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HomeMy WebLinkAboutResolution - 2012-R0243 - Agreement - City Bank - Naming Rights, Coliseum And Auditorium - 06/07/2012Resolution No. 2012-RO243 June 7, 2012 Item No. 6.4 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 for and on behalf of the City of Lubbock, an Agreement for the naming rights of the Lubbock Municipal Coliseum and the Lubbock Municipal Auditorium, by and between the City of Lubbock and City Bank, 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 June 7, 2012 GLEN OBERTSON, MAYOR ATTEST: .00-0 � - - - 5-11c Rebe a Garza, City Secretary APPROVED AS TO CONTE T: �f W1 1 Scott Snider, Assistant City Manager Community Services APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vwxcdocs"RES.Naming Rights Agrmt-City Bank May 29, 2012 Resolution No. 2012-RO243 NAMING RIGHTS AGREEMENT This Agreement is dated as of June 7, 2012 , and is between City Bank, a Texas banking association, whose address for notice is 5219 City Bank Parkway, Lubbock, Texas, 79407, c/o Cory Newsom, President, and the City of Lubbock (the "City"), whose address for notice is 1625 13th Street, Lubbock, Texas 79401 c/o Lee Ann Dumbauld, City Manager. WHEREAS, the City owns, operates, and leases the Lubbock Municipal Coliseum and the Lubbock Municipal Auditorium (the "Facilities") for various sports, cultural, civic, and entertainment events. WHEREAS, City Bank is proud of its association with the City and the surrounding area and wishes to show its ongoing support of the community. WHEREAS, the City desires to grant the naming rights for the Facilities to City Bank, and City Bank desires to acquire the naming rights from City, all as hereinafter described in more detail, and for the consideration set forth. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows. 1. Name of Facilities and Term of Agreement. During the Term of this Agreement, which shall begin on January 1, 2012 and continue until December 31, 2016 ("Expiration Date"), the Facilities Name shall be "City Bank Coliseum" and "City Bank Auditorium" or such name as designated pursuant to Section 3 (the "Facilities Name"). The City agrees to use reasonable commercial efforts to identify the Facilities by the Facilities Name in all official documents, press releases, directional signage, electronic message signs, scoreboards, 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 Facilities to refer to and identify the Facilities by the Facilities Name in all promotional and advertising materials. Occasional immaterial failures to use the Facilities Name shall not be deemed to be a breach of this Agreement. If a capital improvement project takes place on the Facilities and the Facilities are, therefore, not available to the public, then the Term of this Agreement shall be extended by the number of days the Facilities are not available for public use due to the project. This provision shall only apply to a capital improvement project that is longer than thirty (30) days in duration. This provision shall not apply to maintenance of the Facilities. 2. Consideration. The consideration for the commitments and promises set forth herein is the payment by City Bank of the amount of Four Hundred Thirty -Two Thousand and no/100 Dollars ($432,000.00)), due upon execution of this Agreement. 3. Change of Facilities Name. Although City Bank does not anticipate or plan any change in its corporate name, if City Bank (i) undergoes a name change, or (ii) desires to use the Naming Rights Agreement — City Bank Page 1 of 6 name of one of its affiliates in the Facilities Name, City Bank shall be entitled to change the Facilities Name to reflect a different name (the "New Name") upon three (3) months' written notice to the City. If and when a New Name is selected by City Bank, such New Name shall become the Facilities Name, provided that City Bank and the City shall consult and cooperate with each other concerning plans and logistics to change the Facilities Name to the New Name. In the event that City Bank proposes to change the Facilities Name, City Bank 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 Facilities Name. During the Term, the City agrees to display signage as depicted in Exhibit A. Any modifications elected by City Bank shall be subject to City approval. 5. Trademarks and Licensing. City Bank warrants that it is a licensed user of any trademarks, service mark, trade names and/or logos used in the Facilities Name; and City acknowledges that City Bank, or one of its affiliates is the sole owner of the trademarks, service marks, trade names and/or logos used in the Facilities Name. City Bank hereby licenses City to use the Facilities Name and to sublicense others to use the Facilities Name and to subcontract others to manufacture products incorporating or bearing the Facilities Name for food service, related supplies, Facilities supplies, furniture, equipment, novelties, souvenirs, publications and other products used in the operation of the Facilities, the promotion of City and the Facilities and the presentation of other events in the Facilities. 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 City Bank 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 Facilities 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. 6. Right to Scoreboard Advertising. City Bank may request from City the right to utilize the scoreboard for advertising, however, such right shall not be exclusive and any such right shall be the subject of a separate agreement requiring additional consideration. 7. Reserved Rights. City Bank acknowledges the right of City to designate advertisers in the Facilities. Unless approved by City Bank, City agrees that it will not accept or allow advertising in the Facilities for products or services that are directly competitive with City Bank 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. Naming Rights Agreement — City Bank Page 2 of 6 8. Use of City Bank Name. Subject to the terms of this Agreement, City Bank hereby grants to the City, during the Term, an exclusive, royalty -free, irrevocable license to use the Facilities Name, logo and the goodwill associated therewith in connection with the operation, marketing and promotion of the Facilities and as otherwise necessary to allow the City to designate the Facilities by the Facilities Name and to fulfill such Party's obligations hereunder; provided, however, that City Bank retains the exclusive right to use or license or otherwise deal with the name "City Bank" and the right, subject to City approval, which approval shall not be unreasonably withheld, to use the Facilities Name and references to the support of the City represented by this Agreement in advertising and marketing of City Bank. As between the Parties to this Agreement, City Bank shall own all right, title and interest in and to the City Bank name, logo and City Bank signage. 