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HomeMy Public PortalAboutFinal AgreementTour de Georgia 04 10 08TOUR DE GEORGIA CITY PARTICIPATION AGREEMENT City of Tybee Island This Tour de Georgia City Participation Agreement (hereinafter referred to as the “Agreement”) is entered into as of this __ day of ___________, 2008 (the “Effective Date”), by and between The Tour de Georgia Foundation, Inc., a Georgia non-profit corporation (“TGF”), and City of Tybee Island, a municipality organized under the laws of the State of Georgia (“City”) (TGF and City sometimes hereinafter collectively referred to as the “Parties” and individually as a “Party”.) RECITALS WHEREAS, TGF owns the Tour de Georgia, a multi-day, multi-stage cycling race across the State of Georgia (hereinafter referred to as the “Tour de Georgia” or the “Tour”), and also owns certain registered marks and logos relating to the Tour de Georgia; and WHEREAS, the City wishes to acquire the rights and benefits of hosting a Overall Start of the Tour de Georgia and to undertake all of the obligations related to such hosting; and WHEREAS, TGF wishes to grant the rights and benefits of hosting a portion of the Tour de Georgia to the City under the terms and conditions provided herein. NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties hereby agree as follows: 1. Designation of Host and Location of Host Stage Venue. TGF licenses to City (the “Host”) the right to host a STAGE Overall START (the “Host Stage”) for the Tour. The 2008 Tour is scheduled to be held from April 21 through April 27, 2008, and the Host Stage is scheduled to be held on April 21st, 2008 (the “Host Stage Date”). Host accepts the license granted and agrees to exercise such license to host the Host Stage and to undertake and perform the Host Obligations as set forth in this Agreement. The Host Stage shall be held at a location in City which shall be subject to the prior review and approval of TGF (the “Host Stage Venue”). Host acknowledges and agrees that, except as specifically set forth herein, TGF is entitled to collect and retain all revenues attributable to the Tour, the Host Stage, and the Host Stage Venue. Without limiting the foregoing, to the extent that TGF has paid or otherwise incurred costs relating to the Host Stage (including but not limited to costs related to lodging, meals, permits, traffic control, police and other safety personnel) and Host has raised money in connection with the Host Stage ("Host Stage Funds"), Host shall reimburse TGF for such costs to the extent of such Host Stage Funds. 2. Host Obligations. In consideration of the rights granted by TGF to host the Host Stage and receive the Host Benefits (as defined below), Host agrees to undertake and perform the following obligations and to perform according to the following specifications, all at Host’s sole cost and expense unless otherwise provided: 2.1. Publicity, Promotion and Goodwill. Host shall use its best efforts to publicize and promote the Tour and the Host Stage through all local media. Host agrees to conduct the activities contemplated by this Agreement in such a way as to promote the goodwill associated with the Tour, the Host Stage and the Host Stage Venue, TGF, the State of Georgia, and the sponsors of the Tour, and will not at any time disparage the good name, reputation, or image of the Tour, the Host Stage and the Host Stage Venue, TGF, the State of Georgia, or the sponsors of the Tour. It will exercise its best efforts to ensure that City officials, employees and other representatives and Host officers, directors, employees, volunteers, agents, representatives, and contracted parties promote and protect the goodwill of the Tour and not engage in conduct which is detrimental to the Tour, its Sponsors, TGF, or Children’s Healthcare of Atlanta. 2.2. Guidelines and Amendments. All services and other activities required to be performed or provided by Host described in this Agreement will be performed or provided in compliance with all reasonable and customary guidelines, standards, policies and directives (collectively, “Guidelines”) developed and issued by TGF from time to time. Host recognizes that, while the contents of the Host Venue Requirements manual issued by TGF represents the current position of TGF on such matters, such material may evolve as a result of technological and other changes, some of which may be beyond the control of the Parties. TGF reserves the right to amend the Guidelines and the Planning Manual to address such changes and Host agrees to observe and comply with such amendments so that the Tour and the Host Stage will be presented in the best possible manner. Should amendments to the Guidelines or the Planning Manual result in adverse effects on the financial or other obligations of Host, it will so inform TGF in writing and TGF will then negotiate with Host in order to address such adverse effects in a mutually satisfactory manner. 2.3. Credentials. TGF shall be responsible for producing credentials of all types for the Tour, including the Host Stage and Host Stage Venue and further including credentials for members of the media and operational personnel, which credentials shall be produced at the sole expense of TGF. TGF shall be responsible for all decisions regarding to which media, VIP and operational credentials should be issued and shall establish all rules and regulations regarding media access to the Tour, the Host Stage and the Host Stage Venue. 