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HomeMy WebLinkAboutAgr 2013-06-11 (Youth America's Cup Team USA 45)Town of Tiburon • 1505 Tiburon Boulevard • Tiburon, CA 94920 • P. 415.435.7373 E 415.435.2438 • wwwci.tiburon.ca.us June 11, 2013 Matt Reynolds Team USA45 Racing LLC 3913 Garden Lane San Diego, CA 92130 SUBJECT: Sponsorship Agreement with The Town of Tiburon — Change in Official Name Dear Matt: Per terms of the agreement, we have mutually decided upon the official name for the partnership between USA Team45 Racing and the Town of Tiburon and hereby amend the agreement to read as follows: • Item 2a. — official name changed to read "Official Home of Youth America's Cup Team USA45 (2013)" • Item 3a. — official name changed to read "Tiburon by the Bay Official Home of Youth America's Cup Team USA 45" If you have any questions, please let me know. Very truly yours, Peggy Curran Town Manager USA45 Challenger for the Red Bull Youth America's Cup 2013 CO- OPERATION AND SPONSORSHIP AGREEMENT BETWEEN TEAM USA45- RACING, LLC AND THE TOWN OF TIBURON THIS AGREEMENT (the "Agreement ") is made and entered into between the TEAM USA45- Racing, LLC, a California limited liability company organized for non - profit purposes ( "TEAM USA45 ") and the Town of Tiburon, a California Municipal Corporation ( "Town "). RECITALS 1. TEAM USA45 is the United States challenger for the Red Bull Youth America's Cup, a yachting race for young sailors taking place in San Francisco from September 1St through 4th 2013 ( "Youth Race "). TEAM USA45's official Marketing and Hospitality Agent is Golden Gate Arena, LLC. 2. TEAM USA45 desires to base its pre -race operations in the Town and has asked the Town to participate in a cooperative effort to highlight TEAM USA 45's activities and promote the image of the Town. The Town has agreed to assist TEAM USA45 on the terms and conditions set forth herein. 3. TEAM USA45 represents and believes that the services provided and exchanged between the parties pursuant to this Agreement has a commercial value of $250,000, which estimate shall not be enforced against the Town. The Town has not evaluated this estimate and expresses no opinion on it other than to agree that the Agreement provides for valuable consideration from both parties. 4. In consideration of the respective rights and obligations under this Agreement, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TEAM USA45 and the Town agree to the following terms and conditions, including the Standard Terms and Conditions attached hereto and incorporated by reference herein: AGREEMENT 1. Term. The term of this Agreement shall commence upon execution and, except as otherwise provided herein, terminate on December 31, 2013. ( "Term "). 2. Town - Rights and Obligations. 6/4/2013 11:50 AM a. Subject to paragraph 2h, beginning on the effective date of this Agreement and continuing in perpetuity, the Town shall have the exclusive right to designate itself as the "Official Home of 1St TEAM USA45 Challenger Red Bull Youth America's Cup (2013) (Or other similar designation as mutually agreed between the Town and TEAM USA45). For this purpose of this designation, Town shall have the right to use the official mark of TEAM USA45, which is depicted in Exhibit A, which is attached hereto and incorporated herein by reference ( "TEAM USA45 Mark "). b. During the term of this Agreement, the Town shall have the non - exclusive right to authorize merchants and businesses in the Town of Tiburon to describe themselves as Official Supporters of TEAM USA45 Challenger for the 2013 Youth America's Cup ( "Official Sponsors "), upon approval from Team USA45. The right shall commence upon Town authorization and continue until one year after the Youth Race. The Town will grant this authority to merchants and businesses that provide specific cost savings, revenue generating services or other material benefits to TEAM USA45. In the event that an Official Supporter provides a material benefits to TEAM USA45 not provided by other Official Sponsors, the Town may authorize the use of an "Official" designation that identifies the nature of the unique service with approval from Team USA45. Examples: Official Tiburon Hotel of TEAM USA45, Official Tiburon Caterer TEAM USA45, etc. c. The Town shall include the TEAM USA45 Mark that links to its official website in the Town website, social media pages and other forms of advertising employed during the course of this Agreement. d. The Town may, but is not required to, create a dedicated micro -site on its official town website dedicated to TEAM