CM-2016-1078 - 4/15/2016HOST PARTNER AGREEMENT
THIS AGREEMENT (the "Agreement") is executed effective as of date of signing (the
"Effective Date") by and between GREATER AUSTIN BADMINTON ASSOCIATION ,
15138 Galena Drive, Austin, Texas 78717, 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
SOUTHERN BADMINTON OPEN (the "event") in Round Rock, Texas, on or about August 6
through August 7, 2016, 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,
GREATER AUSTIN BADMINTON ASSOCIATION 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 event.
(b) GREATER AUSTIN BADMINTON ASSOCIATION and City/Host
acknowledge that City has one exclusive sponsor for the Sports Center,
Orthopedic Medicine, and GREATER AUSTIN BADMINTON
ASSOCIATION has the right to secure its own sponsors or sponsorships
for the event with the exception of any sponsors in the field of
orthopedics.
(c) City/Host acknowledges that GREATER AUSTIN BADMINTON
ASSOCIATION has granted and/or may grant to other National
Corporate Sponsors, National Partners, or Licensees the use of the
GREATER AUSTIN BADMINTON ASSOCIATION's Marks (defined
herein as GREATER AUSTIN BADMINTON ASSOCIATION's
trademarks, trade names, service marks and logos) in the promotion of
GREATER AUSTIN BADMINTON ASSOCIATION's goods or
services. Said licensing and merchandising relationships shall be on a
local, regional, and national basis.
(d) GREATER AUSTIN BADMINTON ASSOCIATION 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. GREATER AUSTIN BADMINTON
ASSOCIATION 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.
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2. GREATER AUSTIN BADMINTON ASSOCIATION's Rights and
Responsibilities
(a) GREATER AUSTIN BADMINTON ASSOCIATION shall have the
right to receive and retain, in accordance with conditions recited herein,
all team entry fees from the event.
(b) GREATER AUSTIN BADMINTON ASSOCIATION shall obtain and
maintain in full force and affect a general liability insurance policy
covering the event, and said insurance policy shall fulfill all requirements
of the City of Round Rock, Texas as to amount and coverage. A copy of
such insurance certificate shall be provided to City/Host in advance of the
event. GREATER AUSTIN BADMINTON ASSOCIATION 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) GREATER AUSTIN BADMINTON ASSOCIATION, at its own
expense, shall have the sole responsibility for establishing, organizing,
and operating the event.
3. Fees and Costs
As consideration for the rights and benefits granted herein, and provided that
GREATER AUSTIN BADMINTON ASSOCIATION is in compliance with all
terms of this Agreement, City/Host shall pay to GREATER AUSTIN
BADMINTON ASSOCIATION the following:
(a) Rights Fee of Six Thousand Six Hundred and No/100 Dollars
($6,600.00). Such rights fee shall assist in covering GREATER AUSTIN
BADMINTON ASSOCIATION'S event costs, specifically venue rental
costs as set forth herein. The rights fee of $6,600.00 shall be due and
payable by City/Host to GREATER AUSTIN BADMINTON
ASSOCIATION upon execution of this Agreement and shall be used by
GREATER AUSTIN BADMINTON ASSOCIATION as follows:
(i) Upon receipt of the rights fee from City/Host, GREATER
AUSTIN BADMINTON ASSOCIATION shall use the rights fee
to pay the deposit amount required by the venue to secure the
venue for the Event. In the event the deposit has already been paid
by GREATER AUSTIN BADMINTON ASSOCIATION prior to
the execution of this Agreement, the rights fee shall be used toward
the remaining costs of the venue rental.
(ii) In the event GREATER AUSTIN BADMINTON ASSOCIATION
pays the deposit for the venue rental and there are remaining
monies available from the rights fee, those remaining monies shall
be used towards the remaining costs of the venue rental.
(iii) Within fifteen (15) days of the execution date of this Agreement,
GREATER AUSTIN BADMINTON ASSOCIATION shall
provide City/Host (Attn: Nancy Yawn, Director of Round Rock
CVB) verification that the deposit for the venue has been paid.
