FACILITY NAMING AND SPONSORSHIP AGREEMENT

Transcription

1 FACILITY NAMING AND SPONSORSHIP AGREEMENT This Facility Naming Agreement ( Agreement ) is entered into this. day of between SAS Institute Inc., a North Carolina corporation with offices located at SAS Campus Drive, Cary, North Carolina ( SAS ) and the Town of Cary with offices located at 316 N. Academy Street, Cary, North Carolina ( Town ). WHEREAS, the Town has entered into an agreement with Wake County, North Carolina to manage the soccer park located at 201 Soccer Park Drive, Cary, North Carolina (the Facility ); and WHEREAS, the Facility will be utilized by local, regional, state, national and international soccer teams, both amateur and professional, among other uses; and WHEREAS, SAS desires to sponsor 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, the Town and SAS 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 as of the date first above written and, unless sooner terminated in accordance with this Agreement, shall continue until June 30, Provided SAS is not in default hereunder, SAS shall have the option to extend the term of this Agreement for an additional three (3) years at a mutually agreed upon yearly investment. SAS can exercise its option by providing written notice to Town of SAS intent to renew by no later than September 1, SAS shall have the right to terminate this Agreement upon 30 days written notice to Town in the event of the occurrence of any of the following contingencies: If Town is not using its best efforts to utilize the Facility to its potential and SAS is not receiving the desired brand exposure; If Town is adjudicated as insolvent, declares bankruptcy or is otherwise unable to perform its management duties for the Facility; or Upon material breach of any provision of this Agreement by Town, if such breach is not cured within thirty (30) days after Town s receipt of written notice from SAS. 2.4 Town shall have the right to terminate this Agreement upon written notice to SAS in the event of the occurrence of any of the following contingencies: Page 1 of 9

2 2.4.1 If SAS is adjudicated as insolvent, declares bankruptcy or is otherwise unable to pay its debts when due; or Upon a material breach of any provision of this Agreement by SAS, if such breach is not cured within thirty (30) days after SAS receipt of written notice from Town. 2.5 The provisions of Sections 8, 11, 17, 18, 19, 20, and 2lshall survive expiration or termination of this Agreement. 3. SAS RIGHTS AND BENEFITS. 3.1 Naming Rights. Soccer Park SAS shall have the exclusive right to retain the Facility name SAS SAS shall have the exclusive right to retain the name of the stadium as SAS Stadium (the Stadium ) SAS shall have the exclusive right to retain the name of one (1) field at the Facility (the Field ) as Koka Booth Field All references to the Facility, the Stadium and the Field, regardless of media, made by Town will include the names selected by SAS. Such references shall include, but not be limited to, all marketing materials, press releases, other print materials, and radio, web and television broadcasts. 3.2 Town agrees that no sponsorships or other forms of advertisements relating to the Facility, the Stadium and/or the Field may be offered to third parties in the software and technology industry without prior written approval from SAS, which approval shall not be unreasonably withheld. In addition, Town agrees that it will not offer sponsorships or seli advertising to persons or entities whose business reputation or ongoing business activities might reflect adversely upon the image and reputation of SAS. 3.3 Signage Unless otherwise stated herein, Town will maintain the existing signage at no additional costs to SAS. Appropriate lighting will be provided and maintained, at a minimum, for the main entrance sign and the main directory sign Town shall use best efforts to maintain a minimum of two (2) directional signs for the Facility on major highways. Town shali be responsible for obtaining all approvals from the North Carolina Department of Transportation and other governmental agencies regarding placement of such signs Consistent with Town of Cary ordinances, SAS shall have the right, at SAS expense, to place banner signs (the Banners ) on light poles at the Facility. In the event SAS elects to place the Banners, SAS shall be responsible for mounting, maintaining, and removing the Banners when necessary. Town shall be responsible for providing SAS adequate notice, using best efforts to provide one (1) month notice, but not less than two (2) weeks notice, of the need to remove the banners prior to an event. No use of the banner brackets may be Page 2 of 9

