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HomeMy WebLinkAboutResolution - 2014-R0435 - Mackenzie Park Amphitheatre Naming Agreement - George Mcmahan Developement LLC - 12/18/2014Resolution No. 2014-R0435 Item No. 6.13 December 18,2014 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute a Mackenzie Park Amphitheatre Naming Agreement, by and between the City of Lubbock and George McMahan Development, LLC, and Lubbock Moonlight Musicals, Inc., and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on December 18, 2014 .4&11= 009 C. ERTSON, MAYOR ATTEST: Reb cca Garza, City Secretat APPROVED AS TO CON NT: Scott Snider, Assistant City Manager/Community Services • a• • • IT IA mWCty Attorney RES.Agrmt-Mackenzie Park Amphitheatre 12.3.14 Resolution No. 2014-RO435 STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § MACKENZIE PARK AMPHITHEATRE NAMING AGREEMENT This Agreement is entered into by the CITY OF LUBBOCK (referred to herein as "City"), a Home Rule Municipality of Lubbock County, Texas, and GEORGE McMAHAN DEVELOPMENT, LLC, a Texas limited liability company (referred to herein as "Naming Sponsor"), and LUBBOCK MOONLIGHT MUSICALS, INC., a Texas non-profit organization ("LMM"). WITNESSETH: WHEREAS, the City and LMM desire to grant the naming rights for the Mackenzie Park Amphitheatre to the Naming Sponsor, and the Naming Sponsor desires to acquire the naming rights from City and LMM, all as hereinafter described in more detail, and for the consideration set forth; and WHEREAS, City, Naming Sponsor, and LMM desire to set the terms of the Agreement and the beginning payment date for acquiring the Naming Rights for the outdoor theatre in Mackenzie Park as described herein; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows. 1. Name of Facility and Term of Asreement. During the Term of this Agreement, which shall begin on January 1, 2015, and continue in effect until it expires and is not extended. The initial term of this Agreement shall be for a term of three years ending on December 31 of the third year (2017) (the "Expiration Date"). The Agreement may be extended for two (2) additional three (3) year terms upon written approval of the parties hereto. The Amphitheatre shall be named "Moonlight Musicals Amphitheatre" or such name as designated pursuant to Section 3 (the "Facility Name"). The City agrees to use reasonable commercial efforts to identify the Amphitheatre by the Facility Name in all official documents, press releases, directional signage, tickets, brochures, marketing and promotional materials, schedules, letterhead stationery and promotional items in any form produced or disseminated by or for them from the date hereof until the Expiration Date. The City also agrees from the date hereof until the Expiration Date to use reasonable commercial efforts to require each person that contracts for the use of the Amphitheatre to refer to and identify the Amphitheatre by the Facility Name in all promotional and advertising materials. Occasional immaterial failure to use the Facility Name shall not be deemed to be a breach of this Agreement. Amphitheatre Naming Agreement 2. Naming Sponsor Responsibilities. The consideration for the commitments and promises set forth herein is the initial payment by Naming Sponsor to the City of Lubbock in the amount of fifteen thousand and No/100 Dollars ($15,000.00), due upon execution of this Agreement. Subsequent installments of the Naming Sponsor Fee shall be due and payable on December 31" of each year thereafter so long as this Agreement remains in effect. The amount of the annual Naming Sponsor Fee shall be $15,000.00, to be paid annually to the City of Lubbock, in a form acceptable to the City, commencing on the First Payment Date. None of the Naming Sponsor Fee shall include any fees and commissions payable to third parties engaged by or claiming through Naming Sponsor, if any, which shall be the sole responsibility of and paid by, the Naming Sponsor. Naming Sponsor shall be liable for all applicable federal, state or local taxes or charges, if any, levied, assessed or otherwise due with respect to the payments made by Naming Sponsor hereunder. 3. Change of Facilities Name. Although Naming Sponsor does not anticipate or plan any change in the Facility Name, Naming Sponsor shall be entitled to change the Facility Name to reflect a different name (the "New Name") upon three (3) months' written notice to the City and LMM. If and when a New Name is selected by Naming Sponsor, such New Name shall become the Facility Name, provided that Naming Sponsor and the City shall consult and cooperate with each other concerning plans and logistics to make all necessary changes, including to signage, necessitated by said name change. Naming Sponsor agrees that it will be solely responsible for all costs and expenses that may be incurred by City, or any of its affiliated entities as a result of such change. 4. Placement and Use of Facility Name. During the Term, the City agrees to display signage as deemed appropriate, in the sole and exclusive judgment of the City. Any modifications elected by Naming Sponsor shall be subject to City approval. 5. Trademarks and Licensing. LMM warrants that it is a licensed user of any trademarks, service mark, trade names and/or logos used in the Facility Name; and City acknowledges that LMM, or one of its affiliates is the sole owner of the trademarks, service marks, trade names and/or logos used in the Facility Name. LMM hereby grants a license to the City to use the Facility Name, and to sublicense others to use the Facility Name, and to subcontract others to manufacture products incorporating or bearing the Facility Name for food service, related supplies, Amphitheatre supplies, furniture, equipment, novelties, souvenirs, publications and other products used in the operation of the Amphitheatre, the promotion of City and the Amphitheatre, and the presentation of other events in the Amphitheatre. All such products may be used, consumed, given away, sold or held for sale. This license shall be a non-exclusive license to City. City shall not be obliged to pay or to cause any sublicense to pay any royalty or other fee to LMM or Naming Sponsor with respect to any such use. City agrees that all products and/or services offered by the City or its sublicensees that use or contain the Facility Name shall generally be of a nature and quality commensurate with the nature and quality of the current products and/or services offered by the City or its sublicensees. Amphitheatre Naming Agreement Page 2 6. Reserved Rights. Naming Sponsor and LMM acknowledge the right of City to designate