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HomeMy WebLinkAboutC13-189 Sponsorship Agreement - Rodeo - Jack DanielsSPONSORSHIP AGREEMENT This Sponsorship Agreement (the "Agreement ") is made on this 11th day of April, 2013, by and between Brown - Forman Corporation ( "Sponsor "), on behalf of its brand Jack Daniel's® (the "Brand "), with its principal place of business located at 850 Dixie Highway, Louisville, KY 40210 and Eagle County Rodeo ( "Organizer "), with its principal place of business located at P.O. Box 250, Eagle, CO 81631. Sponsor and Organizer shall sometimes be referred to herein as the "parties." RECITALS WHEREAS Organizer organizes, operates, and promotes an event called the Eagle County Rodeo, scheduled to occur on July 24 -27, 2013, in Eagle Colorado ( "the Event" or "Rodeo "); and Event; WHEREAS, Sponsor desires the right to promote its Brand as a named sponsor of the NOW, THEREFORE, in consideration of the foregoing, the parties agree as follows: 1. Term. This Agreement will commence on the date specified above and will expire on July 28, 2013 ( "Term "). 2. Organizer's Obligations. For the Term of this Agreement, Organizer agrees to the following: A. Event Development and Production. Organizer will develop and produce the Event, as permitted by law, and in accordance with Brown - Forman Corporation's Marketing, Advertising and Promotional Policy for Beverage Alcohol, which may be amended from time to time, attached as Exhibit A and incorporated herein by reference ( "Guidelines "). Additionally, Organizer will be responsible for all activities necessary to operate the Event, including but not limited to obtaining all necessary permits, setting up the Event, promoting the Event, and conducting any other activity necessary to operate the Event. Organizer will receive all profits from ticket sales to the Event. B. Advertising and Promotion. Organizer shall provide the following advertising and promotional consideration to Sponsor: 1) Sponsor will be advertised and recognized as the Official and Exclusive Spirit Sponsor of the Eagle County Rodeo. 2) Organizer to provide Sponsor an 8'x10' space if the Sponsor decides to set -up a database promotion on July 26 and 27 from 6:00 pm to 8:00 pm. (location must be in an area where audience is at least 71.6% above legal drinking age). 1 �_ /�­/&7 C' C% 3) Organizer agrees to place the Sponsor logo on all print and media advertising (advertising audience must be at least 71.6% above legal drinking age). 4) Organizer to display two (2) 3'x10' Sponsor banners in the rodeo arena (Sponsor to provide banners). 5) Organizer to display two Sponsor banners on the rodeo grounds. 6) Organizer to recognize Sponsor in a minimum of two (2) public address announcements during each rodeo performance. 7) Organizer to display one full page Sponsor ad in the rodeo program. 8) Sponsor Flag to be included in each rodeo performance with other national /platinum sponsor flags. 9) Organizer to provide Sponsor with 30 tickets to the rodeo for Sponsor to use in any manner it so chooses, including consumer give - aways. 10) Organizer to provide Sponsor with 16 tickets to the appreciation dinner. C. Attendance Requirements. Prior to Event, Organizer shall provide to Sponsor reliable demographic data showing that at least 71.6% of the Event's attendees are at or above the legal drinking age. 3. Consideration. In consideration of the foregoing, Sponsor agrees to pay Organizer $3,000 (three thousand dollars and zero cents) by check (payment to be made after the rodeo has taken place) to "Eagle County Fair and Rodeo" at: Eagle County Rodeo Rachel Oys Assistant County Manager PO Box 850 Eagle, CO 81631 970 - 328 -8858 4. Cancellation of Event. In the event the Event is rescheduled from its original date(s), both parties to this Agreement will continue to be entitled to all rights and obligations of the terms and conditions contained herein with respect to the reschedule Event. If the Event is unable to be rescheduled for reasons beyond the control of either party, Sponsor shall be entitled to certain make - goods, to be mutually agreed to by the parties, including a refund of any consideration or fees previously paid to Organizer with respect to the cancelled Event. 5. Force Majeure. Subject to paragraph 4 above, if Organizer or Sponsor is prevented from performing any of their obligations under this Agreement that is beyond their control as a result of an event of force majeure, such as an Act of God, fire, flood, earthquake, war, embargo, strikes, labor disputes, explosions, riots, or laws, rules or regulations of any governmental authority to which such entity is subject, or any other cause that is beyond the control of the affected party, then Organizer and Sponsor shall be excused from any further performance of their obligations under this Agreement. 