USA45. e. TEAM USA 45 shall provide the Town with the names, images and likenesses of TEAM USA45 team members, both individually and as a team. The Town may use said names, images and likenesses as it deems appropriate to further the purposes of this Agreement. f. The Town authorizes the local chamber of commerce to hold special events on Friday nights during the summer, known as "Friday Nights on Main" ( "Friday Nights "). The Town will arrange to provide TEAM USA45 with a location at six Friday Nights free of charge, the dates to be arranged by mutual agreement, where Team Members can meet the community, sign autographs and sell merchandise and other products benefiting the team. g. The Town will promote the TEAM USA45 /Town relationship by the following methods. i. The Town will organize and hold at least one fund raiser benefiting TEAM USA45. This fund raiser will be held on private property at no expense to the Town or TEAM USA45. 2 6/4/2013 11:50 AM ii. The Town will advertise the fund raiser in the Town's monthly newsletter and on its website. iii. If TEAM USA45 holds any other events in the Bay Area, the Town will advertise said event in the Town's monthly newsletter and on its website. iv. The Town will include on its website and in its monthly newsletter information about how local business and the public can support TEAM USA45 in the Youth Race. h. The Town will submit all desired uses of Team USA45 logos, marks, likenesses and any communication, advertising or promotion, as well as any proposed or suggested distribution of affiliation or rights to 3rd parties, or any other use of Team USA45 and /or Youth America's Cup intellectual property in association with any aspect of this agreement, to Team USA45 for approval prior to use, distribution or appointment, which shall not be unreasonably withheld. This section shall not apply to those uses that are expressly authorized by this Agreement. 3. TEAM USA45's Obligations_ a. The Town is finalizing a brand or brands to be displayed as set forth in this Agreement. The Town shall have the right to prior approval of any such Town Brand use or application that the Team wishes to implement, which approval shall not be unreasonable withheld. Wherever this Agreement refers to placement or display of a "Town Brand," that reference shall mean the approved Town Brand that the Town selects in its for the specific use. b. TEAM USA45 will place a 2.5 square meter rendition of a Town Brand on TEAM USA45 training and racing vessels on the outside rear location on each hull as shown in Exhibit B, which is attached hereto and incorporated herein by this reference. c. Beginning on the effective date of this Agreement and continuing until September 5th 2013, TEAM USA45 will incorporate a Town Brand into all Sponsor Partner signage at its Base facility in San Francisco. d. Beginning on the effective date of this Agreement and continuing until December 31 St, 2013, all TEAM USA45 Casual (off - water) Clothing — Specific brand location and product lines will include a Town Brand. e. Beginning on the effective date of this Agreement and continuing until December 31 St 2013, TEAM USA45 will incorporate a Town Brand into Official Team Letterhead. f. Beginning on the effective date of this Agreement and continuing until December 31s' 2013, TEAM USA45 shall reference "Tiburon by the Bay" as the "Official Home of TEAM USA45 2013 Challenger for the RED BULL Youth America's Cup" or other such designation as the parties may mutually agree, on any TEAM USA45 website, including a 2 -way hyperlink between their respective websites, and, wherever possible, including a reference to Tiburon in any of its external communications. 6/4/2013 11:50 AM g. Beginning on the effective date of this Agreement and continuing until December 31" 2013, TEAM USA45 will include a Town Brand in its marketing and public relations programs including website and general media and shall identify "Tiburon by the Bay" as the "Official Home of TEAM USA45 Challenger for the 2013 Youth America's Cup." h. Beginning on the effective date of this Agreement and continuing until December 31St 2013, TEAM USA45 will use its best efforts to include a reference to "Tiburon by the Bay" as the Official Home of TEAM USA45 Challenger Youth America's Cup" into media that may come under its control through the event from event organizers, event title sponsor or event broadcaster and other official media partners. i. The TEAM USA45 shall take all reasonable and appropriate actions to promote the Town throughout the Term of this Agreement. j. Team USA45 will