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HomeMy WebLinkAboutContract 44175 (2)CITY SECRETARY � CONTRACT NO. `a`-�U� � MARKETING AGREEMENT BETWEEN THE CITY OF FORT WORTH AND FORT WORTH BRAHMAS, LLC, D/B/A FORT WORTH BRAHMAS This Marketing Agreement ("Agreement") made and entered into this LA day of February, 2013 ("Effective Date"), by and between the City of Fort Worth ("City"), a home -rule municipal corporation, acting by and through its designated Assistant City Manager, and the Ft Worth Brahmas Hockey, LLC, (the "Brahmas") acting by and through its duly authorized representative. WHEREAS, the City owns, and through the Fort Worth Golf Division of its Parks and Community Services Department, operates four golf courses throughout the City; WHEREAS, the Brahmas own and operate a professional ice hockey team in the Central Hockey League named the Fort Worth Brahmas, which host hockey games in two separate arenas, namely the NYTEX Sports Centre located at 8851 Ice House Drive, North Richland Hills, Texas 76180 ("NYTEX") and the Fort Worth Convention Center located at 1201 Houston Street, Fort Worth, Texas 76102 ("FWCC") (collectively, "Arenas"); WHEREAS, the Brahmas regular season began in October 2012 and ends on March 23, 2013, with ten (10) remaining home games, plus potential playoff games; and WHEREAS, the City desires to expand interest and increase participation and revenue for the City's golf courses by marketing and promoting its golf program to the public through the Brahmas and its professional hockey team. NOW, THEREFORE, for and in consideration of the mutual agreements stated herein, the parties agree as follows: I. The Brahmas will provide the following to the City: A. Dasherboard: The City shall receive one (1) 9' x 3' dasherboard at all Brahmas home games during the remaining 2012-2013 season. The City shall provide the artwork and logo to the Brahmas for use on the dasherboard. The Brahmas shall produce the signage in substantially the same form as provided by the City. For home games located at NYTEX, the dasherboard shall be placed in plain view as close as reasonably possible to center ice in front of sections C, D, L, or M, as more fully described in Exhibit A, which is attached hereto and incorporated herein for all purposes. For home games located at FWCC, the dasherboard shall be placed in plain view as close as reasonably possible to center ice in front of sections 103 or 112, as more fully described in Exhibit B, which is attached hereto and incorporated herein for all purposes. B. Program Advertisement: The City shall receive one (1) 1/2 page, four-color advertisement in the Brahmas game night program for the remaining 2012-2013 season. The City shall provide camera-ready art to be included in the advertisement. The City reserves the right to change or revise the advertisement one (1) time without charge. C. Display Table: The City, through its Fort Worth Golf Division ("Fort Worth Golf"), shall have the right to distribute promotional materials to all fans from a display table during three (3) mutually agreeable Brahmas' home games during the remaining 2012-2013 season. The location of the display table shall be highly visible and close to high traffic areas within the Arenas, including, but not limited to, event entrance door(s) or close to concession areas. The parties shall mutually agree to the display table location prior to the start of the applicable home game. The City reserves the right to move its display tabl wring any applicable home game upon the consent of the Brahmas. OFFICIAL RECORD 02-13-13 P03:07 IN Marketing Agreement Between the City of Fort Worth CITY SECRETARY rr.wORTh,Th And Fort Worth Brahmas, LLC, d/b/a Fort Worth Brahmas 1 of 8 D. On -Ice Promotions: The City shall receive two (2) on -ice promotions during the remaining 2012-2013 season. A mutually agreeable number of participants will be chosen to participate in the contests to win prize(s) from the City and the Brahmas. E. Player Appearances: During the term of the Agreement, the City shall have the right to select a minimum total of twelve (12) Brahmas players to make three (3) appearances at City -related events or functions, including, but not limited to, one (1) fundraising tournament to benefit the Fort Worth Junior Golf Tour The dates and times of these appearances will be mutually agreed upon by the City and the Brahmas. F. Public Address Announcement: The City shall receive one (1) 20-second public address announcement during all Brahmas' home games in the remaining 2012-2013 regular season and playoffs. G. Season Tickets: The City shall receive four (4) unrestricted season tickets ($22.00 x 4 Club Level) to all Brahmas home games in the remaining 2012-2013 regular season and