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HomeMy WebLinkAbout2009-065 Rec & Parks - Sports Endeavors, Inc. - Facility Naming and Sponsorship Agreement Public Private Partnerships - West Ten Soccer Center• ~~ ease return t is copy to Clerk to the Board's office for PAF '1~7F-~ - FACILITY NAMING AND SPONSORSHIP AGREEMENT This Facility Naming Agreement ("Agreement"} is entered into this day of July 23, 2009, between Sports Endeavors, Inc., a North Carolina corporation with offices located at 431 US Highway 70A East, Hillsborough, NC 27278-9912 and Orange County, North Cazolina hereinafter referred to as "Orange County," pursuant to Gen. Statute 160A-460 et seq., and other applicable laws. WHEREAS, Orange County is constructing the West Ten Soccer Center ("Facility") located on West Ten Road in Efland North Carolina; and WHEREAS, the Facility will be utilized by local, regional, state and national organizations, among other uses; and WHEREAS, Sports Endeavors, Inc. desires to sponsor the Facility in return for certain benefits as set forth below: NOW, THEREFORE, in consideration of the mutual promises and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Orange County and Sports Endeavors, Inc. hereby agree as follows: 1. RECITALS. The recitals set forth above aze herby incorporated into this Agreement. 2. TERM AND TERNIINATION. 2.1. The term of this Agreement shall commence as of the date first above written and, unless sooner terminated in accordance with the Agreement, shall continue until June 30, 2014. 2.2. Provided Sports Endeavors, Inc. is not in default hereunder, Sports Endeavors, Inc. shall have the option to extend the term of the this Agreement for an additional five (5) years at a mutually agreed upon yearly investment. Sports Endeavors, Inc. can exercise its option by providing written notice to Orange County of Sports Endeavors intent to renew no later than January 1, 2014. 2.3. Sports Endeavors, Inc. shall have the right to terminate this Agreement upon 30 days written notice to Orange County in the event of the occurrence of any of the following contingencies: 2.3.1. If Orange County is not using its best efforts to utilize the Facility to its potential and Sports Endeavors, Inc. is not receiving the desired brand exposure; or 2.3.2. If Orange County is adjudicated as insolvent, declares bankruptcy or is otherwise unable to perform its management duties for the Facility; or 2.3.3. Upon material breach of any provision of this Agreement by Orange County, if such breach is not cured within thirty (30) days after Orange County's receipt of written notice from Sports Endeavors, Inc. 2.4. Orange County shall have the right to terminate this Agreement upon written notice to Sports Endeavors, Inc. in the event of the occurrence of any of the following contingencies: 2.4.1. If Sports Endeavors, Inc. is adjudicated as insolvent, declares bankruptcy or is otherwise unable to pay its debts when due; or Page 1 of 7 2.4.2. Upon a material breach of any provision of this Agreement by Sports Endeavors, Inc., if such breach is not cured within thirty (30) days after Sports Endeavors receipt of written notice from Orange County. 2.5. The provisions of Sections 8, 10, 16, 17, 18, 19, and 20 shall survive expiration or termination of this Agreement. 3. SPORTS ENDEAVORS RIGHTS AND BENEFITS 3.1. Naming Rights. 3.1.1. Sports Endeavors, Inc. shall have the exclusive right to retain the Facility name "Eurosport Soccer Center" or such other Facility name containing "Eurosport" as may be agreed upon between Sports Endeavors, Inc. and Orange County (the "Facility Name"). 3.1.2. All references to the Facility, regardless of media, including any electronic forms of such media, made by Orange County will include Eurosport. Such references shall include, but not be limited to, all mazketing materials, press releases, television and radio advertisements, promotions or announcements, tickets, ticket order forms, newspapers, magazines and any other print materials, and the Facility website ("Promotional Media"). 3.1.3. Orange County agrees that no sponsorships or other forms of advertisements relating to the Facility may be offered to third parties in the soccer or lacrosse catalog industry without prior approval from Sports Endeavors, Inc, which approval shall not be unreasonably withheld. In addition, Orange County agrees that it will not offer sponsorships or sell advertising to persons or entities whose business reputation or ongoing business activities might reflect adversely upon the image and reputation of Sports Endeavors, Inc. 3.2. Si a e 3.2.1. Unless otherwise stated herein, Orange County will design, install and maintain signage in the Facility recognizing Sports Endeavors/Eurosport asthe naming sponsor of the Facility. Appropriate lighting will be provided and maintained, at a minimum, for the main entrance sign. The main entrance sign will be a two sided high density urethane fabrication measuring 72" x 36". The designation "Eurosport Soccer Center" will be the prominent feature. The sign will also identify Orange County Parks and Recreation and will include the County seal, the Pazks and Recreation logo and the Eurosport logo. The design of artwork for this sign will be communicated to Sports Endeavors for their approval prior to construction. 