2.4. Host Obligation Specifications. Host shall provide the following for the Host Stage in City all in accordance with the operational and technical specifications set forth in Exhibit “A” (collectively, the “Host Venue Requirements”). Host Stage will use its best efforts to assist TDG with local costs associated with following specifications: a) Tour Course Layout and Host Stage Venue. Host will assist TGF in obtaining a design and layout of that portion of the City and county (if applicable) through which the Tour course will run and provide access to such course without imposition of any site fees. b) Ambush-Free Zone. Host agrees to work with TGF to create a zone which consists of the Host Stage Venue and a radius around the Host Stage Venue (the “Ambush-Free Zone”) that shall be free from temporary merchandise vending, temporary advertising, and temporary signs and inflatable items. The parameters of the Ambush-Free Zone should be within a 100-yard radius of the start/finish area. Host represents to TGF that it has obtained commitments of appropriate governmental agencies to assist with enforcement of its obligations in connection with the Ambush-Free Zone, including the City police and county sheriff’s departments. c) Ambush Marketing. Host agrees to use its best efforts to: (a) minimize the “ambush marketing” of Tour sponsors and local sponsors in and around City and the Host Stage Venue during the Tour; and (b) prevent Commercial Exploitation Rights (as defined below) identified with City and otherwise from being granted by any governmental agency to any entity that is not a Tour sponsor during the period commencing two (2) weeks prior to, through Tuesday following the conclusion of, the Tour. d) Merchandise Counterfeiting and Trademark Enforcement. Host shall obtain the commitment of appropriate City, County, and/or other governmental entities to assist TGF, and shall itself assist TGF, in preventing unauthorized use of the Tour Marks (as defined below), admission tickets for the Host Stage, and other intellectual property, and in preventing the sale or distribution of unlicensed merchandise bearing the Tour Marks or any other reference to the Tour. Host’s obligations to assist shall be required during the Term and shall survive any termination or expiration of this Agreement. e) Media and Marketing Plan Cooperation. Host will cooperate with the media and marketing plan of TGF, including accommodating television broadcasters, sponsors, and other persons and entities to whom and to which TGF has granted and will grant rights. f) Accommodations. That number and type of hotel rooms for the night(s) designated on Exhibit “A” within those further specifications to be provided by TGF. g) Meals. That number and type of meals for those day(s) designated on Exhibit “A.” h) Auxiliary Space and Equipment for Tour Requirements. Those types of areas, premises and equipment for the time period designated on Exhibit “A.” i) EMS/EMT Services. Emergency medical services and emergency medical technicians to serve the general public at and on the day of the Host Stage in City.; j) Portable and/or Public Restrooms. Portable (e.g., port-o-johns) or public restroom facilities on the day of the Host Stage in a number and location to be determined by Tour representatives. k) Volunteers. Recruitment of that number of volunteers designated on Exhibit “A” to this letter to assist local police and Tour personnel with various functions to be designated by Tour representatives. Host will be responsible for the selection and training of its volunteers. All volunteers will be expected to perform their assigned duties and services in a professional and highly competent manner, to the best and full limit of their abilities at all times and in accordance with the highest quality standards, applicable law and the rules and regulations established by Host and TGF. All volunteers will be required to sign the standard Volunteer Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement form for the Tour. l) Other Services. Host will provide those other services and undertake those other obligations set forth in Exhibit “A” attached hereto and incorporated herein by this reference, as well as any additional services that may be reasonably requested by TGF. 2.5. Tour Sponsor Recognition. Host agrees that Tour sponsors shall have the right to have recognition and visibility at the Host Stage Venue and that TGF shall determine the placement of signage, recognition, and visibility. 2.6. Sale of Merchandise. Host agrees that no merchandise other than that designated by TGF will be sold on-site at the Host Stage Venue during the Tour without the prior written consent of TGF. 2.7. Reference to Name of Tour. Host shall refer to the Tour by the exact name supplied by TGF from time to time, including any title or presenting sponsor identification (should title or presenting sponsorship rights be granted), and shall include, in all agreements that Host may enter into with third parties, a requirement that all third parties utilize the exact name for the Tour supplied by TGF from time to time. 2.8. Proposed Host Contracts. Host shall submit to TGF for prior review and approval all contracts that Host proposes to enter into with respect to: (a) the obligations undertaken by Host in connection with the Tour; and (b) Host’s organization of any ancillary events. 