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YORK (on behalf of the TONY HAWK FOUNDATION) THIS SPONSORSHIP AGREEMENT (“Agreement”) is entered into as of the 23 rd day of September, 2008 by and between the New York City Department of Parks & Recreation (“Parks”) with offices located at 830 5th Avenue, New York, NY 10021, and Open Road of New York (on behalf of the Tony Hawk Foundation) (“Sponsor”) with offices located at 346 East 9th Street, NY, NY, 10003. WHEREAS, pursuant to Section 531 of the New York City Charter, Parks was established, the head of which was designated as the Commissioner of Parks (“Commissioner”); WHEREAS, the Commissioner, pursuant to Section 533 of the New York City Charter, is charged with the duty to manage and care for all sites under the jurisdiction of Parks, and has the duty to plan, develop, conduct and enter into arrangements, with public or private organizations, for the beneficial use of the people of the City of New York; WHEREAS, the Commissioner, pursuant to Section 18-133 of the Administrative Code of the City of New York, is authorized to make agreements with individuals or groups who wish to sponsor a park, playground, ball field, or other park space or facility by donating a specific amount of money or labor (“Adopt A Park Program”); WHEREAS, Sponsor wishes to participate in Parks’ Adopt A Park Program and provide financial assistance to the playground known as Coleman Square located at Cherry, Pike, and Monroe Streets, New York County, State of New York, which is identified as Parks property # M019 (the “Property”); WHEREAS, Parks desires to designate Sponsor as a partner in providing resources for the enhancement of the Property as hereinafter set forth. NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereto do hereby agree as follows: 1. Definitions. Terms which are capitalized in this Agreement are defined as set forth herein, or as follows: a) “Parks Trademarks” mean the trademark “New York City Department of Parks & Recreation,” and any other mark, design or symbol now or hereafter owned by the City of New York (the “City”). b) "Sponsor Sign" means any green Parks sign measuring twenty-four inches by eighteen inches (24" x 18") indicating that the enhancement and beautification of the Property was made possible by Sponsor;
provided, however, that such sign does not, in the Commissioner’s discretion, disrupt the aesthetic quality of the Property. The lettering shall be in the color white. c) “Sponsor Trademark” means the trademarks “Tony Hawk Foundation,” which is licensed to the Tony Hawk Foundation, “Open Road of New York,” which is licensed to Open Road of New York,” and “5boro Skateboards,” which is licensed to 5boro Skateboards. 2. Term. This Agreement shall take effect on September 29, 2008 and expire on September 29, 2009 (the "Term"). 3. Obligations of Sponsor. Sponsor shall contribute Fifty-One Thousand Dollars ($51,000) to improve the
i. Sponsor shall enter into an agreement with the contractor for $51,000 that meets with Parks’ approval to resurface pavement on Property. Such agreement shall name Parks as a Third Party Beneficiary and shall require Sponsor to deliver the warranty for such work to Parks. Moreover, no work shall be performed by the Sponsor’s contractor at the Property prior to receiving a construction permit from Parks’ Capital Projects Division. ii. at the Property. Any remaining funds shall be used to purchase “skate” elements to install
b) Any increase in Sponsor’s financial commitment to the Property shall be upon the written agreement of both Sponsor and Parks and upon the same terms and conditions herein; provided, however, that Sponsor shall have no obligation to increase its financial commitment. c) Sponsor grants Parks permission to use the Trademark “Open Road of New York” or “Tony Hawk Foundation” during the Term solely for purposes of the Sponsor Sign. All use of the Sponsor Trademark shall conform to any reasonable guidelines Sponsor may provide to Parks regarding usage and appearance. Parks shall not use any trademarks owned by Sponsor other than the Sponsor Trademark, except with Sponsor’s prior written consent. The Sponsor Trademark shall not be used reproduced or replicated without Sponsor’s prior written consent (except for the Sponsor Sign), and neither Parks nor any other person or entity shall have or be deemed to have acquired any ownership or other rights or interests with respect to the Sponsor Trademark. 4. 4 Obligations of Parks.