3.2.2.Orange County shall use its best efforts to obtain approval from the North Caxolina Department of Transportation and other governmental agencies for the placement of a minimum of two (2) directional highway signs that contain the Facility Name. 3.2.3.Orange County shall use best efforts to see that permanent signage is not modified, covered, or digitally manipulated in visual images without the prior written approval of Sports Endeavors, Inc. 3.3. Admission, Parking Passes. 3.3.1.Orange County shall provide Sports Endeavors, Inc. with ten (10) tickets and parking passes to any ticketed events held at the Facility for which Orange County controls the ticketing process. Passes may be used by Sports Endeavors, Inc. employees, vendors, clients, etc. 3.3.2. In any event for which Orange County does not control sale and/or distribution of the admission passes and parking passes, Orange County shall use reasonable efforts to obtain ten (10) admission passes and parking passes, but "reasonable efforts" shall not include having to purchase said passes. 3.4. Use of Facility. Page 2 of 7 3.4.1. Sports Endeavors Inc. shall have the right, subject to the provisions of this Section, to utilize the Facility for company events. Sports Endeavors, Inc. shall provide Orange County with not less than thirty (30) days notice of any such request to utilize the Facility. Such usage shall be on the dates mutually agreed upon by the parties, based on Facility availability. Sports Endeavors, Inc. shall reimburse Orange County for any related fees or costs typically chazged or incurred by Orange County associated with the company events (i.e. set up, security, supervision, clean up, etc.). 3.5. Advisorv Board. 3.5.1. In the event an Advisory Boazd is created with regard to use of the Facility by Orange County, Sports Endeavors, Inc. shall have the option, at its sole discretion, to place at least one (1) member on such Advisory Board. 4. PAYMENTS. Sports Endeavors, Inc shall, on or before thirty (30) days following the date of this Agreement, pay Orange County the amount of Thirty Thousand and No/100 Dollars ($ 30,000.00) This amount shall also be paid by Sports Endeavors, Inc. during the month of July in each of the following four years. In addition, Sports Endeavors shall pay Orange County up to $30,000 and No/100 Dollars ($30,000) per yeaz for five years within 30 days from receipt of matching funds, as a matching contribution to the amount that Orange County is able to raise with funds provided by other businesses and/or donors to the Facility. 5. INTELLECTUAL PROPERTY 5.1. Sports Endeavors Inc. grants Orange County the right to use its trademazks, trade names and service marks, including the Sports Endeavors, Inc. and Eurosport logos ("Sports Endeavors Marks") solely in connection with the identification of the Facility and use on the Promotional Media. Prior to use of the Sports Endeavors Marks in the Promotional Media or on signage, Orange County shall provide Sports Endeavors Inc. with examples of proposed uses prepazed by or for Orange County for review and approval. Orange County acknowledges that its use of the Sports Endeavors Mazks shall inure to the sole benefit of Sports Endeavors Inc. and shall not create any right, title or interest in same in favor of Orange County. Orange County agrees to comply with Sports Endeavors' guidelines as may be provided to Orange County from time to time concerning use of Sports Endeavors Mazks. Sports Endeavors, Inc. reserves the right to prohibit the use of Sports Endeavors Marks, or to modify any materials depicting Sports Endeavors Mazks, if in its sole judgment such use may be illegal, misleading or inappropriate. 5.2. Orange County grants Sports Endeavors, Inc. the right to use the Facility name and images for marketing purposes, in any media, subject to prior and timely review by Orange County. Such review is intended to help ensure accuracy and coordination of mazketing and public relations efforts between Sports Endeavors, Inc. and Orange County related to the Facility. 5.3. Orange County grants Sports Endeavors, Inc. the right to use the Orange County seal (logo), which is a registered mark with the North Cazolina Secretary of State's office, solely in connection with the identification of the Facility. Sports Endeavors Inc. acknowledges that its use of the Orange County seal (logo} shall inure to the sole benefit of Orange County and shall not create any right, title or interest in same in favor of Sports Endeavors. Sports Endeavors, Inc. agrees to comply with Orange County's guidelines as may be provided to Sports Endeavors, Inc. from time to time concerning use of its seal (logo), or to modify any materials depicting its seal, if in its sole judgment such use may be illegal, misleading or inappropriate. 