Verification that the venue costs have been paid in full shall be
provided to the City/Host (Attn: Nancy Yawn, Director of Round
Rock CVB) within three (3) days of full payment of the venue
rental.
(iv) Failure to provide verification to City/Host as required in
subsection (iii) above shall be considered a material breach of this
Agreement and City/Host shall at its sole discretion seek any and
all remedies available under Texas Law.
(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 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.
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 August 7, 2016.
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 perforin 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
GREATER AUSTIN BADMINTON ASSOCIATION 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 GREATER
AUSTIN BADMINTON ASSOCIATION Mark or City/Host Mark. Accordingly,
in the event of any unauthorized use of any GREATER AUSTIN BADMINTON
ASSOCIATION 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 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 GREATER
AUSTIN BADMINTON ASSOCIATION or City/Host. GREATER AUSTIN
BADMINTON ASSOCIATION 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 GREATER AUSTIN BADMINTON ASSOCIATION:
Daniel Orrell and Chem -Nee Tan
15138 Galena Drive
Austin, Texas 78717
To City/Host:
Laurie Hadley
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
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 ninety (90) days' written
notice to the other party. Prior to proceeding with a termination for cause,
City/Host agree to use all reasonable efforts to resolve any and all issues
with GREATER AUSTIN BADMINTON ASSOCIATION and shall
provide GREATER AUSTIN BADMINTON ASSOCIATION a
reasonable amount of time to remedy the issues to avoid a termination for
cause.
(c) Termination of this Agreement for any reason provided herein shall not
relieve either party from its obligation to perform up to the effective date
of such termination or to perform such obligations as may survive
termination.
(d) In the event of termination of this Agreement for any reason and/or the
cancellation of the event, the parties acknowledge that City/Host would
only be required to pay a prorata portion of its Rights Fee based on those
benefits actually determined by City/Host to have been provided to
City/Host by GREATER AUSTIN BADMINTON ASSOCIATION prior
to termination or cancellation. In the event that City/Host has, as of the
effective date of termination or cancellation, paid GREATER AUSTIN
BADMINTON ASSOCIATION more of the Rights Fee than required by
this section and this Agreement, then and in that event GREATER
AUSTIN BADMINTON ASSOCIATION 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
GREATER AUSTIN BADMINTON ASSOCIATION, 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 GREATER AUSTIN BADMINTON
ASSOCIATION'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, GREATER AUSTIN BADMINTON
ASSOCIATION 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, GREATER AUSTIN BADMINTON
ASSOCIATION's intentional or negligent actions or omissions under this
Agreement, including but not limited to trademark infringements based upon
City/Host's use of GREATER AUSTIN BADMINTON ASSOCIATION's Marks
as approved in accordance with this Agreement, contests, sweepstakes or other
activities conducted by GREATER AUSTIN BADMINTON ASSOCIATION
pursuant to this Agreement, and any product demonstrations or products
distributed by GREATER AUSTIN BADMINTON ASSOCIATION pursuant to
this Agreement and (ii) any breach of this Agreement by GREATER AUSTIN
BADMINTON ASSOCIATION.
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
GREATER AUSTIN BADMINTON ASSOCIATION 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 parry 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.
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
applicable law.
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 Maieure
No party hereto will be responsible for the performance of any of its obligations
hereunder if prevented, delayed or hindered by war, riots insurrection, embargoes,
strikes, concealed acts of workmen, casualty, accidents, acts of terror, or any other
occurrence beyond such party's control, excluding weather.
IN WITNESS WHEREOF, the parties hereby execute this Agreement on the indicated dates.
GREATER AUSTIN BADMINTON ASSOCIATION
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TEXAS Agenda Item Summary
Agenda Number:
Title: Consider authorizing a Host Partner agreement with the Greater Austin
Badminton Association.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 4/15/2016
Dept Director: Nancy Yawn, CVB Director
Cost:
Indexes:
Attachments:
Department: Convention and Visitors Bureau
Text of Legislative File CM -2016-1078
Consider authorizing a Host Partner agreement with the Greater Austin Badminton
Association.
Contract approval request for CVB to Host Southern Badminton Open August 6-7,
2016.
Staff recommends approval.
City of Round Rock Page 1 Printed on 411412016