submit all desired uses of Town logos and marks and any communication, advertising or promotion, as well as any proposed, or any other use of Town of Tiburon intellectual property in association with any aspect of this agreement, to the Town of Tiburon for approval prior to use or distribution. This section shall not apply to those uses that are expressly authorized by this Agreement. k. TEAM USA45 will use its best efforts to support the Town as it organizes its merchants and businesses to market of tickets and hospitality packages benefiting TEAM USA45 and promoting the Town. 1. As reasonably available and mutually agreed, TEAM USA45 shall provide the Town with exclusive or special experiences to interact with the team, watch the Youth America's Cup races, receive behind the scenes tours and participate on the water for use in Town - organized fundraising efforts, auctions and /or promotions that benefit Team USA45 and help promote the Town. 4. Special Events. In the event that TEAM USA45 elects to hold any special events on Town property to further the purposes of this Agreement, such events shall be subject to the Town's normal requirements, including, without limitation, special event insurance coverage, with an endorsement providing the Town with primary, non - contributory coverage. The Town shall provide reasonable support during the application process and during the event itself, provided that such support does not interfere with the Town's normal operations or entail extra cost for the Town. 5. Logistical Support. The Town will use its best efforts to obtain logistical support for TEAM USA45 by requesting local yacht clubs to provide the following services: a. Sailing Compound - An area(s) for operating TEAM USA45's sailing campaign, which shall include a covered, enclosed area to meet, securely maintain equipment and generally proceed with all things necessary to support the Youth America's Cup sailing program both on the water and on shore. 4 6/4/2013 11:50 AM Exhibit A TEAM USA45 - OFFICIAL MARK USR45 Exhibit B TOWN BRAND - Location on Hull Exhibit C AGREEMENT TERMS AND CONDITIONS 1. NOTICES TO TEAM USA45 Racing. All notices hereunder to TEAM USA45 Racing, LLC shall be made to the following address: Matt Reynolds (reynolds sailkyahoo.com), Fax: +1.619.374.2083, Tel: +1.619.806.4134, TEAM USA45 Racing, LLC, 3913 Garden Lane, San Diego, CA, 92106, with a copy to Robert Copeland (RCopelandAsheppardmullin.com), Fax: +1.858.847.4873, Tel: +1.858.720.7407, Sheppard Mullin, 12275 El Camino Real, Suite 200, San Diego, CA, 92130. 2. NOTICES TO TOWN OF TIBURON. All notices hereunder to the Town of Tiburon shall be made to the following address: Office of the Town Manager, Tiburon Town Hall, 1505 Tiburon Boulevard, Tiburon, CA 94920. 3. FORCE MAJEUR. If any Party is totally or partially prevented from performing any of its obligations under this Agreement as a result of an Event of Force Majeure, it shall promptly serve written notice on the other Party specifying the matter(s) constituting the Event of Force Majeure and providing the other Party with its best estimate of the likely extent and duration of the Event of Force Majeure. The Party prevented from performing its obligations under this Agreement by the Event of Force Majeure shall be excused performance of such obligations from the date of such notice for so long as the Event of Force Majeure shall continue provided that: (a) such Party, throughout the duration of the Event of Force Majeure, shall take all reasonable steps to mitigate the effects of the Event of Force Majeure; and (b) upon cessation of the Event of Force Majeure, the Party affected shall promptly serve notice in writing on the other Party of such cessation. If performance by a Party of its obligations under this Agreement is only partially affected by an Event of Force Majeure, such Party shall at the sole option of the other Party nevertheless remain liable for the performance of those obligations not affected by the Event of Force Majeure. Neither Party shall be liable to the other for any loss, damages, costs, expenses or other claims for compensation arising as a direct or indirect result of breach or non - performance of this Agreement due to an Event of Force Majeure. 