advertisers in the Amphitheatre. Unless approved by Naming Sponsor City agrees that it will not accept or allow advertising in the Amphitheatre for products or services that are directly competitive with the primary commercial activity of Naming Sponsor or LMM, with the following permitted exceptions: (a) The display during an event of temporary signs, banners, placards, or other displays (that are appropriate in terms of size and prominence for the intended purpose) erected by an event sponsor, promoter sponsor or participant, even though such display may constitute competitive advertising; (b) The advertising materials naming an event sponsor for a particular event developed and distributed by a sublicense of City. 7. Use of Moonlight Musicals Name. Subject to the terms of this Agreement, LMM hereby grants to the City, during the Term, an exclusive, royalty -free, irrevocable license to use the Facility Name, logo and the goodwill associated therewith in connection with the operation, marketing and promotion of the Amphitheatre and as otherwise necessary to allow the City to designate the Amphitheatre by the Facility Name and to fulfill such Party's obligations hereunder; provided, however, that LMM retains the exclusive right to use or license or otherwise deal with the name "Moonlight Musicals" and the right, subject to City approval, which approval shall not be unreasonably withheld, to use the Facility Name and references to the support of the City represented by this Agreement in advertising and marketing of Moonlight Musicals or LMM's other activities. As between the Parties to this Agreement, LMM shall own all right, title and interest in and to the Moonlight Musicals name. 8. End of Term of Agreement. At the end of the Term of this Agreement, the following may occur: (a) The Agreement may be extended for two (2) additional three (3) year terms upon written approval of the parties hereto. All terms, conditions and covenants of this Agreement apply to the extended term, if any, of this Agreement. (b) If the City desires to include any business name as part of the Facility Name at the end of the Initial Term of this Agreement, or any extensions thereof, Naming Sponsor will have a right of first refusal to continue as the entity named in the Facility Name on essentially the same terms as any other business may offer in writing for such rights. Naming Sponsor must either elect to match such terms or communicate to City its unwillingness to match such terms within thirty (30) days of the actual receipt by Naming Sponsor of such a written offer. (c) If Naming Sponsor desires to remove the Facility Name from the Amphitheatre, it may do so at its own expense. Amphitheatre Naming Agreement Page 3 (d) If the City desires to remove the Facility Name from the Amphitheatre it shall present in writing to Naming Sponsor its desire to remove signage. 9. Assignment. This Agreement, along with the rights and obligations of each party hereunder, is not assignable without the prior, written consent of the non - assigning party. 10. Notices. All notices, offers, consents or other communications required or permitted hereunder shall be in writing and shall be deemed duly given if delivered personally or by messenger or if sent by certified mail, postage fully prepaid, addressed to the appropriate address set forth below, or to such other person or address as either party may designate by notice to the other party given as herein provided: If to Naming Sponsor: With a copy to: George McMahan Development, LLC George McMahan, Manager 7703 LaSalle Avenue Lubbock, Texas 79424 If to City: City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Attention: Brooke Witcher Managing Director, Cultural Facilities Tito LMM.- Gerald T. Dolter 1901 29`h Street Lubbock, Texas 79411 With a copy to: City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Attention: Chad Weaver City Attorney With a copy to: 11. Authority. Each Party has full power, authority and legal right to enter into this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly authorized by all requisite action of the directors, shareholders, City Council or appropriate governing body of each Party hereto. Upon execution and delivery by each Party of this Agreement, it will be a valid and binding obligation of each Party, enforceable in accordance with its terms. Amphitheatre Naming Agreement Page 4 12. Governing Law. This Agreement shall be governed by and construed in conformity with the laws of the State of Texas. This Agreement calls for performance in Lubbock County, Texas, and jurisdiction and venue for any and all disputes arising out of or related to this Agreement shall lie exclusively in the district courts of Lubbock County, Texas. 13. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law; but if any provision or the application thereof to any party or circumstance is prohibited by or invalid under applicable law, that provision shall be effective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or the application of such provision to other Parties or circumstances. 14. Non -Waiver. No delay or omission of any party to exercise rights or powers under this Agreement shall impair any such right or power or shall be construed to be a waiver of any default. No waiver of any default shall be construed, taken, or held to be a waiver of any other default, or waiver or consent to any further or succeeding default of the same nature. 15. Successors and Assigns. This Agreement and all of the terms and provisions hereof shall be binding upon and shall inure to the benefit of each of the Parties, their successors and assigns. 16. Non -Arbitration. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, the former shall control. 17. Entire Agreement. This Agreement contains the entire understanding between the Parties and supersedes any prior understandings and written or oral agreements between them respecting this subject matter. There are no representations, agreements, arrangements, or understandings, oral or written, between the Parties relating to the subject matter of this Agreement that are not fully expressed in this Agreement. Amphitheatre Naming Agreement Page 5 Executed this 18th day of December '2014. CITY OF LUBBOCKGEORGE McMAHAN DEVELOPMENT, LLC BY: �BY: ///1 �, GL OBTSON,MAYOR G50RGE McMAHAN, MANAGER ATTEST: Re ecca Garza, City-Secre . y APPROVED AS TOCONTE `Scott Snider, Assistant City Manager Community Services APPROVED AS TO FORM: Mi chell St4terwitite First Assistant omey Naming Agrmnt-Amphitheatre 12.3.14 Date: LUBVGERAD�T11QPP LIGHT MUSICALS, INC BY:��RESIDENT Amphitheatre Naming Agreement Page 6