2.9. Anti-Gouging Provisions. Host shall exercise best efforts to make sure that hospitality services (including lodging and restaurants) are provided at reasonable prices for visitors and tenants. 2.11. Disclosure. Host shall not make any public or private disclosure of the terms of this Agreement except as required by applicable law. 3. Host Benefits. In consideration of the agreement by Host to undertake and perform the Host Obligations, TGF agrees to provide the recognition and benefits to and for the benefit of Host as set forth in this Section 3 (collectively referred to as the “Host Benefits”). 3.1 Recognition. TGF shall include recognition for Host in the official Tour Guide, on the Tour web site, and in a press conference announcing that Host has agreed to serve as the host for the Host Stage of the Tour. The Parties agree to make a joint public announcement and press release upon the execution of this Agreement, in a form and substance to be mutually agreed upon by the Parties. 3.2 Hospitality. TGF shall provide to Host credentials for and access to a VIP hospitality area that TGF intends to create. 3.3 Insurance. TGF shall procure and provide insurance as provided in Section 4.1, below. 3.4 Local Stage Sponsorships. TGF grants to Host a license to solicit and secure local stage sponsors to support the activities of Host in connection with the Host Stage, in accordance with the following terms and conditions: a) Designation. Each local sponsor may be given the designation “Local Stage Sponsor,” but shall not be given any other sponsorship designation. A Local Stage Sponsor may neither be referred to nor describe its involvement with the Host Stage by any other designation, including but not limited to a sponsor of the Tour. b) Local Stage Sponsorship Benefits. Host shall be able to provide Local Stage Sponsors with local sponsorship benefits subject to the following guidelines (the “Local Stage Sponsorship Formulation”). 1. Reserved Tour Sponsor Categories. Host acknowledges that TGF has retained the exclusive right to sell sponsorship rights in specific sponsorship categories to Tour Sponsors (“the Tour Sponsor Categories”). A listing of the Tour Sponsor Categories is set forth on Exhibit “B”. Host acknowledges that it may not sell local stage sponsorship rights to become a Local Stage Sponsor to any company which manufactures, markets, represents or distributes products or services in any of the Tour Sponsor Categories, such rights being reserved to TGF for Tour Sponsors. 2. TGF Approval. TGF shall have the right of prior review and prior written approval over the identity of all proposed Local Stage Sponsors as well as the recognition and benefits to be provided by Host to such Local Stage Sponsors. Host acknowledges that such review and approval is necessary to avoid conflicts between Tour Sponsors and Local Stage Sponsors. 3. Sponsorship Priority. The presenting sponsor of the Tour as well as all other sponsors of the Tour designated by TGF shall have priority over and rights superior to that of any Local Stage Sponsor. 4. Submission of Materials to TGF. Host must submit all prospective sponsor lists and packages, art work, copy, and designs to TGF for approval in advance. 5. Use of Tour Marks. Host has no authority to grant a sublicense to the Tour Marks unless pre-approved by TGF officials. 6. Recognition of Tour Sponsors. Host shall facilitate the recognition of Tour Sponsors as designated by TGF and Benefits List. c) No Other Recognition. Local Stage Sponsors shall not receive any endorsements from individual athletes participating in the Tour without the involved athlete’s prior permission, nor will local sponsors be guaranteed broadcast exposure of any type. 5. Local Revenues. 5.1 Parking. Host may offer parking for spectators for the Host Stage. Host may retain all revenues from such parking and shall be responsible for all parking expenses. 5.2 Food and Beverage Concessions. Subject to certain VIP hospitality to be offered exclusively by TGF, Host may offer food and beverage concessions at the Host Stage Venue for purchase. Host may retain all revenues derived from food and beverage concessions and shall be responsible for all expenses attendant to such concessions. Host shall use its best efforts to use and sell official sponsor products. Should Host decline to offer food and beverage concessions, TGF may provide such concessions subject to Host approval and local permits and requirements. 5.3 Ancillary Events. Host may create, organize, and present events ancillary to the Host Stage, provided that Host must obtain TGF’s prior written approval of any such ancillary events, and Host may retain all revenues generated thereby. Host shall be responsible for all expenses of creating, organizing, and presenting such ancillary events. 6. Reservation of Rights. Any and all rights of TGF, including those in and to the Tour and the Tour Marks, not expressly granted to Host under this Agreement are reserved to TGF and may be exercised, marketed, exploited or disposed of by TGF concurrently with the Term in such form and manner as TGF wishes. Host acknowledges and agrees that this Agreement does not convey or grant to it any rights of ownership in or management of the Tour, TGF, or the Tour Marks. 