5.4. Each party shall provide a single point of contact for any approvals required under the Agreement ("Approval Coordinator"), as named below: Page 3 of 7 For the County: Lori N. Taft, Director Orange County Parks and Recreation Department P.O. Box 8181 Hillsborough, NC 27278 For Sports Endeavors: Mike Moylan, President Sports Endeavors, Inc. 431 US Highway 70A East Hillsborough, NC 27278 Either party may change their Approval Coordinators upon written notice to the other party in accordance with this Agreement. 6. MAINTENANCE OF FACILITY. NON-DISCRINIINATION. 6.1. Orange County shall maintain the Facility in good and safe condition. 6.2. Orange County shall ensure that in no event shall usage of the Facility discriminate on the basis of race, sex, religion or national origin. 7. INSURANCE REQUIREMENTS. RELEASES REQUIRED. 7.1. Orange County agrees to secure and maintain in force and effect throughout the term of this Agreement insurance coverage for all facilities and equipment located at the Facility consistent with that maintained by Orange County at all other municipal locations. Such coverage should include, at a minimum the following: 7.1.1. Statutory workers' compensation in accordance with North Carolina law. Employers' liability (Coverage B) with limits of not less that $100,000 per accident. 7.1.2. Comprehensive General Liability Insurance with limits of at least $2,000,000 for each occurrence and combined single limit. 7.1.3. Excess Liability Coverage with limits not less than $4,000,000 per occurrence with a Combined Aggregate Limit of $4,000,000. 7.1.4. Commercial Property Insurance on the Facility with a limit of no less than $3,500,000. 7.2. Orange County shall deliver to Sports Endeavors Certificates of Insurance evidencing the existence of the insurance required above no later than thirty (30) days following the fmal execution of this Agreement. Such Certificates shall provide for the giving to Sports Endeavors of thirty (30) days prior written notice of cancellation. 7.3. Orange County agrees that it will use best efforts to require all credentials of any kind used for admission to events at the Facility to include the following or substantially similar language: The holder of this ticket assumes all risk and danger and releases the Eurosport Soccer Center, its sponsors, and host organizations and all agents thereof from any and all liabilities resulting from your attendance at this event. You agree to abide by all rules and regulations established for Eurosport Soccer Center, and a violation of these rules and regulations can be cause for forfeiture of your ticket and removal from the premises. ?.4. Orange County further agrees to use best efforts to obtain signed releases from all organizations engaged in activities at the Facility, which release Sports Endeavors, Inc., its parent, subsidiary and affiliated companies and all agents thereof from any and all liabilities resulting from their use of the Facility and participation in the activity held at the Facility. 8. INDEMNITY. Page 4 of 7 8.1. To the extent permitted by law and up to the amount of its insurance coverage, Orange County agrees to indemnify, defend and hold harmless Sports Endeavors, Inc., its parent, subsidiary and affiliated companies and their respective directors, officers, employees, agents successors and assigns, from and against any and all claims, damages, liabilities, losses, government proceedings and costs and expenses, including reasonable attorneys' fees and costs of suit, arising out of or in connection with (i) any use of the facility or activity conducted thereon, (ii) the negligent or reckless acts or omissions of Orange County, its employees, agents, or representatives, or (iii) Orange County's breach of this Agreement. 8.2. To the extent permitted by law and up to the amount of its insurance coverage, Sports Endeavors, Inc. agrees to indemnify, defend and hold harmless Orange County, its parent, subsidiary and affiliated companies and their respective directors, officers, employees, agents successors and assigns, from and against any and all claims, damages, liabilities, losses, government proceedings and costs and expenses, including reasonable attorneys' fees and costs of suit, arising out of or in connection with (i) any use of the facility or activity conducted thereon, (ii)the negligent or reckless acts or omissions of Sports Endeavors, Inc., its employees, agents, or representatives, or (iii) Sports Endeavors, Inc.'s breach of this Agreement. 8.3. Each party shall promptly notify the other parry of any suit or threat of suit of which that party becomes aware which may give rise to a right of indemnification pursuant to this Agreement. The parties agree to cooperate in the settlement or defense of any such claim, demand, suit or proceeding. 8.4. In the event of a breach or threatened breach of this Agreement by the other party, the non- breaching party shall be entitled, in addition to any other remedies available to it, to obtain relief by way of injunction or other equitable relief. 8.5. The obligations of this Section 8 shall survive the expiration or termination of this Agreement. 