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HomeMy WebLinkAboutAgenda 06-18-19 Item 8-w - Soccer.com Center - Naming Rights Agreement Renewal ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 18, 2019 Action Agenda Item No. 8-w SUBJECT: Soccer.com Center - Naming Rights Agreement Renewal DEPARTMENT: Environment, Agriculture, Parks and Recreation ATTACHMENT(S): Renewal Agreement INFORMATION CONTACT: David Stancil, 919-245-2510 Travis Bogle, 919-245-2673 PURPOSE: To approve the renewal of a naming rights license agreement, for a period of five years, between Orange County and Sports Endeavors, Incorporated, for naming rights to the Orange County soccer center, currently known as the Soccer.com Center. BACKGROUND: Orange County and Sports Endeavors, Incorporated of Hillsborough entered into an agreement in 2009 for the naming rights to the Orange County soccer center located on West Ten Road, adjacent to Gravelly Hill Middle School. Since 2009, Sports Endeavors and the County have continued this arrangement, and the facility has been known as the Soccer.com Center (Eurosport Soccer Center in a previous iteration of the agreement) since that time. The Soccer.com Center is a highly-used and widely-known soccer facility that generates significant local revenues and economic impact as a destination for sports tournaments. The Center is utilized by local, regional, state, and national organizations, for sports tournaments, primarily soccer and lacrosse but including other uses as well. Sports Endeavors, Inc. is a locally-owned business in Hillsborough, and has a national footprint as a provider of soccer and lacrosse apparel and equipment. Sports Endeavors negotiated with the County in 2009 and again in 2014 the exclusive right to have the name Soccer.com Center for this facility. The current license agreement is set to expire on June 30, 2019. Currently, Orange County provides signage at the entrance to the center displaying it as the Soccer.com Center. The license agreement renewal presented here is parallel in many ways to the current agreement in terms of use and payment, and includes some new provisions related to the use of logos and signage within the facility with the Soccer.com brand. FINANCIAL IMPACT: Sports Endeavors, Incorporated agrees to remit payment to Orange County at the rate of $35,000 annually as a lump sum, payable in the month of July in each of the following five years. In addition, Sports Endeavors shall pay Orange County up to $10,000 1 per year for five years, within 30 days from receipt of matching funds in each year, as a matching contribution to the amount Orange County is able to raise in each such year. Currently, Orange County receives $8,000 in matching funds (for a total of $43,000) each year through its concession stand naming rights with Emerge (formerly Triangle) Orthopedics. One change in the new agreement is a lowered cap on the amount of matching funds the County may receive from Sports Endeavors for other donations and funding received for the Center. At the time of the expiration of this new contract term in 2024, Orange County expects to have an expanded Soccer.com Center. This would be taken into consideration in the potential renewal discussions at that time. SOCIAL JUSTICE IMPACT: There is no Orange County Social Justice Goal impact associated with this item. RECOMMENDATION(S): The Manager recommends that the Board approve the renewal of the naming rights agreement, pending any final review from the County Attorney, and authorize the Chair to sign the agreement. 2 Page 1 of 12 FACILITY NAMING AND SPONSORSHIP AGREEMENT This Facility Naming and Sponsorship Agreement (“Agreement”) is entered into as of this 1st day of July, 2019, between Sports Endeavors, Incorporated, a North Carolina corporation with offices located at 431 US Highway 70A East, Hillsborough, NC 27278-9912 (“Sports Endeavors”) and Orange County, North Carolina hereinafter referred to as “Orange County,” pursuant to Gen. Statute 160A-460 et seq., and other applicable laws. WHEREAS, Orange County has constructed and is operating the Soccer.com Center (“Facility”) located on West Ten Road in Efland, North Carolina; and WHEREAS, the Facility is utilized by local, regional, state, and national organizations, among other uses; and WHEREAS, Sports Endeavors desires to renew its sponsorship of 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 hereby agree as follows: 1. RECITALS. The recitals set forth above are hereby incorporated into this Agreement. 2. TERM AND TERMINATION. 2.1. The term of this Agreement shall commence July 1, 2019 and, unless sooner terminated in accordance with the Agreement, shall continue until June 30, 2024. 2.2. Provided Sports Endeavors is not in default hereunder, Sports Endeavors shall have the option to extend the term of this Agreement for an additional five (5) years at a mutually agreed upon yearly investment. Sports Endeavors can exercise its option by providing written notice to Orange County of Sports Endeavors intent to renew no later than January 1, 2024. 2.3. Sports Endeavors 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 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. 