7. Term and Termination; Force Majeure. The term shall begin as of the Effective Date and, unless earlier terminated in accordance with the terms set forth below, and except as to obligations herein which specifically extend past the term of the agreement, shall continue through and including April 30, 2008 (the “Term”). 7.1. Termination. Either Party may terminate this Agreement, at its option, upon written notice to the other Party, upon the occurrence of one or more of the following events (the “Termination Events”): a) Material Breach. Material breach of any covenant, agreement, representation, warranty, term or condition of this Agreement, if such breach has not been waived in writing and if such breach is not cured or remedied by the breaching Party to the other Party’s reasonable satisfaction within thirty (30) days after delivery of written notice specifying the nature of the breach, or if the Parties agree that the breach is not capable of being cured or remedied within said thirty (30) days, then within the time period mutually agreed to by the Parties; or b) Cancellation or Postponement. TGF may terminate due to the cancellation or postponement of the Tour or any Host Stage. 7.2. Force Majeure. In the event that the Tour does not take place or is rescheduled, in whole or in part, due to any Act of God or other event not reasonably foreseeable by the Parties or beyond the control of the Parties which is generally considered an event of force majeure, including without limitation, weather, fire, flood, act of public enemy or terrorism, strike or labor dispute, governmental action or directive or local, regional or national day of mourning (“Force Majeure”), whether such event of Force Majeure has occurred in a community through which the Tour course shall run or not, then TGF may discontinue provision of the Host Benefits to and for the benefit of Host and Host need not continue to perform those Host Obligations which remain unperformed as of the date of cancellation or postponement. The Parties shall determine whether the Tour is to be cancelled in whole or in part or postponed due to a Force Majeure event. Should the Tour be cancelled in whole or in part due to an event of Force Majeure, TGF shall have no further obligation, financial or otherwise, to Host and Host shall have no further obligation to TGF in connection with the Tour. In the event that the Tour is postponed in whole or in part due to an event of Force Majeure and TGF reschedules the Tour, TGF and Host shall discuss in good faith the terms under which such rescheduling should occur. 7.3. Cancellation or Postponement of Tour for Reason Other than Force Majeure. TGF shall have the sole and unfettered right to cancel or postpone the Tour or any Host Stage. In the event of such cancellation or postponement for a reason other than Force Majeure, TGF shall repay to Host all amounts actually expended by Host in performing its obligations hereunder and for which documentation is provided. 7.4. Effect of Termination. Should either Party terminate this Agreement as a result of a Termination Event set forth in subsection a above, then upon termination of this Agreement, Host’s Host Benefits shall terminate and Host shall cease using the Tour Marks. In addition, should such termination result from termination notice given by Host to TGF from occurrence of a Termination Event, TGF shall repay to Host all amounts actually expended by Host in performing its obligations hereunder and for which documentation is provided to TGF; provided, however that in no event shall TGF be liable for amounts in excess of $10,000.00 in the aggregate. Should termination result from termination notice given by TGF to Host from occurrence of a Termination Event, Host shall repay to TGF all amounts expended by TGF in licensing to Host the right to host the Host Stage, to provide the Host Benefits, and to relocate the site for the Host Stage in each case, for which documentation is provided to Host; provided, however, that in no event shall Host be liable for amounts in excess of $10,000.00. 7.5. Survival of Certain Terms of the Agreement. The covenants, acknowledgements, representations, agreements, and obligations which specifically provide that they survive expiration of this Agreement shall survive the expiration and/or termination of this Agreement, in each case as permissible under applicable law. 8. Licenses to Use Marks; Protection of Intellectual Property. 