playoffs. H. Memorabilia: The Brahmas shall provide the City with signed memorabilia to be displayed in the City's golf clubhouses conveying that Fort Worth Golf is the home of the Fort Worth Brahmas. Also, Brahmas schedules may be displayed at check -in counters in both Fort Worth Golf shops and snack bars, if available. Autographed Jersey: Brahmas shall donate one (1) autographed jersey to be used by the Fort Worth Junior Golf Tour in fundraising efforts for that association. Golf Tournament: Brahmas shall hold a minimum of one (1) Brahmas sponsored golf tournament at one of the City's four golf courses during the term of the Agreement. Each tournament shall have no less than forty-eight (48) registered participants. The dates and times for such tournaments shall be mutually agreed upon by the parties. K. Cross Promotion To the extent allowed by Section D-11 of the City's Administrative Regulations, Fort Worth Golf will place Brahmas logo/link on the home page of its website, and the Brahmas will place Fort Worth Golfs logo on the Brahmas' webpage \here sponsors are listed in scrolling text. The parties will supply the logo and link to be placed on each other's website and agree not to alter or change the other's logo for any reason whatsoever The Brahmas are responsible for ensuring that any use of the City of Fort Worth Logo strictly complies with the City s Logo Use Policy, and all other applicable policies, procedures and regulations of the City and applicable federal copyright and trademark laws. By virtue of this Agreement the Brahmas only acquire the right to use the City's logo in accordance herewith. Neither the Brahmas nor any other person or entity shall acquire any rights of ownership in the City's logo, which all rights shall remain exclusively with the City. The Brahmas agree not to use or allow anyone else to use the City's logo in any manner that would reflect unfavorably on the good name, good will, reputation or image of the City. II. The Brahmas shall receive: A. Complimentary golf, cart usage and range balls (tournament play not included) for current Brahmas players and designated staff for the term of this Agreement. The Brahmas will provide a list of all current players and staff eligible for golf privileges to Fort Worth Golf. Brahmas will also notify Fort Worth Golf of any personnel/player changes during the term of this Agreement. The City understands that the Brahmas roster consists of twenty two (22) players and ten (10) staff members. The Brahmas agree to inform all eligible personnel/players that play at Fort Worth Golf is on a space -available basis, and that access to the facilities must be arranged and agreed to by Fort Marketing Agreement Between the City of Fort Worth And Fort Worth Brahmas, LLC, d/b/a Fort Worth Brahmas 2 of 8 Worth Golf prior to personnel/players arriving at a course. Fort Worth Golf will establish guidelines for reserving available tee times during weekdays, weekends, and holidays. The City does not guarantee the right to play on any given day and all privileges granted hereunder are subject to all City policies rules, and regulations. III Any notice required herein shall be made to the following: If to the City: City of Fort Worth Richard Zavala Director, Parks and Community Servs. 4200 S. Freeway, Suite 2200 Fort Worth, TX 76115 817-392-5717 If to the Brahmas. Fort Worth Brahmas Hockey Club Chad Siewert Director of Sales 8851 Ice House Drive North Richland Hills, Texas 76180 (817) 520-3327 - Phone IV. Miscellaneous provisions: A. All rights not expressly granted herein are reserved by the parties. B. The parties hereto may not assign any rights or delegate any duties under this Agreement without the written consent of the other party, which shall not be unreasonably withheld. C. Unless terminated earlier, this Agreement shall be in effect from the Effective Date and expire on October 1, 2013 Either party may terminate this Agreement without cause upon thirty days written notice to the other party. Said termmation notice shall be considered rendered when placed in the United States Postal Service for delivery to the other party. Notwithstanding the above, either party may terminate this Agreement if the other party is in breach of this Agreement and fails to cure the same after thirty days written notice. E. Each party represents and warrants to the other that it has the right, power and authority to enter into this Agreement and perform the obligations on its part to be performed, and the person whose signature appears below represents that he/she is duly authorized to execute and deliver this Agreement on behalf of such party. F. This agreement may be executed in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument G. Nothing herein contained shall