3 made by third parties without SAS prior consent, such consent not to be unreasonably withheld. Notwithstanding the foregoing, SAS hereby authorizes use of the brackets by the National Collegiate Athletic Association ( NCAA ), Atlantic Coast Conference ( ACC ), and State Games of North Carolina so long as no other business entities are identified on the banners being placed thereon SAS shall have the right, at SAS expense, to have at least one (1) flag of SAS design displayed on the concourse flagpoles SAS acknowledges that Town may, from time to time, be required to remove temporary signage, such as the Banners and field boards, by certain event promoters; however, Town agrees to use all reasonable efforts to maintain SAS right to display the temporary signage at each event Town 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 SAS In the event the Town desires to sell naming rights to any portion(s) of the Facility not covered under this Agreement, e.g. other fields and the cross country course, SAS shall have the right of first refusal to such naming rights at the most favorable rates and terms being offered by the Town to any prospective purchaser of such rights. Town shall provide written notice to SAS of the naming right, rate and term being offered. SAS shall have a period of two weeks within which to exercise its right of first refusal to such right, rate and term. In the event SAS declines such offer, or in the event SAS fails to respond within such two week period of time, then Town shall be free to enter into a naming right agreement with a third party. In each event that SAS exercises such right, SAS shall have final approval of the design of any signs relating thereto, provided such signs are in compliance with Town ordinances and standards for Facility. 3.4 Luxury Box. at all times. Luxury Box SAS shall have exclusive use of one (1) Luxury Box designated by SAS, SAS shall be responsible for maintenance and upkeep of all furnishings in such Any use of the Luxury Box by the Town is subject to SAS prior approval, which approval shall not be unreasonably withheld. The Town shall provide SAS with not less than one (1) week notice of any request to use said Luxury Box. 3.5 Admission, Parking Passes Town shall provide SAS with the following to ticketed events at the stadium for which the Town controls the ticketing process: (i) Adequate admission passes for attendees utilizing the SAS Luxury Box; (ii) Fifty (50) Category I (premier seating) admission passes; (iii) Thirty-five (35) General Parking passes; and Page 3 of 9

4 (iv) Fifteen (15) VIP Parking passes If SAS does not intend to utilize its Category I admission passes and related parking passes, it will, upon request from Town, give Town the option of using such passes for its own purposes as it sees fit, including the ability to sell them to the general public In any event for which Town does not control sale and/or distribution of the admission passes and parking passes, Town shall use reasonable efforts to obtain fifty (50) Category I admission passes and related parking passes, but reasonable efforts shall not include having to purchase said passes. In such event, Town shall, however, at SAS request, use best efforts to reserve the fifty (50) Category I admission passes and related parking passes for SAS employees to purchase up to 30 days prior to the respective event. Notwithstanding the foregoing, for all stadium ticketed events, Town must provide the admission passes and VIP Parking passes to a Luxury Box designated by SAS at no cost to SAS. 3.6 Use of Facility. SAS shall have the right, subject to the provisions of this Section, to utilize the Facility and/or Stadium for company events. SAS shall provide Town of not less than thirty (30) days notice of any such request to utilize the Facility and/or Stadium. Such usage shall be on dates mutually agreed upon by the parties based on Facility availability. SAS shall reimburse the Town for any related costs incurred by the Town associated with company events (i.e., set up, security, supervision, clean up, etc.). 3.7 Additional Sponsorship Opportunities. In the event any professional sports team enters into an agreement with Town for use of the Facility as its primary home venue, Town shall use best efforts to provide an opportunity for SAS to enter into a sponsorship with such team(s). 3.8 Advisory Board. In the event an Advisory Board is created with regard to use of the Facility by the Town of Cary, SAS shall have the option, in its sole discretion, to place at least one (1) member on such Advisory Board. 4. PAYMENTS. SAS shall, on or before thirty (30) days following the date of this agreement, pay to Town the amount of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00). In addition, SAS shall pay to Town the amount of One Hundred Fifty Thousand and No/I 00 Dollars ($150,000.00) on or before July 31, 2005 and on or before July 31, INTELLECTUAL PROPERTY. 5.1 SAS grants Town the right to use its trademarks, trade names and services marks, including SAS logo ( SAS Marks ) solely in connection with the identification of the Facility, Stadium and Field. Town acknowledges that its use of SAS Marks shall inure to the sole benefit of SAS and shall not create any right, title or interest in same in favor of Town. Town agrees to comply with SAS guidelines as may be provided to Town from time to time concerning use of SAS Marks. SAS reserves the right to prohibit the use of SAS Marks, or to modify any materials depicting SAS Marks, if in its sole judgment such use may be illegal, misleading or inappropriate. 5.2 Town grants SAS the right to use the Facility, Stadium and Field names and images for marketing purposes, in any media, subject to prior and timely review by the Town. Such review is intended to help ensure accuracy and coordination of marketing and public relations efforts between SAS and the Town related to the Facility. Page 4 of 9