8.1 Tour Marks. a) Acknowledgements Regarding Tour Marks. TGF retains the rights to sell title and presenting sponsorships in and to the Tour and, in such event, to incorporate the name and/or marks of such title and/or presenting sponsor into the Tour Marks or to develop new marks and logos for the Tour, acknowledging such title and/or presenting sponsor’s relationship with and support for the Tour. Host acknowledges the foregoing and that the term “Tour Marks” as used herein may also refer to the Tour Marks as such may be expanded to include the name and/or marks of a title and/or presenting sponsor of the Tour. Upon being advised by TGF and TGF of a change to the Tour Marks in the event of a sale of title or presenting sponsorships, Host agrees to utilize the updated Tour Marks with the name and/or marks of a title and/or presenting sponsor, all as designated by TGF. b) License to Use Tour Marks. TGF hereby grants to Host a limited non-exclusive license to use the name, logos, trademarks, service marks, designs, product and service identification, artwork and other symbols and distinctive indicia associated with the Tour and identified in Exhibit “D” (the “Tour Marks”) during the Term, in accordance with the terms of this Agreement and the Tour Marks Guidelines set forth below, solely at or in connection with the site of the Host Stage, including the Host Stage Venue. The foregoing license is subject to the right of TGF to review and approve in advance all uses of the Tour Marks. Host shall have no right to assign, license, or “pass-through” rights to use the Tour Marks to any other person or entity. In exercising this license to use the Tour Marks and in each and every reference to the Tour, Host shall utilize the Tour Marks and the exact name of the Tour designated by TGF, which shall include the name of any title and/or presenting sponsor. The Parties acknowledge and agree that, upon the expiration or termination of the Term of the Agreement, Host shall cease to use the Tour Marks. c) License Does Not Extend to Merchandise. Host shall not manufacture or sell, or license the manufacture or sale of, any promotional or other merchandise which bears the Tour Marks. d) Acknowledgements Regarding Goodwill. Host acknowledges the great value of goodwill associated with the Tour Marks. Host acknowledges that the goodwill attached to the Tour Marks belongs exclusively to TGF. Host agrees that any and all goodwill and other rights that may be acquired by the use of the Tour Marks by Host shall inure to the benefit of TGF. e) No Disparagement by Host. Host will not, at any time, disparage, dilute or adversely affect the validity of the Tour Marks or take any action, or otherwise suffer to be done any act or thing which may at any time, in any way materially adversely affect any rights of TGF in or to the Tour Marks, or any registrations thereof or which, directly or indirectly, may materially reduce the value of the Tour Marks or detract from their reputation. f) Tour Marks Guidelines. Any use of the Tour Marks during the Term shall be further subject to the conditions and limitations (collectively, the “Tour Marks Guidelines”) listed on the internal FTP site and outlined in Exhibit D, attached and incorporated herein by reference. 8.2 Host Marks. Host hereby grants to TGF a limited non-exclusive license to use the name, logos, trademarks, service marks, designs, product and service identification, artwork and other symbols and distinctive indicia of Host, if any, during the Term in accordance with the terms of this Agreement, specifically to provide Host with the Host Benefits. The foregoing license is subject to the right of Host to review and approve in advance all such uses of the Host Marks. TGF shall have no right to assign, license or “pass-through” rights to use the Host Marks to any party, except as necessary to fulfill its obligations set forth in this Agreement. The Parties acknowledge and agree that, upon the expiration or termination of the Term of the Agreement, TGF shall discontinue any use of the Host Marks and TGF may continue to use the Tour Marks. 8.3 Ownership of Intellectual Property. a) Each Party shall own all right, title and interest in and to all intellectual property created by or on behalf of such Party in connection with this Agreement, including without limitation, all logos, names, ideas, concepts, creative materials, promotional materials, advertising, graphics, including all copyrights and proprietary rights therein, and any inventions and discoveries first conceived or developed, whether or not protected by patent, trade secret or copyright, subject to the ownership rights of the other Party to such other Party’s trademarks to the extent that such are incorporated into such intellectual property (the “Intellectual Property”). That Intellectual Property created by or on behalf of Host is referred to as the “Host Intellectual Property” and that Intellectual Property created on behalf of TGF is referred to as the “TGF Intellectual Property.” b) Notwithstanding the foregoing, the Parties acknowledge and agree that the Tour Marks and the distinctive colors, concepts, indicia, and look displayed by TGF throughout the Tour and by TGF in its regular business operations and materials shall constitute TGF Intellectual Property and therefore be owned by TGF. The Parties expressly agree that all copyrightable aspects of the TGF Intellectual Property are to be considered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), of which TGF is the “author” within the meaning of the Act. All such copyrightable works, as well as all copies of such works in whatever medium fixed or embodied, shall be owned exclusively by TGF as its creation and Host expressly disclaims any interest in any of them. Host expressly acknowledges that it is not a joint author and that the TGF Intellectual Property and all other work created by TGF hereunder are not joint works under the Act. c) In the event (and to the extent) that any TGF Intellectual Property or any part or element thereof is found as a matter of law not to be “work made for