HomeMy WebLinkAboutLifeguard Clothing Sponsorship Agreement
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LIFEGUARD CLOTHING SPONSORSHIP AGREEMENT
THIS LIFEGUARD ~ CLOTHING SPONSORSHIP AGREEMENT (this
"Agreement"), dated as of ot"j\-te, 2006, between the CITY OF MIAMI BEACH, a Florida
municipal corporation having its principal place of business at 1700 Convention Center
Drive, Miami Beach, Florida 33139 ("City"), and PHILLIPS-VAN HEUSEN
CORPORATION, a Delaware corporation, having its principal executive office at 200
Madison Avenue, New York, New York 10016 ("Sponsor"),
WIT N E SSE T H:
WHEREAS, the City desires to obtain by donation and purchase from Sponsor,
apparel and related goods to be worn by the Lifeguards, as hereinafter defined, employed by
the City, while said Lifeguards are on duty, and Sponsor is willing to donate and sell such
products to the City;
WHEREAS, the City has the power and authority to allow Sponsor to use the
Lifeguard Logo, the City's trademarked seal (the City's Trademark) and the approved City
of Miami Beach logo (the City's Logo) all as hereinafter defined, and to advertise on
certain limited areas of City-owned or operated real and personal property, including the
City Beaches, as hereinafter defined, lifeguard stands (if elected by the City, at its option, as
provided herein), and any beach volleyball nets donated to the City by Sponsor, and to grant
Sponsor the exclusive right to promote itself as the provider of apparel and related items to
the Lifeguards, as and to the extent provided; and
WHEREAS, Sponsor desires to obtain the exclusive right to use the Lifeguard Logo,
City's Trademark, and the City's Logo to advertise on certain limited areas of City-owned or
operated real and personal property, including the City Beaches, lifeguard stands (if elected
by the City, at its option, as provided herein), and any beach volleyball nets donated to the
City by Sponsor, and to promote itself as the exclusive provider of apparel and related items
to the Lifeguards, as and to the extent provided herein..
NOW, THEREFORE, the parties agree as follows:
I, Definitions.
A. As used herein, the terms set forth below shall be defined as follows:
"Agreement Year" shall mean the twelve (12) month period commencing on the date
that this Agreement is duly executed by the authorized representatives of the City or
Sponsor, whichever is later, and each twelve (12) month period thereafter throughout the
term of this Agreement.
"Business Day" shall mean a day of the week other than Saturday or Sunday or
holidays on which City offices are closed,
"City Beaches" shall mean those beaches located within the City of Miami Beach
over which the City has jurisdictional or operational authority.
"City's Logo" shall mean the approved logo of the City of Miami Beach, as attached
and incorporated in Exhibit "A" hereto.
"City's Trademark" shall man the registered trademarked seal of the City of Miami
Beach, Florida, as attached and incorporated in Exhibit "A-I" hereto,
"Department" shall mean the City of Miami Beach Fire Department and/or the City
of Miami Beach Department of Parks and Recreation.
"Lifeguard" shall mean any person employed on a permanent or temporary basis by
the City as a lifeguard,
"Lifeguard Logo" shall mean the logo which has been approved by the City for
purposes of this Agreement and is attached and incorporated in Exhibit "B" hereto. Any
substitute logo, other than the one approved in Exhibit "B", must be approved in writing by
the City prior to Sponsor's use of same.
"Preferred Price" shall mean the price that Sponsor will charge the City for any
Sponsor Products and Program Clothing, as both terms are defined herein, The Preferred
Price for sales of Sponsor Products and Program Clothing to the City for use by the
Lifeguards or other City employees in connection with their duties as City employees will
equal eight percent (8%) over Sponsor's landed duty paid cost. The Preferred Price for sales
of Sponsor Products and Program Clothing to the City for resale by the City, either directly
or through its concessionaires and other City-approved third parties, will equal twenty
percent (20%) over Sponsor's landed duty paid cost. In each case, such price shall be
inclusive of logo and printing costs to the extent Program Clothing is involved,
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"Program Clothing" shall mean Sponsor Products bearing the Lifeguard Logo that
are donated or sold to the City pursuant to Section 2.
"Special Event Permit" shall mean a permit issued to Sponsor by the City (or any
department or agency thereof) for events that are conducted by Sponsor at City owned or
operated property and/or facilities or on private property, where the City's Special Event
Application and Guidelines require that a Special Events Permit be issued.