a) Parks shall provide one (1) Sponsor Sign to be located at a prime and highly visible location on the Eighth Avenue entrance to the Property subject to the approval of Sponsor, which shall not be unreasonably withheld. Parks shall ensure that the Sponsor Sign is maintained and repaired (if necessary) during the Term. Parks shall not place or allow any other Sponsorship Sign to be placed at the Property during the term.
b) Parks grants Sponsor a limited, non-exclusive, royalty-free license to use Parks Trademarks during the Term to advertise, publicly represent and otherwise promote Sponsor's sponsorship status regarding the Property, and for such other uses as Parks may reasonably approve in writing. The usage of Parks Trademarks shall conform to any reasonable guidelines Parks may provide to Sponsor regarding usage and appearance, and is subject to Parks’ prior written approval. 5. Relationship of Parties.
a) The relationship between Parks and Sponsor as established by this Agreement, is that of independent contractors, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other party, or (ii) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking. Neither party nor its agents or employees is the representative of the other party for any purpose except as expressly set forth in this Agreement, and has no power or authority as agent, employee or in any other capacity to represent, act for, bind, or otherwise create or assume an obligation on behalf of the other party for any purpose whatsoever. b) Nothing herein shall be construed to mean that the Property or any structure therein has been renamed for Sponsor or gives Sponsor or an agent or member thereof any authority to sell or display merchandise or use the Property in any manner inconsistent with the New York City Charter or any statute, law, rule or regulation. Moreover, nothing herein shall impede or impair in any way any concession, license, or other agreement between Parks and any other individual or entity. c) It is expressly understood and agreed that neither the Property as a whole nor any part thereof is leased to Sponsor, but rather this Agreement allows Sponsor to financially support the Property or any other Parks property located in the borough of Manhattan. d) The Commissioner may terminate this Agreement upon one (1) day's notice if the Commissioner deems termination to be in the best interest of the City. Should Parks cancel this Agreement prior to the natural conclusion of the Term, Parks shall promptly return to Sponsor any unspent funds from the contribution provided for in Section 3(a); provided, however, that Sponsor has fully complied with all terms of the Agreement. 6. Representations and Warranties. Sponsor and Parks each hereby represents, warrants and covenants to the other the following: a) Agreement; b) it possesses the full right, power and authority to enter into and fully perform this it has all rights necessary to grant the rights granted hereunder;
c) it has obtained and will comply with all required authorizations, approvals, licenses or permits from all government authorities in order for it to enter into and perform its obligations under this Agreement;
d) it is free of any contractual obligation that would prevent it from entering into or performing its obligations under this Agreement; and e) the execution, delivery and performance of this Agreement by it has been duly authorized by all necessary corporate action.. 7. Indemnification. Sponsor agrees to indemnify, hold harmless, and defend Parks from any and all liability, loss, cost, expense, damage and attorneys’ fees resulting from this sponsorship, including without limitation any claim arising out of or relating to an allegation that the Sponsor Trademark infringes, dilutes, or misappropriates any trademark, service mark, trade dress, copyright, or other intellectual property or proprietary rights of a third party, and Sponsor shall indemnify the City in the event that any judgment or other financial obligation is imposed upon the City with respect to this Agreement. However, this provision does not require Sponsor to indemnify Parks for any negligence or willful misconduct arising out of the acts or omissions of Parks, its staff members, employees, agents, and representatives in connection with Parks’ maintenance of the Property, or its breach of this Agreement. 8. Choice of Law, Consent to Jurisdiction, and Venue.
