Loading...
HomeMy WebLinkAboutLA CLIPPERSINSURANCE NOT ON FILE N-2020-002 WORK MAY NOT PROCEED C mo CLERK OF COUNCIL DATE: 0' kKw S,1V,A (Ueva) `k AGREEMENT WITH LA CLIPPERS FOR PURCHASE OF JR. CLIPPERS MERCHANDISE AND BASKETBALL CLINIC THIS AGREEMENT is made and entered into this � day of December, 2019 by and between LA Clippers LLC, a Delaware Limited Liability Company (hereinafter "Clippers"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). Clippers are a member of the National Basketball Association ("NBA"). City and Clippers may each be referred to as a "Party" or collectively as "the Parties" throughout this Agreement. RECITALS A. In connection with Clippers' Jr. Clippers Program (the "Program"), City desires to purchase certain promotional products from Clippers and retain Clippers to provide two basketball clinics on behalf of City's Parks, Recreation and Community Services Agency for local children. B. Clippers represent that Clippers are able and willing to provide such Program services to City. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the Parties agree as follows: 1. SCOPE OF SERVICES Clippers shall perform the following Services (as defined herein) for City: a. Conduct at least one (1) Program basketball clinic (each a "Clinic") per calendar year during the Term (as defined below); and b. Provide to City up to five hundred (500) "Jr. Clippers Standard Packages" each calendar year during the Term, as outlined in the attached Exhibit A to this Agreement (each a "Package" and together with the Clinics, the "Services"). The Services pursuant to this Agreement will be governed by the terms and conditions set forth in this Agreement. For the avoidance of doubt, Exhibit A attached hereto is incorporated into this Agreement by reference, and have the same force and effect as the sections in the body of this Agreement. By executing this Agreement, the Parties agree to all provisions set forth in the attached exhibits as if the Parties has affixed their respective signatures thereto. 2. LA CLIPPERS CLINIC The Parties agree to conduct the first Clinic (the "First Clinic") on Sunday, February 9, 2020 between 9 a.m. and 11 a.m., or on any other date and/or at any other time within the calendar year 2020 that the Parties mutually agree upon in writing. The location of the First Clinic will be Godinez High School gym located at 3002 West Centennial Road in Santa Ana, California. The Page 1 of 10 second Clinic (the "Second Clinic") will occur in the calendar year 2021. duriarg the Teriu on a date and at a time and location mutually agreed upon in writing by the Parties, provided that Clippers shall only be obligated to provide the Second Clinic if City purchases Packages for calendar year 2021 in an amount to be mutually determined by the Parties. a. Clippers Clinic Obligations, Clippers agree to provide coaching staff, one ('1) Clippers alumni player, and the equipmcnt necessary to conduct each Clinic for up to one hundred (100) youths. b, City (,,line Obligations, City agrees to coordinate and provide all advertising (including Copy (as defined below)) and promotion of each Clinic, at all times subject to Section S herein, 3. NBA RULES This Agreement and all ofCity's tights hereunder are subject to the Constitution, By -Laws and all other riles, regulations, and agreements of the NBA and its affiliate entities, as they presently exist or as they may, from time to time, be entered into, amended, or adopted (collectively "NBA Rules"). The MBA Rules shall control in the event of any conflict between this Agreement and the NBA Rules. 4. CLIPPERS MARKS NBA Properties, Inc., in conjunction with its wholly owned subsidiary NBA Entertainment, Inc., has the exclusive worldwide right to license for commercial purposes the use of the names, logos, trademarks, service marks, and other identifications of the Clippers and the Program (collectively the "Clippers Marks"), and City agrees that it shall not use the Clippers Marks without the prior written consent of the Clippers and the NBA. City acknowledges that the Clippers Marks are of highest quality, and that any permitted use by City of the Clippers Marks shall be strictly in accordance with the quality control and other standards established by Clippers and the NBA, In the event that City obtains the prior written consent of the Clippers and the NBA for the use of the Clippers Marks for the sole purpose of integration into the Copy, City is hereby granted a non-exclusive, revocable license for the use of the Clippers Marks ("License"). The License shall be strictly limited to: (a) the use described in the written prior consent; (b) the shorter of the Term of this Agreement or the term specified in the consent; and (c) the geographic location specified in the consent, which under no circumstances shall exceed the Clippers' "Territory" as that term is utilized in the then current NBA Rules, 5. APPROVALS All marketing materials, advertisements, scripts, and other artwork and text prepared by the City for the promotion of the Clinic(s) as contemplated in this Agreement ("Copy") shall be subject to the approval of the Clippers and/or the NBA. City acknowledges that the Clippers and the NBA have broad discretion to refuse approval of any Copy deemed, in their sole discretion, to conflict with the desired image of the Clippers and the NBA. Page 2 of 10 6. COMPENSATION a. City agrees to pay, and Clippers agree to accept as total payment for the Services, the rates and charges identified in Exhibit A and incorporated by reference to this Agreement. The total sum authorized under this Agreement shall not exceed $20,000.00 for the Term of the Agreement. b. Payment by City shall be made within forty-five (45) days following Clippers' receipt of proper invoice. All payments shall be delivered to Clippers on or before the due date, and Clippers may (in addition to all other remedies) withhold Services provided for in this Agreement at any time that any payment is past due. TERM This Agreement shall commence on the date first written above and terminate on September 30, 2021 unless terminated earlier in accordance with Section 18 below ("Tenn") 8. INDEPENDENT CONTRACTOR Clippers shall, during the entire Tenn of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-ernployee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Clippers perform the Services which are the subject matter of this Agreement; however, the Services to be provided by Clippers shall be provided in a manner consistent with all applicable standards and regulations governing such Services. Clippers shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to Clippers' employees and shall be responsible for all applicable withholding taxes. 