HomeMy WebLinkAbout2015-115-E DEAPR - Triangle Orthopaedic Associates, P.A. - Naming Rights and Sponsorship Agreement DocuSign Envelope ID:85F8B674-BOBO-49DD-905E-B4A3D145C169
NAMING RIGHTS AND SPONSORSHIP AGREEMENT
THIS NAMING RIGH,rs AND SPONSORSHIP AGREEMENT ("Agreement") is entered into
effective as of the I" day of August, 2014 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 has constructed and is operating the Soccencom Center with
concessions/restroom building("Facility")located on West Ten Road in Efland North Carolina; and
WHEREAS, tine 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.
(a) "Concessions Building"means the concessionfrestroom building at the Facility.
(b) "Facility" is defined in the Recitals set forth above.
3. TERM AND TERMINATION.
(a) The Term of this Agreement shall begin oil the effective date of this Agreement
and continue until the fifth anniversary of that date, Unless carlier terminated according to the
terms and provisions hercof, TOA shall have the option to extend the Term of this Agreement for
an additional five (S)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 1,2019.
(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
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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,
d. RIGHTS AND BENEFITS.
(a) Naming Rights. During the Term of this Agreement, tine name of the
Concessions Building will be"Triangle Orthopaedics Concessions"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 p€u'suant to this paragraph, as tile 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) Sponsorships 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 orthopaedic 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 Wright reflect adversely upon the image
and reputation of TOA, in the reasonable judgment of TOA.
(c) Exclusive Sigh.
(i) 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. Tile concession/restroom building signs will be on two sides of the building,
not to exceed 32 square feet each, Tile designation "Triangle Orthopaedics" will be the
prominent feature. There will be no other sponsor 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.
(ii) 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 oil a regular basis at the
facility and other Orange County locations.
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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.
(iv) During the "Perm of this Agreement Orange County will provide copies
of child and adult injury reports for injuries sustained at the Facility, to the injured or
their parent/guardian. Such report copies shall include information regarding TOA
locations and contact information as mutually agreed upon by both parties. TOA will
provide these forms at their expense for use at the Facility.
5. SPONSORSHIP FEE. Unless this Agreement is terminated earlier, TOA shall pay to
Orange County Eight Thousand Dollars ($8,000) per year, for a total of Forty Thousand Dollars
($40,000) (the"Sponsorship Fee"). TOA shall make the annual Eight Thousand Dollar($8,000) payment
in the form of two Four Thousand Dollar ($4,000) payments per year in response to an invoice. Such
payments shall be remitted within a reasonable time frame after receipt of the invoice.
6. INTELLECTUAL PROPERTY.
(a) TOA grants Orange County the right to use its trademarks, trade names and
service marks, which 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) TOA grants Orange County the right to use the TOA namc and images for
Facility marketing purposes, in any media, subject to prior and timely review by TOA. Such
review is intended to help ensure accuracy and coordination of marketing and public relations
efforts between TOA and Orange County related to the Facility. Orange County grants TOA the
right to use the TOA name and images for Facility 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 Comity 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 Facility sponsorship. 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
tinder the Agreement("Approval Coordinator"), as named below;
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For Orange County; Clarence G. Grier, Assistant County Manager and CFO
Orange County Manager's Office
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-DISCRIMINATION. 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 ensure that in no event shall usage of the Facility discriminate on the basis of race, ethnicity, color,
creed,religion, national origin,gender,disability,age,veteran status or familial status.
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.
9. 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 ill 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 Comity'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 indemnifi cation pursuant to this
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Agreement, The parties agree to cooperate in the settlemetrt 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 snail, or by wire transfer, as
appropriate, to the parties at the following addresses:
For Orange County: Clarence G, Grier,Assistant County Manager and CFO
Orange County Manager's Office
P.O. Box 8181
I-lillsborough,NC 27278
For TOA: Triangle Orthopaedic Associates, RA.
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 hercunder to a wholly-owned subsidiary or
to any party to whom TOA sells substantially all of its assets, Ally unauthorized attempt at assignmcnt
shall be void and unenforceable.
14. FURTHER ASSURANCES, Each party shall, upon the request of the other and without
ftufther 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 tarty 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 matuier 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.
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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 tine validity of the remaining provisions of the
Agreement.
18. FORCE MAJEURE. Neither party shall be liable for any delays, damages, nor 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 short governing body to grant necessary permits or
approvals, Curless 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 tine 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. 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 BENEFICIARIES. 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.
CsIgnalure page follows]
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IN WITNESS WHEREOF, the parties have caused their authorized representative to execute this
Agreement as of the date first above written.
TOA:
TRIANGLE ORTHOPAEDIC ASSOCIATES, P.A.
// uSigned by: ,,^^ II��By; 4. oip-ovl'
iUR5hP6W CEO
Orange County:
ORANGE COUNTY
ned by:
By:
[—�DOCUSig
Mwt, C1AaMIMvs
Nam . _ 0637994B755E477... County Manager
Approved as to technical content:
DocuSigned by:
R v;Ufilatw lj)Director
Department of Environment, Agriculture, Parks
and Recreation
DocuSigned by: qq��
✓J�lR.
r e4G?c6Mcr,Assistant County Manager and CFO
This instrument has been approved as to form and legal sufficiency.
DocuSigned by:
J,QtnVK0jqk&g@unty Attorney
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