9. Maintenance and Upkeep. City Bank shall be responsible for costs associated with purchase, installation (including electrical or structural modifications), and maintenance of City Bank signage. City Bank and its designees shall have the right to inspect the City Bank Facilities signage as reasonably necessary to comply with this Section 9. The City shall not allow the Facilities or any publication or broadcast containing the Facilities Name to appear or be utilized in any way that, in the reasonable determination of City Bank, disparages City Bank. City Bank shall not be responsible for inspection or maintenance of the Facilities. 10. Special Rights of Termination. Notwithstanding anything contained in this Agreement to the contrary, if during the Term, the City shall permanently cease to utilize the Facilities as a location for sports, cultural, civic, and entertainment events for any reason, City Bank shall be free, upon five (5) days prior written notice to the City, to terminate this Agreement as to the remainder of the Term. It is expressly agreed that the exercise of such termination rights will extinguish all of City Bank's obligations under this Agreement. It is further agreed that City Bank shall incur no liability to the City for exercising such right. 11. Additional Naming Rights. If the City begins design or construction of (or receives voter approval to construct) a new coliseum or auditorium during the Term of this Agreement, City Bank shall have a right of first refusal to acquire the exclusive naming rights to said facility or facilities on terms mutually agreeable to the City and City Bank. Additionally, during the period described in this Section 11 the City shall present in writing to City Bank any offers related to the naming rights of said new facilities. City Bank must either elect to match such terms or communicate to the City its unwillingness to match such terms within sixty (60) days of the actual receipt by City Bank of such a written offer. 12. End of Term of Agreement. At the end of the Term of this Agreement, the following may occur: (a) If either party desires to extend the term of this Agreement, that party shall notify the other party in writing at least sixty (60) days prior to the Expiration Date of its desire to extend the Term. If the other party also desires to extend the Term, both parties shall enter into negotiations in an effort to come to an agreement as to an extension. An extension shall only be entered if the parties agree and the extension is formally authorized by the governing body of each party. Naming Rights Agreement — City Bank Page 3 of 6 (b) If the City desires to include any business name as part of the Facilities Name at the end of the Term of this Agreement, or any extensions thereof, City Bank will have a right of first refusal to continue as the entity named in the Facilities Name on essentially the same terms as any other business may offer in writing for such rights. City Bank 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 City Bank of such a written offer. (c) If City Bank desires to remove its business name from the Facilities it may remove the City Bank name from the Facilities and any City Bank signage at its own expense. (d) If the City desires for City Bank to remove any business name from the Facilities it shall present in writing to City Bank its desire for City Bank to remove all City Bank signage. City Bank shall remove the City Bank name from the Facilities and any City Bank signage at its own expense. 13. Assignment. The rights and obligations of City Bank under this Agreement may be assigned by City Bank with the consent of the City to (i) any person or entity succeeding to all of City Bank's rights and obligations, (ii) any person or entity who acquires all or substantially all of City Bank's stock or assets, or (iii) any affiliate of City Bank; provided that such assignee shall have assumed without qualification responsibility for performance of all the obligations of City Bank under this Agreement. In connection with any such assignment, City Bank shall provide the City with sixty (60) days prior written notice of the proposed assignment and shall require the assignee to execute an assignment agreement in such form and content as reasonably acceptable to the City. The rights and obligations of the City under this Agreement may not be assigned by the City without the consent of City Bank. 14. Notices. All notices, offers, consents, or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered as properly given or made if delivered by registered or certified U.S. mail with return receipt requested, at the addresses set forth in the paragraph first written above. 15. 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. 16. 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. 17. 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 Naming Rights Agreement — City Bank Page 4 of 6 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. 18. 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. 19. 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 and of any holder of record or beneficial ownership of, leasehold interest in, or right or obligation to operate or manage the Facilities and their respective legal representatives, heirs, successors, and assigns, only in so far as such assignment is contemplated under Section 13. 20. 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, this provision shall control. 21. 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. i CITY BANK By: COR NEWSOM Its: President Naming Rights Agreement — City Bank Page 5 of 6 A T TEST: Q C." -5x- Rebecca arza, City Secretary APPROVED AS TO CONTE Scott Snider, Assistant City Manager Community Services APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw:city att/Chad/ Contracts-Agreements/Naming Rights Agreement April 10, 2012 Naming Rights Agreement - City Bank Page 6 of 6 M N O �i I N O N O z 0 0 .H 0 0 0 4) x N U Cd w Cd cl M -$ 2 I