make, or be construed to make, the City or the Brahmas a partner of one another nor shall this agreement be construed to create a partnership or joint venture between any of the parties hereto or referred to herem. Each party shall have the exclusive control of and the right to control its employees and the details of its operations and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, and subcontractors. H. THE BRAIEIMAS AGREE TO AND DO HEREBY DEFEND, INDEMNIFY, AND HOLD THE CITY AND ITS OFFICERS, AGENTS, SERVANTS, REPRESENTATIVES, AND EMPLOYEES HARINILESS FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING, BUT NOT LIMITED TO, ALLEGED DAMAGE OR LOSS TO THE BRAIIMAS' BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING, BUT NOT LEVHTED TO, DEATH, THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASION BY (I) THE BRAHMAS BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (11) ANY NEGLIGENT ACT OR OMISSION OR Marketing Agreement Between the City of Fort Worth And Fort Worth Brahmas LLC, d/b/a Fort Worth Brahmas 3 of 8 INTENTIONAL MISCONDUCT OF THE BRAHMAS AND/OR ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS, RELATED TO THIS AGREEMENT OR THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, REPRESENTATIVES, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF THE BRAHMAS AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. I. The invalidity or unenforceability of any particular provision, or part of any provision, of this Agreement shall not affect the other provisions or parts hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions or parts were omitted. J. This Agreement represents the entire understanding of the parties with respect to the subject matter hereof, supersedes all prior understandings, written or oral, with respect to the subject matter hereof, and may only be amended by the written agreement of an authorized representative of each of the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regards to conflicts of law principles. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division K. The City shall have final approval of all advertising materials. L. This Agreement may not be amended except by written instrument signed by all parties. M. The Brahmas warrant that property protected by copyright will not be reproduced or used unless written permission from copyright or trademark holder is obtained The Brahmas covenant to comply strictly with all laws respecting copyright, royalties, and trademarks and shall not infringe on any related statutory, common law, or other right of any person or entity. The Brahmas agree to assume full responsibility for complying with the Federal Copyright Law of 197 (17 U.S.C. 101, et. seq.) and any regulations issued thereunder, including but not limited to the assumption of any and all responsibilities for paying royalties that are due for the use of copyright works to the copyright owner, or representatives of said copyright owner. City expressly assumes no obligations implied or otherwise, regarding payment or collection of any such fees or financial obligations City specifically does not authorize, permit, or condone the reproduction, or other use of copyrighted materials by the Brahmas or its agents or licensees without the appropriate licenses or permission being secured by the Brahmas in advance It is further agreed THAT THE BRAHMAS SHALL DEFEND INDEMNIFY AND HOLD THE CITY HARMLESS FOR ANY AND ALL CLAIMS ARISING FROM NONPAYMENT TO LICENSING AGENCIES OR DAMAGES ARISING OUT OF THE BRAHMAS' INFRINGEMENT OR VIOLATION OF THE COPYRIGHT LAW AND/OR REGULATIONS. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of the Brahmas. This section shall survive the termination or expiration of this Agreement. N. If either Party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; wars blockades; insurrections; riots epidemics; public health crises; earthquakes; fires* floods; restraints or prohibitions by any court board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal state county or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency Marketing Agreement Between the City of Fort Worth And Fort Worth Brahmas, LLC, d/b/a Fort Worth Brahmas 4 of 8 United States; any arrests and restraints; civil disturbances: or explosions; or some other reason beyond the Party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event If a Force Majeure Event occurs, the City may, in its sole discretion, close or postpone the opening of its community centers, parks, or other City -owned and operated properties and facilities in the interest of public safety and operate them as the City sees fit. The Brahmas hereby waive any claims it may have against the City for damages resulting from any such Force Majeure Event. O. The Brahmas hereby