, social Media, RRSC website, email lists, and the City's newsletter. (iii) Provide space (indoor or outdoor as agreed upon seasonally by both parties) for the classes. (iv) Provide necessary equipment (list of equipment to be decided on by both parties). (v) Maintain insurance coverage in an amount mutually agreed upon by the parties. (vi) Promote the program as "in partnership with CoreSpeed Gym". 2. CoreSpeed Gym shall at its sole expense: (i) Provide coaches/trainers & curriculum for all classes (ii) Assist in the promotion of programs through CSG outlets (email lists, social media, flyers) 3. All revenue generated from the operation any sports and fitness training classes at the RRSC shall be equally shared between the parties. All revenue shall be paid directly to the City. The City shall account for all revenue, and shall distribute to CoreSpeed Gym forty percent (40%) of the revenue generated in a timely manner. 4. All costs incurred in the operation of sports and fitness training classes shall be shared equally between the parties. All costs in addition to costs specifically referenced in this Agreement, shall be mutually agreed upon by the parties prior to any expenditures. SECTION 4. INDEMNIFICATION Each party shall indemnify, and hold the other party harmless from and against all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of the other party. Nothing herein shall be deemed to limit the rights of the parties (including but not limited to the right to seek contribution) against any third party who may be liable for an indemnified claim. SECTION 5. TERMINATION A. Termination for Convenience. The parties shall have the right to terminate this Agreement, for convenience and without cause, within ninety (90) days written notice to the non - terminating party. B. Termination for Default. If any party breaches any of the terms and conditions of this Agreement and fails to rectify such default in accordance with a written notice from a non -defaulting party within ten (10) days after the date of such notice (or a longer period if all parties agree to same in writing), a non -defaulting party may terminate this Agreement at any time thereafter. SECTION 6. COMPLIANCE WITH LAWS, RULES AND REGULATIONS CoreSpeed Gym, its agents, and employees shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. SECTION 7. FORCE MAJEURE A. Force Majeure. The failure of the City to perform its obligations under this Agreement shall be excused to the extent, and for the period of time, such failure is caused by the occurrence of an event of Force Majeure. Force Majeure shall mean acts and events not within the City's control, and which the City has been unable by the exercise of due diligence to avoid or prevent. Events of Force Majeure include, without limitation: Acts of God; strikes, lockouts, or other industrial disputes; inability to obtain material, equipment or labor; epidemics, civil disturbances, acts of domestic or foreign terrorism, wars within the continental United States, riots or insurrections; landslides, lightning, earthquakes, fires, storms, floods or washouts; arrests and restraint of rulers and people; interruptions by government or court orders; declarations of emergencies by applicable Federal, State, or local authorities; present or future orders of any regulatory body having proper jurisdiction and authority; explosions; and breakage or accident to machinery. B. Notice. The City shall give CoreSpeed Gym prompt notice of the event of Force Majeure by electronic mail, facsimile transmission, or telephone confirmed promptly thereafter in writing, and shall use due diligence to remedy the event of Force Majeure, as soon as reasonably possible; provided, however that nothing contained herein shall be construed to require a party to settle a strike or other labor dispute against its will. C. Termination. If performance of the terms of this Agreement is prevented in whole or in material part by an event of Force Majeure, the City may terminate this Agreement upon written notice. SECTION 8. APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in the courts of Williamson County, Texas. These Terms of Use shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. SECTION 9. DISPUTE RESOLUTION CoreSpeed Gym hereby expressly agree that no claims or disputes between CoreSpeed Gym and the City arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. SECTION 10. SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void SECTION 11. ASSIGNMENT AND DELEGATION CoreSpeed Gym hereby binds itself, its successors, assigns and legal representatives with respect to this Agreement. License shall not assign, sublet or transfer any interest or rights under this Agreement without prior written authorization of the City. SECTION 12. NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: (1) when delivered personally to CoreSpeed Gym or CoreSpeed Gym's agent; (2) three (3) days after being deposited in the United States mail, with postage prepaid to CoreSpeed Gym at the address provided to the City; (3) notice to the City shall be considered given when delivered personally to the addresses below, or three (3) days after being deposited in the United States mail, with postage prepaid to the addresses below. Steve Norwood, City Manager 221 East Main Street AND TO: Round Rock, TX 78664 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 representatives of the City and CoreSpeed Gym. SECTION 13. NON -WAIVER The City's acceptance of revenue or charges, or failure to complain of any action, non- action or default of CoreSpeed Gym, whether singular or repetitive, shall not constitute a waiver of any of the City's rights unless the City expressly agrees in a separate written instrument supported by independent consideration. The City's waiver of any right, or any default of CoreSpeed Gym shall not constitute a waiver of any other right or constitute a waiver of any other default or any subsequent default. No act or omission by the GM or the City's agents shall be deemed an acceptance or surrender of the RRSC. The City's agents and representatives do not have authority to make any changes to this Agreement, make any agreements with CoreSpeed Gym, or accept surrender of the right to use the Premises unless same are in writing and signed by an authorized agent of the City. The GM is the authorized agent of the City under this Agreement. SECTION 14. ATTORNEY'S FEES If the City is required to file suit to collect any amount owed it under this Agreement, the City shall be entitled to collect reasonable attorney's fees, court costs and other expenses of litigation if it prevails in such suit. SECTION 15. ENTIRE TERMS This Agreement constitutes the entire terms agreed upon by the parties, and supersedes any and all previous oral or written terms or representations between the parties. CoreSpeed Gym agrees that the City and its agents have made no representations or promises with respect to this Agreement, except as expressly set forth herein, and that no claim or liability or cause for termination may be asserted by CoreSpeed Gym against the City, and the City shall not be liable by reason of the breach of any alleged representation or promise not expressly stated in this Agreement. This Agreement may only be amended in writing signed by CoreSpeed Gym and the City. Nothing in this Agreement gives or shall be construed to give or provide, any benefit, direct or indirect, to any third party. SECTION 16. WARRANTY OF AUTHORITY CoreSpeed Gym warrants and represents that the person signing this Agreement on its behalf has been duly authorized and empowered to do so, that it has taken all action necessary to approve this Agreement, and that this Agreement is a lawful and binding obligation of CoreSpeed Gym. [Signatures appear on the following page.] • IN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereafter indicated. City of Round Rock, Texas By: Printed ame: $tL' i e Morwxxoca Title: � 9e� Date Signed: /� ti/i�'� Attest: By: 19/1414.-- Sara 9/% Sara L. White, City Clerk For Ci pproved as '+ Form: L. Sheets, City Attorney CoreSpeed Gym By: Ly Printed Name: LCtitio 246 J e• Title: �.nt•t C�reseea-0 Ui �... Date Signed: it , - to t y