4. RELEASE AND INDEMNIFICATION. Tiburon shall hereby release and agree to indemnify, defend, and hold harmless the TEAM USA45 Racing, LLC and any affiliates, officers, directors, employees, vendors or agents thereof from and against any and all liabilities, damages, injuries, claims, suits, judgments, causes of action, and expenses (including reasonable attorneys' fees, court costs and out -of- pocket expenses) suffered or incurred as a result of (i) any breach of any obligation of Tiburon in performance of this Agreement, or (ii) Tiburon's use of the benefits. This provision will survive the termination and /or expiration of this Agreement. TEAM USA45 shall indemnify, defend, and hold harmless Tiburon and its officers, employees, and agents ( "Town indemnitees "), from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable attorneys' fees and costs of litigation ( "claims "), arising out of the Town's performance of its obligations under this agreement or out of 6/4/2013 11:50 AM the operations conducted by Tiburon, including Tiburon's active or passive negligence, except for such loss or damage arising from the sole negligence or willful misconduct of Tiburon. In the event the Town indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from TEAM USA45's performance of this agreement the TEAM USA45 shall provide a defense to the Town indemnitees or at Tiburon's option reimburse the Town indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. This provision will survive the termination and /or expiration of this Agreement. 5. INTELLECTUAL PROPERTY. In consideration for the benefits conferred under this agreement, each party grants the other a royalty free license to such party's Intellectual Property throughout the Term of this Agreement, including names, marks, logos, images, video and photos and any other intellectual property as may be mutually agreed in order to assist each party in exploiting any marketing programs or initiatives that it wishes to create in order to derive benefit from this agreement. Upon termination or expiration of this Agreement, each party's usage of the other's Intellectual Property shall cease except as expressly provided in this Agreement or for historical and non - commercial use. Each party acknowledges that the other party's Intellectual Property is owned by the party and it shall have no right, title, and /or interest to the other party's Intellectual Property other than as stated herein. Except as other expressly authorized herein, nothing in this Agreement constitutes an agreement to permit the use or license of the intellectual property, including trademarks, and the name of the America's Cup or organizations associated with the conduct and organization of the 2013 America's Cup. The Town acknowledges that Team has agreements and obligations with ACRM, ACEA, OTUSA and Red Bull relative to the 2013 Red Bull Youth America's Cup. If there are any issues that arise from those agreements and obligations, both parties to this agreement will use reasonable best efforts to work around such agreements and obligations to fulfill the purpose of this Agreement. 6. TERM & TERMINATION. This agreement shall come into effect from the date of execution and continue through December 31, 2013. Either party may at any time give written notice to the other to termination this agreement with immediate effect if. (a) the other party has committed (i) a material breach of any obligation under this agreement which breach is incapable of remedy; or (ii) a material breach of any of its obligations under this agreement and has not remedied such breach (if the same is capable of remedy) within thirty (30) days of written notice of such material breach; or (b) either parry goes into liquidation, whether compulsory or voluntary, or is declared insolvent, or if an administrator or receiver is appointed over the whole or any part of its assets, or if it enters into any arrangement for the benefit of or compounds with its creditors generally, or ceases to carry on business. 7. NO ASSIGNMENT. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party. 8. MISCELLANEOUS. If any provision of this Agreement is invalid or unenforceable by reason of any applicable law, the remaining terms and provisions of this Agreement shall not be effected thereby and shall be valid and enforced to the full extent permitted by law. The failure of any party hereto to insist upon strict compliance with this Agreement, or any of the terms and conditions hereof, shall not be deemed a waiver of any rights or remedies that such party may have. Each party represents that it has full authority to enter into this Agreement, grant the rights and benefits 10 6/4/2013 11:50 AM herein described, and satisfy the obligations hereunder, without violating the rights of any third parties. Nothing in this Agreement shall be construed as creating a partnership, employer /employee, principal /agent, nor