9. COMPLIANCE WITH LAWS. In the course of their respective performance under this Agreement, both parties shall comply with all applicable federal, state and local laws and regulations, including, without limitation, laws and regulations pertaining to trademark and copy rights. 10. NOTICES. STATEMENTS AND PAYMENTS. All notices, statements and payments required hereunder shall be sent by fax and overnight mail, or first class mail, or by wire transfer, as appropriate, to the parties at the following addresses: For Orange County: Lori N. Taft, Director Orange County Parks and Recreation Department P.O. Box 8181 Hillsborough, NC 27278 For Sports Endeavors: Mike Moylan, President Sports Endeavors, Inc. 431 US Highway 70A East Hillsborough, NC 27278 Page 5 of 7 11. WAIVER. The failure of Sports Endeavors, Inc. or Orange County at any time to demand strict performance by the other of any terms, covenants or conditions set forth herein, shall not be construed as a continuing waiver or relinquishment thereof, and either may at any time demand strict and complete performance by the other of said terms, covenants and conditions. 12. ASSIGNMENT. Neither Orange County nor Sports Endeavors, Inc. shall have any right to assign or transfer any of its rights or obligations hereunder without the express written consent of the other party, except Sports Endeavors, Inc. may assign any right or delegate any obligation hereunder to a wholly-owned subsidiary or to any party to whom Sports Endeavors, Inc. sells substantially all of its assets. Any unauthorized attempt at assignment shall be void and unenforceable. 13. FURTHER ASSURANCES. Each party shall, upon the request of the other and without further consideration, execute and deliver to such other parties such documents as may be necessary and proper, and take such other action as may be required, to effectively carry out this Agreement. 14. INDEPENDENT CONTRACTORS. Both parties shall be independent contractors unto one another. Nothing herein contained shall be construed to constitute the parties hereto as partners or as joint venturers, or either as agent of the other, and neither shall have power to obligate or bind the other in any manner whatsoever. 15. SIGNIFICANCE OF HEADINGS. Paragraph headings contained hereunder are solely for the purpose of aiding in speedy location of subject matter and are not in any sense to be given weight in the construction of this Agreement. Accordingly, in case of any question with respect to the construction of this Agreement, it is to be construed as though such paragraph headings had been omitted. 16. SEVERABILITY. If this Agreement or any of its provisions is found to be illegal or unenforceable under the law now or hereafter in effect, then the parties shall be excused from the performance of such portions of this Agreement as shall be found to be illegal or unenforceable under the applicable laws or regulations, without affecting the validity of the remaining provisions of the Agreement. 17. FORCE MAJEURE. Neither party shall be liable for any delays, damages nor failure to act caused by a Force Majeure Event. A Force Majeure Event means an act of God, failure of any governmental or other regulatory agency or national sport governing body to grant necessary permits or approvals, threat and/or acts of terrorism, or any similar contingency beyond its control, and any failure or delay in the performance of the respective obligations of the parties due to a Force Majeure Event shall not be deemed a breach of this Agreement. 18. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between Sports Endeavors, Inc. and Orange County relating to the subject matter hereof, and cannot be altered or modified except by an agreement in writing signed by both parties. Upon its execution, this Agreement shall supersede all prior negotiations, understandings and agreements regarding the Facility, whether oral or written, and such prior agreements shall thereupon be null and void without further legal effect. Any terms inconsistent with or additional to the terms and conditions set forth in this Agreement which may be included with a purchase order, acknowledgement, invoice or the like, of either party shall not be binding on the other party hereto. This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which will Page 6 of 7 constitute one and the same Agreement. The parties agree that faxed signature copies shall be legally binding. 19. GOVERNING LAWS. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina applicable to contracts entered into and wholly to be performed with the State of North Carolina. 20. NO THIRD PARTY BENFICIARIES. Unless otherwise specifically provided herein, no person or entity that is not a party to this Agreement will have any equitable or other rights by virtue of this Agreement. IN WITNESS WHEREOF, the parties have caused their authorized representative to execute this Agreement as of the date first above written. Sports s, Inc. Orange County Signature Mike 1~JIo~ President Valerie Foushee, Chair, Board of Commissioners Attest: Attest: r By: a~.~,--- By: Title ~~'~~ Clerk to the Board By: z Si e Lori Taft, Parks and Recrea/t~i'on Director y: ~-._ ~__ .~ -------- Signature John Roberts, Orange County Attorney Page 7 of 7