a) This Agreement shall be deemed to be executed in the City of New York, State of New York, regardless of the domicile of Sponsor and shall be governed by and construed in accordance with the laws of the State of New York. Any and all claims asserted by or against Parks and the City arising under this Agreement or related thereto shall be heard and determined either in the courts of the United States (“Federal Courts”) located in New York City or in the courts of the State of New York (“New York State Courts”) located in the City and County of New York. b) If Parks and the City initiates any action arising out of this Agreement against Sponsor in Federal Court or in New York State Court, service of process may be made on Sponsor either in person, wherever Sponsor may be found, or by registered mail addressed to Sponsor as its address is set forth in this Agreement, or to such other address as Sponsor may provide to Parks and the City in writing; and c) With respect to any action arising out of this Agreement between Parks and the City and Sponsor in New York State Court, Sponsor expressly waives and relinquishes any rights they might otherwise have (i) to move to dismiss on grounds of forum non conveniens, (ii) to remove to Federal Court; and (iii) to move for change of venue to a New York State Court outside New York County. d) With respect to any action arising out of this Agreement between Parks and the City and Sponsor in Federal Court located in New York City, Sponsor expressly waives and relinquishes any right it might otherwise have to move to transfer the action to a United States Court outside the City of New York.
e) If Sponsor commences any action arising out of this Agreement against Parks and the City in a court located other than in the City and State of New York, upon request of Parks and the City, Sponsor shall consent to a transfer of the action to a court of competent jurisdiction located in the City and State of New York, or if the court where the action is initially brought will not or cannot transfer the action, Sponsor shall consent to dismiss such action without prejudice and may thereafter reinstitute the action in a court of competent jurisdiction in New York City. 9. Investigations.
a) The parties to this Agreement shall cooperate fully and faithfully with any investigation, audit or inquiry conducted by a State of New York or City of New York governmental agency or authority that is empowered directly or by designation to compel the attendance and to examine witnesses under oath or conducted by the Inspector General of a governmental agency that is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the investigation, audit or inquiry. b) i) If any person who has been advised that his or her statement and any information from such statement will not be used against him or her in any subsequent criminal proceeding refuses to testify before a grand jury or other governmental agency or authority empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath concerning the award of or performance under any transaction, agreement, lease, permit, contract or license entered into with City, State or any political subdivision or public authority thereof, or the Port Authority of New York and New Jersey, or any local development corporation within City, or any public benefit corporation organized under the laws of the State of New York; or ii) If any person refuses to testify for a reason other than the assertion of his or her privilege against self incrimination in an investigation, audit or inquiry conducted by a City or State governmental agency or authority empowered directly or by designation to compel the attendance of witnesses and to take testimony under oath, or by the Inspector General of the governmental agency that is a party in interest and is seeking testimony concerning the award of or performance under any transaction, agreement, lease, permit, contract or license entered into with City, State or any political subdivision thereof or any local development corporation within the City; then c) i) The commissioner or agency head whose agency is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit or license shall convene a hearing, upon not less than five (5) days written notice to the parties involved to determine if any penalties should attach for the failure of a person to testify. ii) If any non-governmental party to the hearing requests an adjournment, the commissioner or agency head who convened the hearing may, upon granting the adjournment, suspend any contract, lease, permit or license pending the final determination pursuant to subsection (e) below without the City incurring any penalty or damage for delay or otherwise.