5 5.3 Town grants SAS the right to use the Town of Cary seal (logo), which is a registered mark with the North Carolina Secretary of State s office, solely in connection with the identification of the Facility, Stadium and Field. SAS acknowledges that its use of the Town of Cary s seal (logo) shall inure to the sole benefit of the Town of Cary and shall not create any right, title or interest in same in favor of SAS. SAS agrees to comply with the Town of Cary s guidelines as may be provided to SAS from time to time concerning use of the Town of Cary seal (logo). The Town of Cary reserves the right to prohibit the use of its seal (logo), or to modify any materials depicting its seal, 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 this Agreement ( Approval Coordinator ), as named below: For the Towri:~ William Davis P.O. Box 8005 Cary, NC c~jq L)~ ~-/~L,/ (Telephone) (Fax) ct ~-~~u-n ~ ( ) For SAS: ~. Toni Rich Marketing Operations Specialist 100 SAS Campus Drive Cary, NC Torii.Rich@sas.com Either party may change their Approval Coordinators upon written notice to the other party in accordance with this Agreement. 6. MAINTENANCE OF FACILITY, NON-DISCRIMINATION. 6.1 Town shall maintain the Facility in good and safe condition. 6.2 Town shall ensure that in no event shall usage of the Facility discriminate on the basis of race, sex, religion or national origin. 7. INSURANCE REQUIREMENTS, RELEASES REQUIRED. 7.1 Town 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 the Town of Cary at all other municipal locations. Such coverage should include, at a minimum the following: Page 5 of 9

6 7.1.1 Statutory workers compensation in accordance with the laws of tilhe state where such compensation would be payable. Employers liability (Coverage B) with limhits of not less than $100,000 per accident Comprehensive General Liability Insurance, including products3 liability, completed operations liability, blanket contractual liability, broad form property damaage and bodily injury liability insurance, with limits of at least $2,000,000 for each occurreance and combined single limit Umbrella Liability Insurance for a limit of not less than $5,000j000 per occurrence and policy aggregate limit Commercial Property Insurance on the Facility with a limit of no leess than $3,500, The Town shall deliver to SAS Certificates of Insurance evidencing the e~xistence of the insurance required above no later than thirty (30) days following the final executioon of this Agreement. Such Certificates shall provide for the giving to SAS of thirty (30) days prioor written notice of cancellation. 7.3 The Town agrees that it will use best efforts to require all credentials of aany kind used for admission to events at the Facility and/or Stadium to include the follo~iwingor substantially similar language: The holder of this ticket assumes all risk and danger incidental to the game or5f soccer and releases the SAS Soccer Park, its sponsors, and host organizations and al/il agents thereof from any and all liabilities resulting from your attendance at this evennt. You agree to abide by all rules and regulations established for the SAS Soccer Parkk, and a violation of these rules and regulations can be cause for forfeiture of your tict~ketand removal from the premises. 7.4 The Town further agrees to use best efforts to obtain signed releases f from all organizations engaged in activities at the Facility, which release SAS, its parent, subsidiaa,y and affiliated companies and all agents thereof from any and all liabilities resulting from theirir use of the Facility and participation in the activity held at the Facility. 7.5 With regard to any event for which the Town is unable to include the lannguage described in 7.3 above or unable to obtain the releases described in 7.4 above, thee Town agrees to use efforts to provide SAS with notice of same prior to such event. 8. INDEMNITY. 8.1 To the extent permitted by law and up to the amount of its insurance co~werage, the Town agrees to indemnify, defend and hold harmless SAS, its parent, subsidiaary and affiliated companies and their respective directors, officers, employees, agents, successoors and assigns, from and against any and all claims, damages, liabilities, losses, gove~rnment proceedings and costs and expenses, including reasonable attorneys fees and costs cof suit, arising out of or in connection with (i) the negligent or reckless acts or omissions of the Töown, its employees, agents or representatives, or (ii) the Town s breach of this Agreement. Page 6 of 9