"Sponsor Products" shall mean clothing, clothing related items (including, without
limitation, hats), and towels manufactured by or on behalf of Sponsor under Sponsor's
owned or licensed trademarks. The term "Sponsor Products" shall not include sunglasses
which shall be specifically excluded from this Agreement.
"Sponsor's Trademark" shall mean any trademark, trade name or service mark, of
Sponsor, whether or not registered.
B. In this Agreement, (i) words used herein regardless of the gender specifically
used shall be deemed and construed to include any other gender, masculine, feminine or
neuter, as the context shall require, (ii) all terms defined in the singular shall have the same
meanings when used in the plural and vice versa, (iii) the terms "include" and "including"
shall be deemed to be followed by "without limitation" whether or not such words in fact
follow and (iv) all references to sections and paragraphs refer to the corresponding
provisions of this Agreement. Any statute defined or referred to herein or in any agreement
or instrument that is referred to herein means such statute as from time to time amended,
modified or supplemented, including (in the case of statutes) by succession of comparable
successor statutes. References to a person are also its predecessors and permitted successors
and assigns.
2, Rights Granted to Sponsor. Subject to the conditions set forth herein below, the City
grants Sponsor, during the term of this Agreement, the right to be the exclusive provider of
Program Clothing and Sponsor Products to the Lifeguards. As such, City hereby grants
Sponsor, during the term of this Agreement, the exclusive right to promote itself as the
"Official Outfitter of the City of Miami Beach Ocean Rescue", or other similar wording
approved by the City, such approval not to be unreasonably withheld, identifying Sponsor as
the provider of Program Clothing and Sponsor Products to the Lifeguards, All Program
Clothing shall display a Sponsor Trademark, and no other trademarks shall appear on the
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Program Clothing, other than Sponsor's Trademarks, the Lifeguard Logo, and/or the City's
Trademark and/or the City's Logo, ifused in the design,
In addition, Sponsor shall have the following ancillary rights and obligations:
A. Within the initial three (3) year term of this Agreement, as well as each three
(3) year renewal term, the City, at its sole option and discretion, may erect one new ocean
lifeguard stand bearing the Sponsor's Trademark, as approved by Sponsor, at a prominent,
high traffic, high visibility location on the City Beaches, such location to be mutually
acceptable to both Sponsor and the City. Each such lifeguard stand shall display no
trademarks other than the Sponsor's Trademarks, the City's Trademark, and/or the City's
Logo, and/or any other public or governmental authority trademark(s) if deemed necessary
by the City, in its sole discretion. Should the City elect to construct and/or otherwise
provide the aforestated lifeguard stands, it shall provide Sponsor with written notice of its
election to do so, said notice to be provided no later than thirty (30) days prior to the
expiration of the initial term, or a renewal term, as the case may be. Sponsor shall
reimburse the City in an amount up to $15,000 (per term) toward design and construction of
each new ocean lifeguard stand within thirty (30) days after Sponsor's receipt of the City's
invoice setting forth in detail the design and constructions costs of such lifeguard stand.
Such lifeguard stands shall be made available to the Sponsor for promotions, marketing and
advertising, at times agreed upon by the City.
B. Sponsor shall have the exclusive right to use the Lifeguard Logo during the
term of this Agreement on or in connection with the sale of Sponsor Products, including in
connection with the advertising and promotion of said Sponsor Products for sale to the
general public, Notwithstanding the preceding sentence, Sponsor acknowledges and agrees
that the City shall have the right to use Lifeguard Logo, or allow Logo to be used, during the
term of the Agreement, in connection with public non-commercial purposes. Without
limiting the generality of the foregoing, Sponsor shall have the exclusive right to provide
Sponsor Products bearing the Lifeguard Logo for sale by the City, either directly or through
its concessionaires or other City-approved third parties. Sponsor Products shall be sold by
Sponsor to the City for its own use or for resale, as provided herein, at the applicable
Preferred Price.
The parties acknowledge and agree that no exact replica of the Program Clothing
produced for the Department or other City personnel shall be provided or sold to anyone
other than the City, nor shall it be provided to any person other than appropriate City
personnel.