2.4. Orange County shall have the right to terminate this Agreement upon written notice to Sports Endeavors in the event of the occurrence of any of the following contingencies: 2.4.1. If Sports Endeavors is adjudicated as insolvent, declares bankruptcy or is otherwise unable to pay its debts when due; or 3 Page 2 of 12 2.4.2. Upon a material breach of any provision of this Agreement by Sports Endeavors, 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 shall have the exclusive right to retain the Facility name “SOCCER.COM” or such other Facility name containing “SOCCER.COM” as may be agreed upon between Sports Endeavors 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 SOCCER.COM. Such references shall include, but not be limited to, all marketing 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, lacrosse, or rugby industry without prior approval from Sports Endeavors, 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. 3.2. Signage 3.2.1. Unless otherwise stated herein, Orange County will design, install and maintain signage in the Facility recognizing Sports Endeavors/SOCCER.COM as the 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 “SOCCER.COM” will be the prominent feature. The sign will also identify Orange County Department of Environment, Agriculture, Parks and Recreation and will include the Orange County Department logo and/or the Orange County logo as well as the SOCCER.COM 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 continue to use its best efforts to obtain approval from the North Carolina 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. 3.2.4. Orange County shall place an inward facing banner that prominently displays the Soccer.com logo that runs the entire length of the fence around the Facility and that covers from the bottom half of the fence up to, at minimum, a height halfway up the fence (as opposed to the entire height of the fence). See Exhibit A as an example. 3.2.5. Orange County shall place a two-sided sign, to be designed and located in the mutual discretion of the parties, that prominently displays the Soccer.com logo at the main walk- in entrance of the Facility, which shall be no smaller than the current logo of 4 Page 3 of 12 EmergeOrtho. Such sign shall be easily viewable upon entering and exiting the Facility. See Exhibit B as an example. 3.2.6. Orange County shall place, and maintain the same in place for the Term, all picnic table umbrellas with Soccer.com branded picnic table umbrellas. There shall be a minimum of six picnic table umbrellas in use at prominent locations in the Facility, including at the entrance to the Facility, at any given time. See Exhibit C as an example. 3.2.7. Orange County shall place, and maintain the same in place for the Term, Soccer.com branded corner flags on all fields. 3.2.8. Orange County shall place updated Soccer.com branded Rules and Regulations, menus, and other relevant signs or notices of the Facility, as may be agreed between the parties, at strategic spots within the Facility. See Exhibit D as an example. 3.2.9. Sports Endeavors agrees to provide Orange County additional signage, and umbrellas, as referenced above, assuming all signage meets Orange County sign ordinances and risk criteria. 3.3. Admission, Parking Passes. 3.3.1. Orange County shall provide Sports Endeavors 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 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. 3.4.1. Sports Endeavors shall have the right, subject to the provisions of this Section, to utilize the Facility, uninterrupted, for company events. Sports Endeavors shall provide Orange County with not less than 30 days’ notice, along with the amount of usage time being requested, to utilize the Facility. Such usage shall be on the dates mutually agreed upon by the parties, based on Facility availability. Sports Endeavors shall reimburse Orange County for any reasonable and related fees or costs to be charged or incurred by Orange County associated with the company events (i.e. set up, security, supervision, clean up, etc.), provided that Soccer.com is made aware of the same before such costs are incurred. 3.4.2. Sports Endeavors shall have the right, beginning 2021, for no additional fee, subject to the provisions of this Section, to host a maximum of one (1) sporting tournament at the Facility, which tournament shall have a duration of no more than three (3) calendar days a time. Sports Endeavors shall be responsible for its own costs associated with the tournaments. 3.5. Advisory Board. 3.5.1. In the event an Advisory Board is created with regard to use of the Facility by Orange County, Sports Endeavors shall have the option, at its sole discretion, to place at least one (1) member on such Advisory Board. 4. PAYMENTS. Sports Endeavors shall, on or before thirty (30) days following the date of this Agreement, pay Orange County the amount of Thirty Five Thousand Dollars and zero cents ($35,000.00). This amount shall also be paid by Sports Endeavors during the month of July in each of the following four years. In addition, Sports Endeavors shall pay Orange County up to $10,000 Dollars and zero cents ($10,000) per year for five years within 30 days from receipt of matching funds in each such year, as a matching contribution to the amount that Orange County is able to raise 5 Page 4 of 12 in each such year with funds provided by other businesses and/or donors to the Facility. If Sports Endeavors exercises its option pursuant to Section 2.2 above, payment for the successive term and payment for matching funds shall be negotiated at such time for such optional term and the option will not become effective until the amount of payment is agreed upon by both parties. 