2 � C- 6. Default. No failure by either party to perform any of its obligations hereunder shall be deemed a breach hereof, unless the non- breaching party gives the breaching party written notice of such failure and the breaching party fails to cure such nonperformance within thirty (30) days after its receipt.of such notice. If the noticed default or breach is timely cured, then performance shall continue under this Agreement as if no default or breach had occurred. If there is no timely cure, then the party giving such notice may pursue any and all legal remedies available to-it for the default or breach, including termination if the default or breach is material. 7. Termination. This Agreement shall terminate at the expiration of the Term. Upon mutual written agreement, the parties may agree to terminate or amend this Agreement prior to the expiration of the Term. Either party may terminate this Agreement immediately upon occurrence of one of the following: A. The other party's material breach, which is not remedied within thirty (30) days after receipt of written notice of such breach; B. Dissolution or liquidation of the other party; C. Appointment of a trustee or receiver for the other party; D. Bankruptcy or insolvency proceedings under federal or state law, whether voluntary or involuntary, that are commenced by or against the other party; E. An assignment by either party for the benefit of creditors; F. Organizer or the Event becomes a non - sanctioned PRCA event; or G. Organizer permits any other spirit brand to hang signage in the arena or on the rodeo grounds, or advertise on any supported print material. In the event of termination of this Agreement, if Sponsor has advanced payment to Organizer, in whole or in part, then Organizer shall refund the entire amount advanced to the Sponsor. 8. Notices. All notices or other communications required or permitted hereunder shall be in writing to the addresses below, and shall be (a).personally delivered, (b) sent by registered or certified mail, return receipt requested, or (c) sent by overnight commercial carrier, such as, among others Federal Express. Any such notice or other communication shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice; (ii) if mailed, on the date of delivery as shown by the addressee's registry or certification receipt; (iii) if sent and delivered by overnight commercial carrier, one (1) business day after the date of delivery of such communication to such carrier as marked thereon, with applicable charges prepaid. If to Organizer: Eagle County Rodeo Rachel Oys Assistant County Manager PO Box 850 Eagle, CO 81631 970 -328 -8858 If to Sponsor: .David Stang EVP Jack Daniel's Branded Experiences Brown - Forman Corporation 850 Dixie Highway Louisville, KY 40210 With a copy to: Brown- Forman Corporation Attention: Amanda Main, Senior Attorney 850 Dixie Highway Louisville, KY 40210 Tel: 502 774 -7814 Fax: 502 774 -7188 9. Trademarks. A. All Sponsor's and Brand's logos, taglines, labels and other designs and product identification (collectively "Sponsor's Trademarks ") are Sponsor's property. The use of any Sponsor's Trademarks shall inure to Sponsor's benefit, and all rights in Sponsor's Trademarks under trademark or copyright law or any other basis shall be Sponsor's exclusive property. Sponsor hereby grants to Organizer, subject to the terms and conditions of this Agreement, the nonexclusive, non - assignable and non - transferable right to use Sponsor's Trademarks for the Term in connection with the Event, subject to the terms of this Agreement. All proposed uses of Sponsor's Trademarks shall be subject to Sponsor's review and prior written approval. Furthermore, Organizer agrees not to use the Sponsor's Trademarks in a manner, that is derogatory to the Sponsor or Brand. Upon expiration of this Agreement's Term, Organizer shall cease all use of Sponsor's Trademarks as soon as practicable, but in any event within thirty (30) days, unless a particular medium requires a longer lead time, but in no event longer than ninety (90) days. B. The Event name (without Sponsor's Trademarks) and all Event logos, taglines and other designs and Event identification (collectively "Organizer's Trademarks ") are Organizer's property. The use of Organizer's Trademarks shall inure to Organizer's benefit, and all rights in Organizer's Trademarks under trademark or copyright law or any other basis shall be 'Organizer's exclusive property. Organizer hereby grants to Sponsor and its contractors for up to six (6) months from the date hereof (the "Promotion Period "), the nonexclusive, non - assignable and non- transferable right to use Organizer's Trademarks in connection with the Event, including but not limited to, the right and license to advertise, publicize, exploit, use and promote its sponsorship of the Event, or any portion thereof, in any manner and by any means or media, as rd G I C pre- approved by Organizer for the purposes contemplated in this Agreement and subject to the terms of this Agreement. All trademarks or other materials supplied by Organizer to Sponsor shall be deemed approved by Organizer. Upon expiration of the Promotion