9. INSURANCE Prior to undertaking performance of Services under ttris Agreement, Clippers shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Clippers shall maintain commercial general liability insurance naming the City, its officers, employees, agents, and representatives as additional insured(s) and shall include, but is not limited to protection against claims arising from bodily and personal injury, including Heath resulting therefrom and damage to property, resulting from any act or occurrence arising out of Clippers' operations in the performance of this Agreement. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, inchiding death resulting therefrom, and property damage with no exclusion for sexual molestation, in the total amount of Page 3 of 10 $1,000,000 per occurrence with coverage up to $5 million per occurrence through an umbrella policy, Such insurance shall (a) name the CITY, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (e) contain standard separation of insureds provisions. b. Worker's Compensation Insurance. In accordance with the California Labor Code, Clippers are required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the Services under this Agreement, Clippers agree to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. C. The following requirements apply to the insurance to be provided by Clippers pursuant to this Section: (i) Clippers shall maintain all insurance required above in full force and effect for the Terris. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage by Clippers without thirty (30) days' prior written notice to the City. (iv) Clippers shall supply City with a fully executed additional insured endorsement. d. If Clippers fail or refuse to produce or maintain the insurance required by this Section or fail or refuse to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Clippers' right to be paid for its time and materials expended prior to notification of termination. 10. REPRESENTATIONS & WARRANTIES Each Party hereto represents and warrants to the other Party that: (a) it has the power and authority to execute, deliver and perform this Agreement in accordance with its terns; (b) the consummation of the transactions contemplated herein have been duly authorized by all requisite corporate action on the part of each Party hereto and does not and will not violate any provision of law or constitute a default under any agreement or other instrument by which such Party is bound; and (c) this Agreement, when executed by the undersigned on behalf of the respective Parties, shall constitute valid and legally binding obligation of the Parties, enforceable in accordance with its terms. Page 4 of 10 11. INDEMNIFICATION Each Party ("Indemnifying Party") shall indemnify, defend, and ]told harmless the other Party and its respective affiliates, in the case of the Clippers to include the NBA and its Member Teams, NBAP, their respective affiliates, and their respective members, owners, governors, directors, officers, managers, employees, licensees, contractors, agents, representatives, successors and assigns ("Clippers Parties"), and in the case of the City to include its officers, agents, employees, consultants, special counsel, and representatives ("City Parties") from and against any and all losses, damages, claims (actual or alleged), actions, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) ("Claims") arising from (in whole or in part) or in connection with: (a) the Indemnifying Party's negligent acts or omissions, or intentional misconduct in the course of its performance under this Agreement; and/or (b) the Indemmifying Patty's breach or alleged breach of this Agreement. Further, City shall indemnify, defend, and hold harmless the Clippers Parties from and against any and all Claims arising from (in whole or in part) or in connection with third party claims: (i) resulting from any personal injuries sustained by youth participant(s) in either of the Clinics, except to the extent that such Claim(s) is based upon the grossly negligent acts or omissions, or intentional misconduct of the Clippers in the course of their performance under this Agreement; and (ii) alleging that the use of the Copy, as contemplated in Section 2 of this Agreement, as provided by City to the Clippers, infringes upon the intellectual property tights of any such third party, except to the extent that such Claim(s) is based upon any Clippers Marks furnished by the Clippers to the City and properly incorporated into the Copy in question. 12. BACKGROUND CHECK REQUIRED Clippers represent and warrant that all Clippers employees, consultants, contractors, agents, and/or volunteers conducting the Clinic(s) pursuant to this Agreement have been screened in accordance with Clippers' hiring process, which includes a criminal background check. 13. CONFIDENTIALITY If either Party ("non -disclosing Party") receives from the other Party ("disclosing Party") infor-tnation which due to the nature of such information is reasonably understood to be confidential and/or proprietary ("Confidential Information"), non -disclosing Party agrees that it shall not use or disclose such information except in its performance of its obligations under this Agreement, and father agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential Information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential Information disclosed to either Party by any subsidiary and/or agent of the other Party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the non -disclosing Party disclosed in a publicly available source; (c) is in Page 5 of 10 rightful possession of the non -disclosing Party without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the non - disclosing Party without reference to information disclosed by the disclosing Party. 