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HomeMy WebLinkAbout2009-067 Rec & Parks - Triangle Orthopaedic Associates - Naming Rights And Sponsorship Agreement - West Ten Soccer Fields~-/~- NAMING RIGHTS AND SPONSORSHIP AGREEMENT THIS NAMING RIGHTS AND SPONSORSHIP AGREEMENT ("Agreement") is entered into this first day of August, 2009 between TRIANGLE ORTHOPAEDIC ASSOCIATES, P.A. ("TOA"), a North Carolina professional corporation with offices located at 120 William Penn Plaza, Durham, North Carolina and ORANGE COUNTY, a Body Politic and Corporate of the State of North Carolina ("Orange County"). RECITALS WHEREAS, Orange County is constructing the Soccer Center with concessions/restroom building ("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, TOA desires to be the named sponsor of the concession/restroom building located at 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 TOA hereby agree as follows: 1. RECITALS. The recitals set forth above are hereby incorporated into this Agreement. 2. DEFINITIONS. Unless the context requires otherwise, or when otherwise indicated, the following definitions apply when these terms are used in their capitalized form. "Concessions Building" means the concession/restroom facility to be constructed by Orange County at the Facility, a photograph of which is attached as Exhibit A. "Facility" is defined in the Recitals set forth above. 3. TERM AND TERMINATION. (a) The term of this Agreement shall begin on the effective date of this Agreement and continue until the fifth anniversary of the date on which the Facility is first opened for use by the public (the "Term"). Unless earlier terminated according to the terms and provisions hereof, TOA shall have the option to extend the Term of this Agreement for an additional five (5) years at a mutually agreed upon yearly sponsorship fee. TOA may exercise its option to extend the Term by providing written notice to Orange County of TOA's intent to renew no later than March 1, 2014. (b) TOA 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: (i) if Orange County is adjudicated as insolvent, declares bankruptcy or is otherwise unable to perform its management duties for the Facility; or (ii) 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 TOA. (c) Orange County shall have the right to terminate this Agreement upon written notice to TOA in the event of the occurrence of any of the following contingencies: (i) if TOA is adjudicated as insolvent, declares bankruptcy or is otherwise unable to pay its debts or obligations when due; or (ii) upon a material breach of any provision of this Agreement by TOA, if such breach is not cured within thirty (30) days after TOA receipt of written notice from Orange County. (d) The provisions of Sections 9, 10, 12, 17, 18, 19, 20 and 21 shall survive expiration or termination of this Agreement. 4. RIGHTS AND BENEFITS. (a) Naming Rights. During the Term of this Agreement, the name of the Concessions Building will be "The Triangle Orthopaedics Building" or any other name substituted by TOA as hereinafter provided. During the Term of this Agreement, Orange County will use only that name, or any name substituted by TOA pursuant to this paragraph, as the exclusive name of the Concessions Building. TOA may from time to time request a substitution of its name for some other name to be designated by TOA. The new name shall be substituted only if Orange County gives consent, which consent shall not be unreasonably withheld. To the extent signs must be altered as a result of a name substitution, TOA shall bear all reasonable costs associated with changing the signs that display the previous name of the Concessions Building. (b) ~onsorships and Advertising During the Term of this Agreement and extensions or renewals thereof, Orange County agrees that no sponsorships or other forms of advertisement relating to the practice of orthopaedics surgery and/or urgent care industry may be offered or provided to third parties without the prior written approval from TOA, which approval shall not be unreasonably withheld. In addition, Orange County agrees that it will not offer or provide or accept sponsorships or sell or accept advertising at the Facility to persons or entities whose business reputation or ongoing business activities might reflect adversely upon the image and reputation of TOA, in the reasonable judgment of TOA. (c) Exclusive Si rg_iaae. (1) Orange County, at its expense, will design, install and maintain signage in the Facility recognizing TOA as the naming sponsor of the concession/restroom building. The concession/restroom building signs will be on two sides of the building, not to exceed 32 square feet each. The designation "Triangle Orthopaedics" will be the prominent feature. There will be no other signage on the Facility, and TOA will be the only entity displayed or named thereon. The design of artwork for this sign will be communicated to TOA for their approval prior to construction, which approval shall not be unreasonably withheld. 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 TOA. (2) Orange County may own, or lease, and operate one or more mobile concession stands/carts at the Facility and at other locations of Orange County Parks and Recreation locations. Orange County, at its expense, will design, install and maintain signage on each of said carts recognizing TOA as the naming sponsor of said carts, the design of said signage to be subject to the prior written approval of TOA. Said carts and signage are to be maintained in good condition and utilized on a regular basis at the facility and other Orange County locations. (3) During the Term of this Agreement, no other signage or advertising displays will be placed on the Facility or any of the mobile concession stands/carts without the prior written approval of TOA. 5. SPONSORSHIP FEE. Unless this Agreement is terminated earlier, TOA shall pay to Orange County Six Thousand Dollars ($6,000) per year, for a total of Thirty Thousand Dollars ($30,000) (the TRII\701846v1 2 "Sponsorship Fee"). The first annual payment of the Sponsorship Fee will be paid to Orange County within seven (7) business days after the date on which the Facility is opened for use by the public. Thereafter, TOA shall make annual payments of Six Thousand Dollars ($6,000) each on the anniversary date of the first payment. 