hire” within the meaning of the Act, Host hereby conveys and assigns to TGF the sole and exclusive right, title and interest in the ownership to all such TGF Intellectual Property, and all copies of it, without further consideration, and agrees to assist TGF to register, and from time to time to enforce, all patents, copyrights, and other rights and protections relating to the TGF Intellectual Property in any and all countries. To that end, Host agrees to execute and deliver all documents requested by TGF to evidence any assignment as well as otherwise in connection therewith. d) Host understands that the term “moral rights” means any rights of paternity and integrity, including any right to claim authorship of a copyrightable work, to object to a modification of such copyrightable work and any similar right existing under the judicial or statutory law of any country or under any treaty, regardless of whether or not such right is referred to as a “moral right”, including, without limitation, the rights of attribution and integrity in works of visual art pursuant to 17 U.S.C. § 106A. Host irrevocably waives and agrees never to assert any moral rights Host may have in the TGF Intellectual Property, even after any termination or expiration of this Agreement. e) The Parties agree to affix appropriate copyright and trademark notices as reasonably designated by the other, together with their own notices as appropriate, on the TGF Intellectual Property to identify TGF as the owner of the TGF Intellectual Property and Host as the owner of the Host Marks. 8.4 Protection of Intellectual Property. a) Host acknowledges that it has no right, title, or interest in the Tour Marks and that nothing in this Agreement shall be construed as an assignment to Host of any right, title or interest in the Tour Marks, except the license to use of the Tour Marks as provided in this Agreement. b) Host agrees that TGF shall have the sole right to determine whether any action should be taken to terminate unauthorized use of the Tour Marks or to settle any proceeding brought by TGF to terminate such unauthorized use. All proceeds from any enforcement action shall belong exclusively to TGF. c) TGF and Host agree to assist each other in the pursuit of any proceeding or claim with respect to the use of any Tour Marks by Host in accordance with the terms of this Agreement. 10. Representations and Warranties. 10.1. By TGF. TGF represents and warrants that: a) It has the full right, power and legal authority to enter into and fully perform this Agreement in accordance with its terms without violating the rights of any other person, that there are no other agreements or commitments, oral or written, that will interfere with its full performance hereunder and that it will fully comply with all federal, state and local laws, rules and regulations applicable to the day-to-day conduct of its business and to its obligations and performances hereunder; b) The Tour Marks do not infringe the trademarks or other proprietary rights of any other person or entity; c) Any materials created under the control, direction or supervision of TGF shall be original, shall be owned by TGF, and shall not infringe any third party copyright or trademark; and d) It will comply with all applicable laws, regulations and ordinances pertaining to the promotion and conduct of the Tour. 10.2. By Host. Host represents and warrants that: a) It has the full right, power and legal authority to enter into and fully perform this Agreement in accordance with its terms without violating the rights of any other person, that there are no other agreements or commitments, oral or written, that will interfere with its full performance hereunder and that it will fully comply with all federal, state and local laws, rules and regulations applicable to the day-to-day conduct of its business and to its obligations and performances hereunder; b) Host owns or has the authority to grant to TGF a license to use the Host Marks; c) The Host Marks do not infringe the trademarks or other proprietary rights of any other person or entity; and d) Any materials created under the control, direction or supervision of Host shall be original, shall be owned by Host and shall not infringe any third party copyright or trademark 11. General. 11.1 Assignment. Parties may not assign any rights or obligations under this Agreement or this Agreement itself, in whole or in part, without the prior express written consent of the other Parties. Notwithstanding the foregoing, the Parties may retain the services of subcontractors to discharge certain obligations under this Agreement. 11.2 Notices. Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service (e.g., Federal Express), or by first class mail (certified or registered), or by facsimile confirmed by first class mail (registered or certified), to the applicable Party as addressed below or to such other address as a Party shall advise the other in writing. Notices will be deemed effective (i) three (3) working days after deposit, postage prepaid, if mailed, (ii) the next day if sent by overnight mail, or (iii) the same day if sent by facsimile and confirmed as set forth above. A copy of any notice shall be sent to the following: If to Host: City of Tybee Island Mayor Jason Buelterman P.O. Box 2749 Tybee Island, Georgia 912-786-4573 (telephone) 912-786-5737 (facsimile) With a Copy to City Attorney: Edward M. Hughes, Esq. City Attorney for Tybee Island P.O. Box 9150 Savannah, Georgia 31412 912-238-2750 (telephone) 912-238-2767 (facsimile) If to TGF The Tour de Georgia Foundation, Inc. 3343 Peachtree Road, NE Suite 1600 Atlanta, Georgia 30326 Attention: Elizabeth Dewberry, Executive Director ___-___-____ (telephone) ___-___-____ (facsimile) With a copy to: Brooks W. Binder, Esq. Morris, Manning & Martin, LLP 3343 Peachtree Road, NE Suite 1600 Atlanta, Georgia 30326 404-233-7000 (telephone) 404-365-9532 (facsimile) 11.3 Entire Agreement; Modifications. This Agreement constitutes the entire agreement of the Parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings between the Parties with respect to the subject matter hereof. This Agreement may not be modified, amended, supplemented, or otherwise changed, except by a written document executed by an authorized representative of each of the Parties hereto. 11.4 No Waiver of Rights and Breaches. No failure or delay of any Party in the exercise of any right given to such Party hereunder shall constitute a waiver thereof, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. The waiver by a Party of any default of any other Party hereunder shall not be deemed to be a waiver of any such subsequent default or other default of any Party. 11.5 Captions. The headings used in this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement. 11.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and authorized assigns. 11.7 Governing Law. This Agreement shall be deemed to be a contract made under the laws of the State of Georgia and for all purposes governed by and construed in accordance with the laws of the State of Georgia. 11.8 Relationship of Parties. TGF and Host are independent contractors with respect to each other. This Agreement shall neither be deemed nor construed to create a joint venture or partnership between TGF and Host, nor shall this Agreement be deemed or construed as making either Party the agent or representative of the other Party. Neither Party shall have the authority to bind the other Party in any respect. 11.9 Compliance with Law, Rules and Regulations. The Parties agree to comply with all federal, state, and local laws, ordinances, orders, rules, and regulations applicable to the performance of their respective obligations under this Agreement, both now existing and as such may hereinafter be adopted. 11.10 Time of Essence. The Parties agree that time is of the essence in performing obligations under this Agreement. 11.11 Exhibits. The documents attached hereto as exhibits are incorporated by reference herein and made a part of this Agreement as if fully set forth herein. 11.12 Severability. The determination that any provision of this Agreement is invalid or unenforceable shall not invalidate this Agreement, all of such provisions being inserted conditionally upon their being considered legally valid, and this Agreement shall be construed and performed in all respects as if such invalid or unenforceable provision(s) were omitted. 11.13 [RESERVED] 11.14 Further Assurances. The Parties agree to execute and deliver, or cause to be executed and delivered, such instruments and documents as either Party may reasonably request or require to carry out more effectively the purpose and intent of this Agreement. 11.15 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement. 11.16 No Third Party Beneficiaries. It is expressly understood that there are no third party beneficiaries to this Agreement. 11.17 Non-Discrimination Provision. TGF agrees to comply with all federal, state and local non-discrimination provisions that the City is under a duty to comply with under federal, state or local law during this event. TGF agrees not to discriminate against any participant on the basis of race, color, religion, sex, age, or national origin. TGF further agrees to comply with all federal, state and local laws regarding treatment and accommodations for individuals with disabilities. [signatures on next page] IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized representatives to execute this Agreement on their respective behalf, all as of the Effective Date. TGF: THE TOUR DE GEORGIA FOUNDATION, INC., A GEORGIA NON-PROFIT CORPORATION By: ______________________________________________ Name: ___________________________________________ Title: ____________________________________________ HOST: CITY OF TYBEE ISLAND, GEORGIA By: ______________________________________________ Wanda Doyle, Mayor Pro Tem Attest: ___________________________________________ Vivian Woods, Clerk Approved as to Form: _______________________________ Edward M. Hughes Attorney for the City of Tybee Island Exhibits to the Agreement: A: Host Venue Requirements B: Tour Sponsor Categories C: Host Marks D: Tour Marks Guidelines EXHIBIT A Services to be Provided and/or Obligations to be Undertaken by Host HOST VENUE REQUIREMENTS AND EXPECTATIONS As a partner of the Tour de Georgia, host venues are asked to provide local support in the following areas. The requirements are outlined per Stage Designation: RACE OPERATIONS and CITY SERVICES (ALL STAGES) POLICE SERVICES - Local (City and/or County) police services and related costs are the responsibility of the host venue. In coordination with