7 8.2 SAS agrees to indemnify, defend and hold harmless the Town, 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) the use of the SAS Marks or (ii) SAS 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 Agreement. The obligations of this Section 8 shall survive the expiration or termination of this 9. AGREEMENT SUBJECT TO GROUND LEASE AND SUBLEASE / WARRANTIES. Town occupies premises as a proposed assignee of Sub-Lease Agreement between CASL Soccer Properties, LLC and Wake County as set forth in Interlocal Agreement between and among Wake County, and Town of Cary. This Agreement is subject to (1) execution of such Interlocal Agreement between Town and Wake County, (2) Ground Lease between State of North Carolina and Wake County, Sublease,. and Interlocal Agreement and (3) approval of this Agreement by Wake County.. The parties hereto agree that, in the event the foregoing requirements do not take place prior to July 31, 2005, SAS shall be responsible only for the initial payment of $150, due upon execution of this Agreement and that, unless otherwise expressly agreed in writing by the parties, this Agreement shall terminate and SAS shall have no further obligations hereunder except as set forth in Section Subject to the foregoing, the parties represent and warrant to each other that they are under no obligation or restriction which would in any way prevent or interfere with their ability to perform their obligations under this Agreement, and that no other authorizations are necessary to permit the other the full use and enjoyment of its rights granted hereunder. 10. 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. 11. NOTICES, STATEMENTS AND PAYMENTS. AU 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: SAS Jim Davis Sr. Vice President and Chief Marketing Officer SAS Institute Inc. SAS Campus Drive Cary, NC Fax: (919) Page 7 of 9

8 With copy to: John G. Boswell, Esq. Vice President and General Counsel SAS Institute Inc. SAS Campus Drive Cary, NC Fax: (919) Town William Coleman Jr. Town Manager P.O. Box 8005 Gary, NC With copy to: Benjamin Shivar Assistant Town Manager P.O. Box 8005 Cary, NC All notices shall be effective upon receipt. 12. WAIVER. The failure of SAS or Town at any time to demand strict performance by the other of any of the 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. 13. ASSIGNMENT. Neither Town nor SAS shall have any right to assign or transfer any of its rights or obligations hereunder without the express prior written consent of the other party. Any unauthorized attempt at assignment shall be void and unenforceable. 14. 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. 15. 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. 16. 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. 17. 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. Page 8 of 9

9 18. FORCE MAJEURE. Neither party shall be liable for any delays, damages or failure to act caused by force majeure or 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 (a Force Majeure Event ), 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. 19. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between SAS and Town 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, Stadium and/or Field, 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 have agreed that faxed signature copies shall be legally binding. 20. 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. 21. NO THIRD PARTY BENFICIARIES. Unless otherwise specifically provided herein, no person or entity who 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. SAS Town SAS Ii Town of Cary By:L3 ~ ~ mature Signaturé S~V.Rand Chief Marketing Officer ~ SAS Institute Inc. / Name and Title Reviewed and Approved: County of Wake Joe Bryan, Chair Facility Naming 22Apr05.doc/PLB Page 9 of 9