Period, Sponsor shall cease all use of Organizer's Trademarks as soon as practicable, but in any event within thirty (30) days, unless the particular medium requires a longer lead time, but in no event longer than ninety (90) days. Sponsor's use of Organizer's Trademarks as provided in this paragraph 9 shall survive the expiration or termination of this Agreement. C. Each party will be solely responsible for taking such actions as it deems reasonably appropriate to obtain trademark, service mark or copyright registration for its respective trademarks. All uses of or references to the trademarks shall inure to the benefit of the respective owner, and all rights with respect to the trademarks not specifically granted in this Agreement shall be and are hereby reserved to the respective owner. Each party acknowledges that the other is the exclusive owner of its own Trademarks, as defined above, and also acknowledges the validity and registration of those Trademarks. Neither party shall file register or record with any federal, state or local government or agency thereof any name, design or form that may be confused with any of the other's Trademarks. Moreover, neither party shall, during the Term of this Agreement or anytime thereafter, contest the other party's exclusive ownership, validity, or registration of its own Trademarks, or assist anyone else in doing so. The parties agree to cooperate with each other in preventing any acts or trademark infringement or unfair competition with respect to any of their Trademarks, however, Sponsor shall have sole control over all actions and legal proceedings to suppress infringement and unfair competition with respect to any of Sponsor's Trademarks. 10. Representations and Warranties. A. Organizer represents and warrants that it is a governmental entity and a political subdivision of the State of Colorado duly organized, validly existing.and in good standing under the laws of the State of Colorado; that it has all corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder; that the execution, delivery and performance by it of this Agreement and the consummation of the transactions contemplated hereby has been duly and validly authorized by all requisite corporate action, and no other corporate act or proceeding is necessary to authorize the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; that it is not subject to nor obligated under its, articles of incorporation or bylaws, or any applicable law, rule or regulation of any governmental authority, or subject to any order, writ, injunction or decree, which would be breached or violated by the execution, delivery or performance of this Agreement; that it is not under nor will it be under, any disability, restriction or prohibition with respect to its rights to fully perform in accordance with the terms and conditions of this Agreement; that there are no other agreements or commitments, oral or written, that will interfere with its full performance hereunder; that it will fully comply with all federal state and local laws, rules and regulations and any tariffs, taxes or customs requirements applicable to its obligations and performance in connection with the Event and shall be solely responsible for any and all payments that may be due in connection therewith; that any materials it provides in connection with this Agreement will not infringe upon the copyright, patent, trademark, trade secret or other intellectual property rights of any third party; that it is not insolvent or in any danger of 5 insolvency or bankruptcy and is not in dissolution proceedings; that there shall be no liens, claims or other interests which may interfere with, impair or be in derogation of the rights granted herein; and that it holds no beverage alcohol retail licenses, that the fee covered by this Agreement is not conditioned in any way upon any retail licensee's purchase or agreement to purchase any alcohol beverage products produced, sold or offered for sale by Sponsor, and that said sponsorship is not intended to and will not be used to induce any alcohol beverage retailer to purchase any of said products. Immediately following the execution of this agreement by Sponsor, but in no event more than thirty (30) days thereafter, Organizer shall provide Sponsor with executed copies of the Compliance Policy and Certification, the form of which is attached hereto as Exhibit B. B. Sponsor represents and warrants that it is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; that it has all corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder; that the execution, delivery and performance by it of this Agreement and the consummation of the transactions contemplated hereby has been duly and validly authorized by all requisite corporate action, and no other corporate act or proceeding is necessary to authorize the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; that it is not subject to nor obligated under its certificate of incorporation or bylaws, or any applicable law, rule