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C. Sponsor shall have the right to apply for four (4) Special Event Permits in
each Agreement Year for events at which Sponsor Products will be promoted, without
having to pay the City permit and application fees. All other costs associated with these
events shall be the sole responsibility of Sponsor, with the exception ofthe City permit and
application fees, The issuance of such Special Event Permits shall be subject to and
contingent upon the following conditions: (i) Sponsor meets all of the requirements of the
permit process (other than the payment of City permit and application fees); (ii) Sponsor
complies with the Special Event Application and Guidelines established by the City's
Tourism and Cultural Department, Special Events Division, and any and all conditions that
the City may attach to the issuance of a Special Events Permit, if issued; (iii) Sponsor's
event identifies IZOD as the principal sponsor ofthe event; and (iv) the proposed event does
not conflict with a previously scheduled event for the intended site,
Sponsor shall also be provided with twenty (20) complimentary rounds of golf on
the Miami Beach Golf Club, or other City-owned or operated golf course, as Sponsor may
reasonably request, at such times as Sponsor may reasonably request upon reasonable prior
notice.
D. Sponsor shall have the right to publicize its sponsorship arrangements under
this Agreement through print advertisement, television, radio, electronic media and other
similar forms of commercials and other forms of marketing and promotional materials, as
well as through packaging and tags used with or on Sponsor Products, Sponsor's
publication of its sponsorship relationship with the City shall be consistent with the image,
prestige and branding of the City. The City shall have prior review and approval of all
packaging and tags hereunder, such approval not to be unreasonably withheld. Sponsor may
continue to use all approved materials, provided it makes no material changes to the same.
Without limiting the generality of the foregoing, Sponsor shall have the right to make
public, non-commercial publications of its sponsorship relationship with the City without
prior approval.
E. Sponsor agrees that any logos, official designations and trademarks
developed or used by Sponsor for exclusive placement on Program Clothing and Sponsor
Products that incorporate the Lifeguard Logo and/or the City's Trademark, and/or the City's
Logo, shall at all times remain the exclusive property of the City. If the City chooses to seek
registration under federal trademark law for any logos, including the Lifeguard Logo and the
City's Logo, in connection with Sponsor Products, Sponsor shall assist the City in seeking
such registration, and thereafter maintaining the registration of any such logos, during the
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term and any renewal terms, including reimbursing the City for any application, registration
or maintenance fees attributable to the Sponsor Products. Upon termination, and in the
absence of the extension, renewal or replacement of this Agreement, Sponsor shall transfer
to the City all rights, entitlements and ownership of all said logos, including but not limited
to the Lifeguard Logo, and the City's Logo, official designations and trademarks, which
Sponsor may have by virtue of this Agreement, and the City shall thereafter be solely
responsible for maintaining any and all such registered logos, official designations and/or
trademarks. Nothing herein shall be deemed to give the City any right in any of the
Sponsor's Trademarks or any other trademark incorporating any of Sponsor's Trademarks.
F, Sponsor will design and donate to the City during each Agreement Year
(including renewal terms):
(i) 135 sets of Program Clothing, each set to consist of the following Program
Clothing:
Ocean Rescue/Department of Parks and Recreation Lifeguard Uniform Set
Polo Style Shirt 2
Combination of Heavy + T shirts 6
Warm-up jacket 1
Warm-up pant 1
Combination of Water or Board Shorts 6
Fleece lined (mid-weight) jacket 1
Fleece (zippered) pullover 1
Competition Swim Suit 3
Hat (Combination of Baseball and floppy Style) 3
TOTAL PIECES PER SET 24;
(ii) 200 sets of Program Clothing, each set to consist of the following Program
Clothing:
Fire Department Uniform Set
Polo Style Shirt
Cargo Style Pant
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4
TOTAL PIECES PER SET
8; and
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(iii) 35 sets of Program Clothing, each set to consist of the following Program
Clothing; provided that, during the term of this Agreement, the City shall at all times during
carry 120 units of a representative selection of golf products bearing Sponsor's IZOD
trademark at the Miami Beach Golf Club.
Golf Course Uniform Set
Polo Style Shirt 5
Cargo Style Pant or Short 5
Golf Windbreaker Jacket 1
TOTAL PIECES PER SET 11
In addition, for the first Agreement Year, and the first Agreement Year of any
renewal term, Sponsor shall include with the Ocean Rescue and Department of Parks and
Recreation uniform sets a total of 100 fleece-lined, wind and water resistant jackets with
roll-up hoods in the neck band.