6. INTELLECTUAL PROPERTY. (a) TOA grants Orange County the right to use its trademarks, trade names and service marks, that may be used in any of the signage on the Concessions Building ("TOA Marks"), solely in connection with the identification of TOA and use on the Promotional Media for the Facility. Prior to use of the TOA Marks on signage, Orange County shall provide TOA with examples of proposed use prepared by or for Orange County for review and approval. Orange County acknowledges that its use of the TOA Marks shall inure to the sole benefit of TOA and shall not create any right, title or interest in same in favor of Orange County. Orange County agrees to comply with TOA guidelines as may be provided to Orange County from time to time concerning use of TOA. TOA reserves the right to prohibit the use of TOA Marks, or to modify any materials depicting TOA Marks, if in its sole judgment such use may be illegal, misleading or inappropriate. (b) Orange County grants TOA the right to use the TOA 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 marketing and public relations efforts between TOA and Orange County related to the TOA (c) Orange County grants TOA the right to use the Orange County seal (logo), which is a registered mark with the North Carolina Secretary of State's Office, solely in connection with the identification of the TOA. TOA 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 TOA. TOA agrees to comply with Orange County's guidelines as may be provided to TOA 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. (d) Each party shall provide a single point of contact for any approvals required under the Agreement ("Approval Coordinator"), as named below: For Orange County: Lori N. Taft, Director Orange County Parks and Recreation Department P.O. Box 8181 Hillsborough, NC 27278 For TOA: Charles Wilson, CEO Triangle Orthopaedic Associates, P.A. 120 William Penn Plaza Durham, NC 27704 Either party may change its Approval Coordinators upon written notice to the other party in accordance with this Agreement. 7. MAINTENANCE OF FACILITY, NON-DISCRIIVIINATION. During the Term of this Agreement and any extensions or renewals thereof, Orange County shall maintain the Facility, the Concessions Building and the signage thereon in a good, professional and safe condition. Orange County shall rxnvo~ sa6~~ ensure that in no event shall usage of the Facility discriminate on the basis of race, sex, religion or national origin. 8. TRANSFER OF OWNERSHIP, OR CLOSING, OF THE FACILITY. If Orange County ceases to be the owner of the Facility, or if Orange County closes the Facility for use by the general public, other than temporary closures for purposes of necessary maintenance or repairs, then TOA shall not be required to make any Sponsorship Fees otherwise becoming due and payable under this Agreement, and may, at its option, terminate this Agreement. If TOA exercises its right to terminate, then Orange County shall refund to TOA a prorated portion of the Sponsorship Fee paid for the year in which such termination occurs. TOA is fully aware that the Facility will be closed for use by the public during the months of November through March annually. This closure is scheduled to accommodate best turf management practices. This annually scheduled closure of the Facility is not considered cause for non payment of fees or termination of this agreement. INDEMNITY. (a) To the extent permitted by law, Orange County agrees to indemnify, defend and hold harmless TOA, 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, including the Concessions Building, 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. (b) TOA 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) the negligent or reckless acts or omissions of TOA, its employees, agents, or representatives, (ii) the use of the TOA Marks as otherwise permitted in this Agreement, or (iii) TOA's breach of this Agreement. (c) Each party shall promptly notify the other party 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. (d) 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. 10. COMPLIANCE WITH LAWS. In the course of their respective performances 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. 11. 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 TTu~~~oisa6~i 4 For TOA: Triangle Orthopaedic Associates, P.A. Attention: Charles Wilson, CEO 120 William Penn Plaza. Durham, NC 27704 12. WAIVER The failure of TOA 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. 13. ASSIGNMENT. Neither Orange County nor TOA 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 TOA may assign any right or delegate any obligation hereunder to a wholly-owned subsidiary or to any party to whom TOA sells substantially all of its assets. Any unauthorized attempt at assignment shall be void and unenforceable. 14. 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. 15. 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. 16. 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. 17. 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. 18. FORCE MAJEURE. Neither party shall be liable for any delays, damages or failures 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, unless such failure to grant necessary permits or approvals is based on a dispute with either party over costs or fees or the payment thereof, or any 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. 19. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between TOA 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. ~rxm~o~ sa6~i ~ This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which will constitute one and the same Agreement. The parties agree that faxed signature copies shall be legally binding. 20. 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 within the State of North Carolina. 21. 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. 22. CHANGE IN STATUTORY AUTHORITY. TOA acknowledges that Orange County is a governmental entity, and this Agreement's validity is based upon the authority of its statutory mandate. In the event of a change in the Orange County's statutory authority, mandate and mandated functions, by state and federal legislative or regulatory action, which adversely affects Orange County's authority to continue its obligations under this agreement, then this contract shall automatically terminate without penalty to Orange County upon written notice to TOA of such limitation or change in Orange County's legal authority. IN WITNESS WHEREOF, the parties have caused their authorized representative to execute this Agreement as of the date first above written. TOA: TRIANGLE ORTHOPAEDICS ASSOCIATES, P.A. g ~. \ Y Name: C%tcc~,c l~ y~ ,~ s av. Title: ~ Orange County: ~ i ORANGE CT~ ~... ~~ By ~.~_ r Va erie Foushee, Chair; oard of Commissioner Attest: By: Clerk to the Board Approve as to technical content: on Taft Approve as to Form and Legal Sufficiency: /~,_... Co ty Attorney /~ ~rxm~ot sa6~~ 6 Mara Entranc e Gate ~'~t Side Exb~.. ibis orth ss~on ~'lndow