5. INTELLECTUAL PROPERTY 5.1. Sports Endeavors grants Orange County the right to use its trademarks, trade names and service marks, including the Sports Endeavors and SOCCER.COM 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 with examples of proposed uses prepared by or for Orange County for review and approval. Orange County acknowledges that its use of the Sports Endeavors Marks shall inure to the sole benefit of Sports Endeavors 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 Marks. Sports Endeavors reserves the right to prohibit the use of Sports Endeavors Marks, or to modify any materials depicting Sports Endeavors Marks, if in its sole judgment such use may be illegal, misleading, or inappropriate. 5.2. Orange County grants Sports Endeavors 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 marketing and public relations efforts between Sports Endeavors and Orange County related to the Facility. 5.3. Orange County grants Sports Endeavors the right to use the Orange County logo, which is a registered mark with the North Carolina Secretary of State’s office, solely in connection with the identification of the Facility. Sports Endeavors acknowledges that its use of the Orange County 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 agrees to comply with Orange County’s guidelines as may be provided to Sports Endeavors from time to time concerning use of its logo, or to modify any materials depicting its logo, 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: For the County: Bonnie Hammersley, County Manager Orange County Manager’s Office P.O. Box 8181 Hillsborough, NC 27278 For Sports Endeavors: Brian Berklich, CMO Sports Endeavors, Incorporated 431 US Highway 70A East Hillsborough, NC 27278 With a copy to: J. Martin Morgado III, General Counsel Either party may change their Approval Coordinators upon written notice to the other party in accordance with this Agreement. 6 Page 5 of 12 6. MAINTENANCE OF FACILITY, NON-DISCRIMINATION. 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 be discriminatory on the basis of race, ethnicity, color, creed, religion, national origin, gender, disability, age, veteran status or familial status. 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 final execution of this Agreement. Such Certificates shall provide for the giving to Sports Endeavors of thirty (30) days prior written notice of cancellation and shall name Sports Endeavors as an additional insured. 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 and any individual present in this facility assumes all risk and danger and releases SOCCER.COM and Orange County, 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 by Orange County, and a violation of these rules and regulations can be cause for forfeiture of your ticket and removal from the premises. 7.4. 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 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. 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, 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 agrees to indemnify, defend, and hold harmless Orange County, its parent, subsidiary and affiliated companies and their respective directors, officers, employees, agents successors 7 Page 6 of 12 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 use of Sports Endeavors Marks or (ii) Sports Endeavors’ breach of this Agreement. 8.3. 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. 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 copyrights. 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: Bonnie Hammersley, County Manager Orange County Manager’s Office P.O. Box 8181 Hillsborough, NC 27278 For Sports Endeavors: Brian Berklich, CMO Sports Endeavors, Incorporated 431 US Highway 70A East Hillsborough, NC 27278 With a copy to: J. Martin Morgado III, General Counsel 11. WAIVER. The failure of Sports Endeavors 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 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 may assign any right or delegate any obligation hereunder to a wholly-owned subsidiary or to any party to whom Sports Endeavors 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. 8 Page 7 of 12 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 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. 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. 9 Page 8 of 12 Sports Endeavors, Incorporated Orange County ________________________ ___________________________ Mike Moylan, President Penny Rich, Chair, Board of Commissioners Attest: Attest: _________________________ ____________________________ Title Donna Baker, Clerk to the Board This instrument has been approved as to technical content. ________________________________ P. David Stancil, Director, Department of Environment, Agriculture, Parks and Recreation This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. _______________________________ Gary Donaldson, Chief Financial Officer 10 Page 9 of 12 Exhibit A 11 Page 10 of 12 Exhibit B 12 Page 11 of 12 Exhibit C 13 Page 12 of 12 Exhibit D 14