All Program Clothing for an Agreement Year shall be delivered by or on behalf of
Sponsor to the City by November 1 st of each Agreement Year. Sponsor and the City may
mutually agree, in writing, to alterations in the design of the Program Clothing,
G, Sponsor will sell to the City at the Preferred Price any additional Program
Clothing requested beyond that required under Section 2F. Such additional Program
Clothing shall be delivered by Sponsor to the City by November 1 st of each Agreement Year
provided that the City orders such items by March 1 st of such Agreement Year (or the date
effective hereof in the case of the first Agreement Year).
H. The City can purchase from Sponsor at the Preferred Price additional
Sponsor Products of types not listed in Section 2F for the Lifeguards and other employees of
the Department, or any other City department, division or agency. In addition, to the
foregoing, the City, at its sole discretion, may request that Sponsor become a sponsor of any
or to all other City departments, divisions and agencies through a program similar to the
program hereunder, under the same material terms and conditions as set forth in this
Agreement.
3. Term and Extension of Rights, This Agreement shall be deemed to commence on
the date it is executed by the authorized representatives of the City or Sponsor, whichever
is later, and shall continue for three (3) Agreement Years, This Agreement may be extended
by mutual agreement of the parties for up to two consecutive three-year terms on the same
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terms and conditions specified in this Agreement. If a party desires to extend this
Agreement, it must inform the other party in writing at least eight (8) months prior to the
termination of the third or the sixth Agreement Year, as the case may be, This Agreement
shall thereafter be extended unless the receiving party notifies the sending party within sixty
(60) days of its receipt of the notice of extension that the receiving party does not desire to
extend this Agreement.
4. Operation Expansion or Reduction. Sponsor and the City agree that in the event that the
City's jurisdictional or operational authority on any City Beach is expanded or reduced, thereby
affecting the extent of Sponsor's ability to advertise its Sponsor Products, Sponsor shall have the
right to terminate this Agreement without penalty or further liability or obligation.
5. Representations and Warranties.
A. Sponsor represents and warrants that it has all rights, power and authority to
enter into this Agreement and perform its obligations hereunder.
B. The City represents and warrants that it owns all right, title and interest in
and to the Lifeguard Logo, the City's Logo, and the City's Trademark and has all rights,
power and authority to grant to Sponsor the rights granted to Sponsor hereunder,
6. Default and Termination.
A. A party ("breaching party") shall be deemed to be III default of this
Agreement upon one or both of the following conditions:
1. The breaching party fails to perform in all material respects its obligations
under this Agreement within thirty (30) days after its receipt of written notice
from the other party describing in sufficient detail the nature and extent of
the failed performance, However, if the occurrence of such failure to
perform is due to fire, earthquake, or other events reasonably beyond the
control of the breaching party, the non-breaching party shall grant a
reasonable extension of time within which the breaching party may meet its
obligations, the length of time for such extensions to be reasonably
determined by the non-breaching party; or
11, A party shall become bankrupt or insolvent, or enters into liquidation, or has
a receiver appointed and is prevented from fulfilling its obligations.
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B. Upon the occurrence of either of the foregoing conditions, the non-breaching
party shall have the right to terminate this Agreement within sixty (60) days after serving
written notice to the breaching party.
C. Neither party shall be held liable for any damages caused to the other by
reason of the breaching party's failure to perform any obligation hereunder when said failure
to perform is a result of a court order issued by court of competent jurisdiction.
D. In the event of termination of this Agreement, by default or by expiration of
this Agreement, the City shall have all rights to possession and use of all Program Clothing
and Sponsor Products that has been donated or paid for, the lifeguard stand(s), the volleyball
nets, and all other goods purchased and/or donated from Sponsor hereunder. The City shall
also be obligated to purchase at the Preferred Price all other Program Clothing and other
Sponsor Products, if any, ordered for the current Agreement Year or the immediately
subsequent Agreement Year,
8, Waiver. The failure or inability of either party to enforce any right hereunder shall
not serve as a waiver or modification of any right hereunder. Any waiver, to be effective,
must be in writing and signed by the party to be charged, No specific waiver of any right
shall prohibit a party from enforcing said right in the future.