release the City from, and shall be liable and responsible for, any and all property loss, property damage, and/or personal injury, including, but not limited to, death, to any and all persons, of any kind or character, whether real or asserted to the extent caused by the negligent acts or omissions, malfeasance or intentional misconduct of the Brahmas, its officers, agents employees, servants, employees, and contractors. P. The Brahmas shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of this Agreement. Q. Both Parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. V. Insurance Contractor shall procure, pay for and maintain the following insurance written by companies approved by the State of Texas and acceptable to Cit3. The insurance shall be evidenced by delivery to City of executed certificates of insurance and/or certified copies of policies as determined by City. Contractor covenants and agrees to obtain and keep in force during the term of this Agreement, Commercial General Liability Insurance, including Personal Injury Liability, Independent Contractors Liability and Contractual Liability covering, but not limited to the liability assumed under the indemnification provisions of this Agreement, with limits of liability for bodil3 injury (including death) and property damage of not less than One Million Dollars ($1,000 000), with an aggi egate of not less than Two Million Dollars ($2,000,000) . All insurance policies shall include the following: 1) The term of insurance is for the duration of the Agreement; 2) The Contractor is responsible for providing the City a thirty -day (30) notice of cancellation or non - renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or disallow coverage as required herein; 3) All policies shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth 4) a) Any deductible in excess of $5,000.00, for an) policy that does not provide coverage on a first - dollar basis, must be approved by Risk Management. b) Any self -insured retention (SIR) in excess of $25,000.00, affecting required insurance coverage, shall be acceptable to and approved by Risk Management in regards to asset value and stockholders' equity In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also be approved by Risk Management. c) Company issuing the insurance policy shall have no recourse against the City of Fort Worth for payment of any premiums or assessments for any deductibles which all are at the sole risk of Brahmas; Marketing Agreement Between the City of Fort Worth And Fort Worth Brahmas, LLC, d/b/a Fort Worth Brahmas 5 of 8 5) The terms "Owner", "City" or City of Fort Worth shall include all authorities, Boards, Bureaus, Commissions, Divisions, Departments, and Offices of the City and the individual members, employees and agents thereof in their official capacities and/or while acting on behalf of the City of Fort Worth. 6) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's self -insured retention of whatever nature. 7) The City, its officials, employees, agents and officers shall be endorsed as an "Additional Insured" to all policies except Employers Liability coverage. 8) Coverage shall be written on a Per Occurrence basis and the policy shall include Broad Form Property Damage Coverage with an insurance company satisfactory to City. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. When required, Excess Liability shall follow form of the primary coverage. IN WITNESS HEREOF, the parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH (Susan Alanis Assistant City Manager APPROVED AS TO FORM AND LEGALITY Tyler F. , 'lIach Assistan City Attorney ATTEST: Mary Kayser City Secretary CIO Wie&C REQUIRED FT :•IBRA • : 4111, • • 1e =• irec • r . " Sales ,...czwatcr):Q„_ fer he '14, ties.000000�. O O0 pet vt is ap VA p L. O a r pi rug 0PI le 0 ci o -Tart 0 visi°0 0 0 o 1 oa a° Nib Tnte 000000Q SAZS7 HOCKEY, LLC ri ? r(C'r r MTVJ!(,' ill'�l� � v�� • Marketing Agreement Between the City of Fort Worth And Fort Worth Brahmas, LLC, d/b/a Fort Worth Brahmas 6 of 8 I? Exhibit A NYTEX Sections Highlighted in Xellow muoellYmwelllld Edi nll IIIILIIsIIIOIIllIIIALIW!II!SIIIIILIIp!1! III OH IIIII14 iI IIIpIIL 111!IILLI!WII llLOLLuI!IpIrIILIll IJL IIII!JIJII! J ! IIIII!I I u pc' I LI.IiIILLI.III!II!!WII�IIJ�IIUIIILLIIIL19!LLIIIIJVIL y_____ II111 IIII ______ 111111�l IIwyliiaIle iIl„ III4II in ruV el r -f_�r iweLl Marketing Agreement Between the City of Fort Worth And Fort Worth Brahmas, LLC, d/b/a Fort Worth Brahmas 7 of 8 EXHIBIT B Fort Worth Convention Center Section 103- Highlighted in Yellow GLASS: $33 FLOOR: $22 • .\. -_- Section 112 - Highlighted in Yellow PLAZA: $18 i TERRACE: $10 Marketing Agreement Between the City of Fort Worth And Fort Worth Brahmas, LLC, d/b/a Fort Worth Brahmas 8 of 8