Georgia State Patrol (GSP), as well as the Tour’s motor and road marshals and in conjunction with the LOC volunteer program, local police provide for a safe road closure, which may include fixed-post positions, traffic control, crowd control, enforcing no-parking zones and maintaining general public safety. PUBLIC WORKS AND ROAD SERVICES - Local Public Works and Road Services and costs are the responsibility of the host venue. These services are necessary to support police efforts to ensure road closure and safety of the course. These services include: Detours and detour equipment Barricades Cones Printing/posting of No Parking signs Removal/restoration and street repair PERMIT SERVICES - All fees associated with city permits and permit requirements for the operation of the event are to be procured by the host venue on behalf of the Tour. They include, but are not limited to: Parking -both on and off street Alcoholic beverages -consumption in public, if served at a start, from cups and cans, in a private VIP area Road closures and use -closure and use of roads for setup and racing (includes permits for construction of staging, tents, wiring and electrical, portable generators, power equipment, and fork lift) Special and Ancillary Events - pre-event and race day Banners and Signs -hanging and display of pre-event, race day advertising, and sponsor banners. Concession Sales - on-site concession stands/vendors serving the spectators. EMT/EMS SERVICES - It is the responsibility of the host venue to provide EMT/EMS services for the general public the day of the Overall Start. Please note that the Tour provides medical services for the athletes, team support and staff personnel. Placement of EMT/EMS services will be decided by the Tour’s Technical Director. RESIDENT/BUSINESS NOTIFICATIONS – Host venues are responsible for notifying local residents and businesses of the impact of the tour including road closures, traffic advisories etc. PORT-O-LETS – Host venues will secure port-o-let services or public restrooms during the day of the Stage. The number of units and placement of the units will be mutually agreed upon by the host venue and the Tour’s Production Director. WASTE MANAGEMENT – Host venues will provide waste management/trash removal services during the event and at the conclusion of the Stage. PARKING REQUIREMENTS VEHICLE PROCESSING LOT (6 days in advance) - Must have capacity for 145 vehicles and 25 trucks with 24-hour access. Must be within walking distance of the Headquarter Hotel TEAM PARKING AND MECHANICS WORK AREA (3 days in advance) – Requires a sizable portion of the Headquarters Hotel parking lot with overnight Security. Each team travels with a motor coach, trailer and support vehicle and additional space is needed for mechanics to work on bikes. Must have access to water and power VIP / STAFF EVENT PARKING – Requires parking for approximately 80 vehicles within close proximity of start locations day of event. EVENT PARKING - Requires parking within close proximity of the start/finish area for approximately 100 vehicles for event staff and festival vendors. EXHIBIT B Protected Categories (Exclusivity) Category Tour Partner EXCLUSIVE Apparel – cycling Hincapie Sportswear Carbonated Beverage (incl isotonic) Energy Provider Energy Solutions Healthcare Network Healthcare/Sports Medicine: Emory Healthcare Home Improvement Merchandiser Retail Banking/Financial Investments: United Community Bank State Tourism/Economic Development Georgia Department of Economic Development Water EXHIBIT C Please insert City and LOC Marks EXHIBIT D TOUR MARKS GUIDELINES (a) The Tour Marks shall be used in accordance with the Tour de Georgia Graphics Standards Manual, published by TGF from time to time; (b) Host shall not use the Tour Marks in any manner that is misleading or that reflects unfavorably upon the reputation of the Tour, TGF, the State of Georgia, or any competitor in the Tour or in any manner that is contrary to applicable laws and regulations, including, without limitation, those relating to truth in advertising and fair trade practices; (c) Host shall not (i) permit any tradename or mark of a third party to appear in conjunction with Host’s materials that display any of the Tour Marks; or (ii) participate with any third party in a promotion using the Tour Marks or permit the Tour Marks to be used in a manner that could be reasonably interpreted as a promotion or endorsement of a third party’s products or services; (d) Host shall not use the Tour Marks without the appropriate trademark or copyright designation as required by TGF; (e) Host acknowledges that its selection as a stage venue is not based upon the results of any quality comparison between Host and any other municipality within the State of Georgia and agrees that it shall not represent otherwise to any third party or use the expressions “selected”, “approved”, “warranted”, “preferred”, or “consented to” by TGF, the State of Georgia, or the Tour, or any similar endorsement; (f) Host shall not use the license granted under this Agreement in any comparative advertising; and (g) Host shall not, after the expiration or termination of this Agreement, use any slogan or graphic device that was developed for use in conjunction with the Tour Marks if such slogan or graphic device implies an ongoing association with the Tour.