or regulation of any governmental authority, or subject to any order, writ, injunction or decree, which would be breached or violated by the execution, delivery or performance of this Agreement; that it is not under nor will it be under, any disability, restriction or prohibition with respect to its rights to fully perform in accordance with the terms and conditions of this Agreement; that there are no other agreements or commitments, oral or written, that will interfere with its full performance hereunder; that it will fully comply with all federal state and local laws, rules and regulations and any tariffs, taxes or customs requirements applicable to its obligations and performance in connection with the Event and shall be solely responsible for any and all payments that may be due in connection therewith; that any materials it provides in connection with this Agreement will not infringe upon the copyright, patent, trademark, trade secret or other intellectual property rights of any third party; that it is not insolvent or in any danger of insolvency or bankruptcy and is not in dissolution proceedings; and that there shall be no liens, .claims or other interests which may interfere with, impair or be in derogation of the rights granted herein. 11. Indemnification. A. To the fullest extent permitted by law, Sponsor shall defend, indemnify, and hold harmless Organizer and its parents, affiliates, subsidiaries, licensees, successors and assigns, and the respective owners, officers, directors, agents and employees of each from and against all liability, actions, claims, demands, judgments, penalties, fines, losses, property damage, other injuries. (including but not limited to bodily injury, death, personal injury or mental anguish), or damages (including without limitation, reasonable attorneys' fees, expenses, court costs, expert fees) (collectively "Claims ") to the extent directly caused by: (i) the non - performance of Sponsor's obligations hereunder following notice and failure to cure (excluding any claim to the extent Organizer is obligated to indemnify Sponsor with respect thereto arising under subparagraph B below); (ii) Sponsor's breach of alleged breach of any of its representations C.1 and /or warranties set forth in this Agreement; (iii) negligence or misconduct by Sponsor, its agents, employees, or independent contractors; (iv) any materials, products or services offered or supplied by Sponsor hereunder; and (v) any claim of infringement of a third party's intellectual property rights by Organizer due to its use of Sponsor's Trademarks as authorized by this Agreement. B. To the fullest extent permitted by law, Organizer shall defend, indemnify, and hold harmless Sponsor and its parents, affiliates, subsidiaries, licensees, successors and assigns, and-their respective owners, officers, directors, agents and employees of each from and against all liability, actions, claims, demands, judgments, penalties, fines, losses, property damage, other injuries (including but not limited to bodily injury, death, personal injury or mental anguish), or damages (including without limitation, reasonable attorneys' fees, expenses, court costs, expert fees) (collectively "Claims ") to the extent caused by or arising out o_ f- (i) the Event and associated events, including but not limited to Organizer's obligations under this Agreement (excluding any claim to the extent Sponsor is obligated to indemnify Organizer with respect thereto arising under subparagraph A above); (ii) Organizer's breach of any of its representations and /or warranties set forth in this Agreement; (iii) negligence or misconduct by Organizer, its agents, employees, or independent contractors; (iv) any materials, products or services offered or supplied by Organizer hereunder, including the materials, products or services of any third parties that Organizer may hire or retain in conjunction with the Event; and (v) any claim of infringement of a third party's intellectual property rights by Sponsor due to its use of Organizer's Trademarks as authorized by this Agreement. C. Organizer and Sponsor shall each be entitled to claim indemnity or contribution from the other if any judgment, claim 'suit, loss, damage, liability or expense for which it has provided indemnity is found to have arisen from or was contributed to by the other. D. The indemnitor may assume, and .if the indemnitee requests in writing shall assume, the defense of any Claim. The indemnitor shall allow the indemnitee to participate in the defense of any Claim at the indemnitee's own expense if the indemnitee notifies the indemnitor of its request to do so in writing. The indemnitee shall give the indemnitor prompt notice of any Claim that may fall within the ambit of this paragraph. If the indemnitee settles any Claim without the indemnitor's prior written consent, the indemnitor shall be released of any liability or obligation to the indemnitee under this paragraph; provided, however, that the indemnitor shall not be released of any liability or obligation to the indemnitee under this paragraph if the indemnitor has refused or failed to assume the defense ,of any Claim after the indemnitee has requested that it do so in writing. 