d) The penalties which may attach after a final determination by the commissioner or agency head may include, but not exceed: i) The disqualification for a period not to exceed five (5) years from the date of an adverse determination for any person or entity of which such person was a member at the time the testimony was sought from submitting bids for, transacting business with or entering into or obtaining any contract, lease, permit or license with or from City; and/or ii) The cancellation or termination of any and all such existing City contracts, leases, permits or licenses that the refusal to testify concerns and that have not been assigned as permitted under this Agreement, nor the proceeds of which pledged, to an unaffiliated and unrelated institutional lender for fair value prior to the issuance of the notice scheduling the hearing, without the City incurring any penalty or damages on account of such cancellation or termination; monies lawfully due for goods delivered, work done, rentals, or fees accrued prior to the cancellation or termination shall be paid by City. e) The commissioner or agency head shall consider and address in reaching his or her determination and in assessing an appropriate penalty the factors in Sections 9(e)(i) and 9(e) (ii) below. He or she may also consider, if relevant and appropriate, the criteria established in Section 9(e)(iii) and 9(e)(iv) below in addition to any other information which may be relevant and appropriate: i) The party’s good faith endeavors or lack thereof to cooperate fully and faithfully with any governmental investigation or audit including, but not limited to, the discipline, discharge or disassociation of any person failing to testify, the production of accurate and complete books and records and the forthcoming testimony of all other members, agents, assignees or fiduciaries whose testimony is sought. ii) The relationship of the person who refused to testify to any entity that is a party to the hearing, including, but not limited to, whether the person whose testimony is sought has an ownership interest in the entity and/or the degree of authority and responsibility the person has within the entity. iii) The nexus of the testimony sought to subject entity and its contracts, leases, permits or licenses with City. iv) The effect a penalty may have on an unaffiliated and unrelated party or entity that has a significant interest in an entity subject to penalties under Section 9(d) above, provided that the party or entity has given actual notice to the commissioner or agency head upon the acquisition of the interest, or at the hearing called for in Section 9(c)(i) above gives notice and proves that such interest was previously acquired. Under either circumstance the party or entity must present evidence at the hearing demonstrating the potential adverse impact a penalty will have on such person or entity. f) i) The term “license” or “permit” as used herein shall be defined as a license, permit, franchise or concession not granted as a matter of right.
ii) The term “person” as used herein shall be defined as a natural person doing business alone or associated with another person or entity as a partner, director, officer, principal or employee. iii) The term “entity” as used herein shall be defined as any firm, partnership, corporation, association or person that receives monies, benefits, licenses, leases or permits from or through City or otherwise transacts business with the City. iv) The term “member” as used herein shall be defined as any person associated with another person or entity as a partner, director, officer, principal or employee. g) In addition to and notwithstanding any other provision of this Agreement the commissioner or agency head may in his or her sole discretion, terminate this Agreement upon not less than three (3) days written notice in the event Sponsor fails to promptly report in writing to the Commissioner of Investigation of the City of New York any solicitation of money, goods, requests for future employment or other benefit or thing of value, by or on behalf of any employee of the City or other person, firm, corporation or entity for any purpose which may be related to the procurement or obtaining of this Agreement by Sponsor, or affecting the performance of this Agreement. 10. Miscellaneous
a) Notices. Every notice required or contemplated by this Agreement shall be in writing. Notices shall be deemed received when sent by confirmed facsimile or two (2) business days after deposit with a commercial express courier. All notices will be sent to the address for each party as set forth in the first paragraph of this Agreement (to the General Counsel at The Arsenal for Parks), or such other address as may be designated by written notice. b) Modification. This Agreement may be amended or modified only by written instrument signed by an authorized representative of both parties. c) Entire Agreement. This Agreement constitutes the entire agreement between Sponsor and Parks with respect to the subject matter of this Agreement, superseding all drafts, all prior or contemporaneous agreements or oral negotiations, and all promises, understandings or representations, whether written or oral. d) Waiver. The non-enforcement of any provision of this Agreement, or failure to insist on strict compliance with any of the terms, covenants or conditions hereof, shall not be deemed a waiver of any right granted under this Agreement; nor shall any waiver of any right granted hereunder on one occasion be deemed a waiver at any other time. e) Severability. In the event that any clause of this Agreement is found by a court validly asserting jurisdiction to be unenforceable, that clause will be considered void to the extent it is contrary to the applicable law, but such a finding shall not affect the validity of any
other clause of the Agreement, and the rest of the Agreement shall remain in full force and effect. f) Execution by Counterparts. This Agreement may be executed by facsimile and in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day first written above. NYC DEPT OF PARKS & RECREATION By: ________________________________ Name: _____________________________ Title: _____________________________ OPEN ROAD OF NEW YORK By: ____________________________ Name: Paula Hewitt_______________ Title: Executive Director ___________
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