joint venture relationship between TEAM USA45 and Tiburon. This Agreement constitutes the entire agreement between TEAM USA45 and Tiburon with respect to the subject matter of this Agreement and supersedes all prior oral or written agreements. No amendment of this Agreement shall be effective unless agreed to in writing by both parties. This Agreement may be signed by the parties in separate counterparts, each of which when signed and delivered will be deemed an original, but all such counterparts together will constitute one and the same instrument. Tiburon shall perform its obligations in compliance with all applicable federal, state, and local statutes, acts, ordinances, laws, rules, regulations, codes, and standards. 9. GOOD FAITH NEGOTIATION. If a controversy, dispute or claim of whatever nature arising out of, in connection with, or in relation to the interpretation, performance or breach of this Agreement, other than a claim for Monetary Breach, arises between the parties hereto, the parties shall first attempt to resolve such matter through good faith negotiation. However, such negotiation shall not delay, waive or invalidate the timing and effect of any breach or termination of this Agreement or the right of the non - breaching party to exercise its rights and remedies under this Agreement and under applicable law. 10. SELF -HELP AND PROVISIONAL REMEDIES. No provision hereof shall limit the right of any party to exercise self -help remedies such as setoff, removal of signage, or to obtain provisional or ancillary remedies, including, without limitation, injunctive relief, sequestration, attachment, garnishment or the appointment of a receiver, from a court of competent jurisdiction before, after or during the pendency of any arbitration or other proceeding. The exercise of any such remedy shall not waive the right of any party to compel arbitration or negotiation hereunder. 11. GOVERNING LAW; VENUE.The laws of the State of California shall govern this Agreement. In the event that a dispute arises regarding this Agreement, the County of Marin shall be the venue resolving said dispute. 6/4/2013 11:50 AM b. Boat Yard - Access to an area where TEAM USA45 may pull its vessels out of the water as necessary to perform repairs and maintenance. Area will need to be large enough to house a crane for pulling the wing from the AC45. c. Access to a physical conditioning, exercise, and weight lifting facility where team members and coaches can work -out as necessary. d. Use of an office location and address, capable of receiving deliveries, wired for phone and intemet and large enough to accommodate a minimum of 4 working positions. e. Housing accommodations for 15 people beginning June 1 through September 23, 2013. f. Meal Facilities — provide discounted or free food supplies, access to a kitchen for daily use and/or discounted meal options at local restaurants. g. The Town will organize and attend meetings between local merchants and businesses and TEAM USA45 representatives, to solicit their support and active participation in supporting the Tiburon and TEAM USA45. 6. Best Efforts Obligations. The parties acknowledge that the Town's primary obligation under this Agreement is to assist TEAM USA45 in obtaining support from community merchants and businesses and the Town cannot guarantee that TEAM USA45 will actually obtain said support. The parties also acknowledge that the needs of TEAM USA45 lie outside the Town's core function as a municipal government. Accordingly, the Town's obligations under this Agreement are on a best efforts basis. Notwithstanding the foregoing, TEAM USA/45 cannot perform its obligations under this Agreement without the support services listed in Section 5 (a), (b), (d), (e) and (f) ( "Core Support Services "). If the Parties are unable to procure the Core Support Services by May 31, 2013, either party may terminate this Agreement with no further liability or future obligation of any kind to the other party. The Parties will confer regarding the Core Support Services no later than May 31, 2013 to confirm whether they have secured said services. 7. This Agreement includes the additional terms and conditions set forth in Exhibit C. which is attached hereto and incorporated herein by reference. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the day and year first herein above written. TEAM USA45- Racing, LLC BZe:�IT-,j N Title: Date: 6/4/2013 11:45 AM TOWN By: Name: ,MA Title: Date: 6 11-13 APPROVED AS TO FORM: Ann R. Danforth, Esq. Town Attorney, Town of Tiburon 6/4/2013 11:50 AM m Attorney, TEAM USA 45