12. Insurance. Throughout the Term, Organizer shall maintain, at its sole cost and expense, with financially responsible insurers having a rating of not less than A -X in the most recent edition of Best's Key Rating Guide, the following insurance: A. Comprehensive Automobile Liability Insurance. Such insurance shall include liability coverage in the amount of $2,000,000 (Combined Single Limit) covering any vehicle used in connection with this Agreement. B. Statutory Workers Compensation Insurance. Such insurance shall include Employers Liability Coverage with limits as follows: Bodily Injury by Accident $1;000,000 (each accident); Bodily Injury by Disease $1,000,000 (policy limit); Bodily Injury by Disease $1,000,000 (each employee); and shall contain a waiver of subrogation against Sponsor and its.employees, officers, directors and licensees. C. Comprehensive General Liability Insurance. Such insurance shall have a limit of liability of $5,000,000 per each occurrence (Combined Single Limit). Such insurance shall include a Broad Form Comprehensive General Liability endorsement, coverage for host liquor liability, advertisers liability, the contingent liability of contractors and shall include contractual liability covering the provisions of this Agreement. Such insurance shall, with the exception of workers' compensation insurance, name "Brown- Forman Corporation, its subsidiaries, divisions, employees, directors, officers, agents and licensees" as additional insureds on a primary and non - contributing basis. Upon execution of this Agreement, and thereafter prior to renewal, Organizer or its broker or insurers- shall provide Sponsor with certificates of insurance evidencing such coverage is in full force and effect. The certificate shall state that the insurance policies may not be materially modified or canceled without giving 30 (thirty) days advance written notice to certificate holder. 13. Relationship of the Parties. Each party is an independent contractor and the parties shall not have the authority to bind, represent or commit the other. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, fiduciary relationship or agency relationship between the parties for any purpose. In addition, neither party shall be deemed a joint employer of the other's employees. Neither party's employees shall be deemed "leased" employees of the other. Each party shall be solely responsible for the supervision of its employees and for the fulfillment of all obligations incumbent upon an employer with regard to its employees, including the withholding and payment of income taxes, statutory benefits, and social security taxes, and the provision of health, disability and other benefits or workers' compensation insurance. 14. Successors and Assigns. Neither party may assign its rights, nor delegate its obligations under this Agreement, without the prior written approval of the other party. This Agreement shall bind the parties, their respective successors and permitted assigns, and shall inure to the benefit of the other party, its successors and permitted assigns. 15. No Third -Party Beneficiary. Any agreement to pay any amount and any assumption of liability herein contained, express or implied, shall be only for the benefit of the Organizer and the Sponsor, and such agreements and assumption shall not inure to the benefit of the obligees of any indebtedness or any other party, whomsoever, deemed to be a third -party beneficiary of this Agreement. 16. Labor Unions. Organizer agrees to execute and fully comply with any union agreements it may enter into for the performance of its obligations hereunder. C11 . 17. Legal Compliance. Organizer agrees to comply with all federal, state and local laws and regulations regarding the Events in all States wherein it engages in activities on behalf of the Brand, as well as the Distilled Spirits Council of the United States, Inc.'s (DISCUS) Code of Responsible Practices for Beverage Alcohol Advertising and Marketing, which may be amended from time to time, attached as Exhibit C. These specific laws may affect the Event and its promotion. Under no circumstance will either party knowingly implement the Event or its promotion if it is prohibited from doing so by federal, state, or local laws. 18. Time. Time is of the essence in the performance of this Agreement. 19. Entire Agreement. This Agreement constitutes the entire understanding between the parties and supersedes all prior agreements, arrangements, representations, and communications, whether oral or written, regarding the subject matter of this Agreement. 20. Amendment or Modification. No modification or amendment of any term, condition or provision of this Agreement shall be valid or of any force or effect unless made in writing, signed by the duly authorized representatives of the parties, and specifying with particularity the nature and extend of such modification or amendment. 