9. Notices, All notices, communications and statements given hereunder shall be given
at the respective addresses of the parties as set forth below (or such other address as a party
shall designate by notice hereunder) in writing. Any notice concerning this Agreement shall
be personally delivered or sent by registered, certified or overnight mail, recognized courier
or fax (with electronic confirmation and confirmation copy sent by regular mail) and shall
be effective upon receipt. The addresses for the parties are:
City: City of Miami Beach
Office of the City Manager
Miami Beach, Florida
Attention: Robert Middaugh, Asst, City Manager
Telephone: (305) 673-7010
Facsimile: (305) 673-7782
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With a copy to:
City of Miami Beach
Office of the City Manager
Miami Beach, Florida
Attention: Hilda Fernandez, Asst. City Manager
Telephone: (305) 673-7010
Facsimile: (305) 673-7782
Sponsor:
Phillips- V an Heusen Corporation
200 Madison Avenue
New York, NY 10016
Attention: Malcolm Robinson
Telephone: (212) 381-3811
Facsimile: (212) 381-3965
With a copy to:
Phillips-Van Heusen Corporation
200 Madison Avenue
New York, NY 10016
Attention: Mark D. Fischer, Esq.
General Counsel
Telephone: (212) 381-3509
Facsimile: (212) 381-3970
10, Assignment. Neither party to this Agreement shall have the right to assign or
delegate any of its rights or obligations hereunder without the prior written consent of the
other party, Notwithstanding the foregoing, Sponsor can use third parties to produce any or
all items provided to the City (whether sold or donated, including goods sold to the City
whether for use by the City or its employees or for resale by the City's concessionaires or
other City-approved third parties) pursuant to this Agreement.
11. Severability of Provisions. Should any individual provision of this Agreement be
declared void, the validity of the remainder of this Agreement will not be affected and will
remain in full force and effect unless the overall intent of the parties in entering into this
Agreement is defeated thereby.
12, No Joint Venture. Nothing herein contained shall be deemed to constitute this a
joint venture or partnership between the parties and neither of them shall have the power to
bind the other in any way, and neither shall be responsible for any obligations of the other,
except as herein specifically provided.
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13, Headings. The section headings used herein are for convenience and reference only
and shall not define or limit any of the terms or provisions hereof.
14. Amendment of Agreement. All amendments and modifications of this Agreement
must be in writing and shall not be effective unless and until signed by both parties.
15, Governing Law and Exclusive Venue, This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida, both substantive and
remedial, without regard to principles of conflict of laws. The exclusive venue for any
litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state
court, and the U.S. District Court, Southern District of Florida, if in federal court, BY
ENTERING INTO THIS AGREEMENT, CITY AND SPONSOR EXPRESSLY WAIVE
ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
16, Entitlement to Costs, If any legal action or dispute arises under this Agreement, the
prevailing party shall be entitled to recover all costs and expenses, including reasonable
attorneys' fees, investigative costs, reasonable accounting fees and charges for experts, The
"prevailing party" shall be the party that obtains a remedy, or that is entitled to recover its
reasonable costs of suit, upon final, non-appealable judgment. If there is no court action, the
prevailing party shall be the party that wins any dispute, A party need not be awarded
money damages or all relief sought in order to be considered the "prevailing party" by an
arbitrator or a court.
17, Entire Agreement. This Agreement contains the entire understanding between the
parties relating to the subject matter herein contained and supercedes any and all prior
agreements and understandings, whether written or oral.
F:\atto\AGUR\AGREEMN1\Lifeguard Clothing Sponsorship Agreement (Revised Final 5-16-06).doc
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IN WITNESS WHEREOF the parties have entered into this Agreement as of the day and
year first above written.
SPONSOR:
~
PHILLIPS-VAN HEUSEN CORPORATION
BY:~~
Mark D, Fischer
Vice President
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Print Name
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City Clerk
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Date
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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EXHIBIT" A"
[APPROVED LOGO OF THE CITY OF MIAMI BEACH - TO BE ATTACHED]
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EXHIBIT "A-I"
[REGISTERED TRADEMARKED SEAL OF THE CITY OF MIAMI BEACH - TO
BE ATTACHED]
14
EXHIBIT "B"
[LIFEGUARD LOGO APPROVED BY CITY OF MIAMI BEACH - TO BE
ATTACHED]
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