21. Severability. In the event that any term, condition or covenant contained in this Agreement is held to be invalid, any such invalidity shall not affect the validity and enforceability of any other term, condition, or covenant contained herein, which other terms shall remain in full force and effect. The provisions of this Agreement are for that purpose deemed to be severable. If any part of this Agreement is determined by a court of competent jurisdiction or a duly appointed arbitrator(s) to be unenforceable, the parties' agree that such court or arbitrator(s) shall substitute a reasonable, judicially enforceable limitation in place of the offensive part of this Agreement, which limitation reflects the intent of the parties as closely as possible, and that, as modified, the Agreement shall be fully enforceable as if set forth herein by the parties themselves in modified form. 22. Headings; Exhibits. The Article, Section, and Paragraph headings used in this Agreement are for reference purposes only, and should not be used in construing this Agreement. Any Exhibit attached to this Agreement is incorporated herein by reference and expressly made a part of this Agreement for all purposes. References to any Exhibit in this Agreement shall be deemed to include this reference and incorporation. 23. Survival. The terms of this Agreement that expressly or by implication continue in force notwithstanding its termination or expiration shall so continue in force. 24. Counterparts and Execution. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original Agreement, and all of which shall constitute one Agreement. 25. Authority. The parties agree and warrant that the undersigned individuals have been granted the authority to bind the Sponsor and Organizer to this Agreement. 0 26. No Waiver. The failure of either party to object to or to take affirmative action with respect to any conduct of the other party, which is in violation of the terms hereof, shall not be construed as a waiver thereof, nor of any future breach or subsequent wrongful conduct. 27. Right to Renew. Sponsor has the unconditional right to renew this Agreement with Organizer for the subsequent Rodeo on the same terms as set forth in this Agreement, which it may exercise by sending Organizer reasonable notice of its intent to do so. If Sponsor chooses not to renew this Agreement, then Organizer is free to solicit other sponsors for a similar sponsorship agreement for the subsequent Event, if any. THIS AGREEMENT is entered into as of the date first written. Eagle County Fair & Rodeo: By: rth Montag Title: lA . ,�%� ,moo- �-P-✓' Date: Brown - Forman Corporation: By: David Stang Title: By: Title: 10 EXHIBIT A [Brown - Forman Corporation's Marketing, Advertising and Promotional Policy for Beverage Alcohol, attached] 11 C% C EXHIBIT B STATEMENT OF COMPLIANCE POLICY It is the policy of all sales divisions of Brown - Forman Corporation ( "Brown- Forman ") to comply with all federal and state laws regulating alcoholic beverages. Brown - Forman purchases advertising.and participates in other promotional arrangements, including sponsorships, solely on the basis of receipt of advertising or promotional value commensurate with the cost incurred by Brown - Forman. No such purchase or participation is dependent upon, is in any way conditioned upon, or is intended to induce, any beverage alcohol retailer's purchase of any Brown - Forman products. Brown - Forman neither requires nor expects, any person with whom it enters into advertising or promotional arrangements to purchase Brown - Forman products for resale to consumers or to require any beverage alcohol retailer to do so as a part of or as consideration for Brown - Forman's purchase of advertising or promotional services. Brown - Forman recognizes that in all cases the retailer retains full and independent discretion to determine what beverage alcohol products it will purchase, whether they are Brown - Forman products or the products of any other industry member. Please sign below to certify that you understand Brown - Forman's Compliance Policy. CERTIFICATION I certify that I understand that Brown - Forman does not condition its purchase of any advertising display, sponsorship rights, distribution service, or its participation in any promotional arrangements on any retailer's purchase of alcoholic beverages sold or offered for sale by Brown - Forman; and that no such purchase or participation by Brown - Forman will induce any retailer to purchase alcoholic beverages sold or offered for sale by Brown - Forman,. but that any purchase of alcoholic beverages by any retailer will be the result of independent business considerations. Eagle County Fair & Rodeo Signature Date 12 EXHIBIT C [Distilled Spirits Council of the United States, Inc.'s (DISCUS) Code of Responsible Practices for Beverage Alcohol Advertising and Marketing, attached] 13