14. CONFLICT OF INTEREST CLAUSE Each Party covenants that it presently has no interests and shill not have interests, direct or indirect, which would conflict in any manner with performance of Services specified under this Agreement. 15. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714- 647-6956 With courtesy copies to: Executive Director of Parks, Recreation & Community Services Agency 20 Civic Center Plaza (M-34) P.O. Box 1988 Santa Ana, California 90702 Fax 714-647- City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax 714-647-6515 To Clippers: LA Clippers LLC 1212 South Flower Street, 5th Floor Los Angeles, CA 90015 Attn: Evan Unrau E-mail: eunrau@clippers. con Page 6 of 10 With copy to: LA Clippers LLC 1212 South Flower Street, 5th Floor Los Angeles, CA 90015 Attn: Nicole Duckett E-mail: nduelett@clippers.com clippers.com A Party may change its address by giving notice in writing to the other Party, Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax or email, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on (i) the transmission report issued by the transmitting facsimile machine, if by fax, or (ii) the email, if by email, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 16. ENTIRE AGREEMENT AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Clippers regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the Parties. In the event of a conflict between the terns of this Agreement and any attaclunents hereto, the terns of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Clippers. The Parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terns and conditions hereof, shall not bind or obligate Clippers or the City. Each Party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein. 17. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Clippers, Clippers may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Notwithstanding the foregoing, Clippers shall have the tight at its sole discretion to assign this Agreement to any person or entity to which Clippers shall transfer or assign the Clippers' NBA franchise without such consent, Such assignment by the Clippers shall relieve the Clippers of the rights and obligations hereunder, which rights and obligations shall become the sole responsibility of the buyer, transferee, or assignee. 18. TERMINATION This Agreement may be terminated by either Party upon thirty (30) days' written notice of termination to the other Party. In such event, Clippers shall be entitled to receive and the City shall pay Clippers compensation for all Services performed by Clippers prior to receipt of such notice of termination by the non -terminating Party. Page 7 of 10 19. NON-DISCRIMINATION Clippers shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Clippers affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 20. JURISDICTION -VENUE' This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both Parties further agree that the federal and state courts located in Los Angeles, California shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 21. PROFESSIONAL LICENSES Clippers shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the Services hereunder and required by the laws slid regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Clippers shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 22. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind its respective Party to each of the terms of this Agreement. b. All Exhibits referenced herein and attached hereto shall be incorporated as if filly set forth in the body of this Agreement. Page 8of10 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the date and year first above written. CITY OF SANTA ANA a KRISTINE RIDG City Manager ATTEST: (ZE;� ` DAISY GOMEZ t Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: �'Wo" X - `KIN 4rvLti Laura A. Rossini Senior Assistant City Attorney LA CLIPPERS LLC /44/44z' ame Tile V/cc /X.QA � HelAW XFra4eea' RECOMMENDED FOR APPROVAL: LISA RUDLOFF Executive Director of Parks, Recreation & Community Services Agency Page 9 of 10 EXHIBIT A CLIPPERS PACKAGES Page 10 of 10 EXHIBIT • Jr. Clippers full micro -fiber CUSTOM uniform, Including reversible jersey and matching shorts. I ABAPPEA& (Uniforms are available in eight color palettes and will include organizational logos) • Clippers Clinic featuring L.A. Clippers Alumni player. ' ;'°�, '•+t r �'.�� '+� ,m, (location, date and time agreed on by both parties, minimum 3 weeks advance scheduling) • Sportsmanship Program: Ability to nominate a player and coach for our annual Sportsmanship Award. - Ae • $50 off LA. Clippers Youth Summer Camps. • Access to annual Positive Coaches Alliance Coaches Clinic. • (1) One Autographed merchandise item with proceeds going towards your scholarship fund. • Jr. Clippers Proud Partner Iinkand banner. I� • Jr. Clippers full micro -fiber uniform, including reversible jersey and matching shorts. LA CAPPEAC ^--- (Uniforms are available in eight color palettes) • Clippers Clinic featuring L.A. Clippers Alumni player. (location, date and time agreed on by both parties, minimum 3 weeks advance scheduling) n v m • Sportsmanship Program: Ability to nominate a player and coach for our annual Sportsmanship Award. - • $25 off LA. Clippers Youth Summer Camps. • Access to annual Positive Coaches Alliance Coaches Clinic. v a •, • Jr. Clippers dri-fit moisture wicking shooting shirt. (Shirts to include organizational logo and tACiiPPEPS ••— nW. are available in 16 color palettes) • Sportsmanship Program: Ability to nominate a player and coach for our annual Sportsmanship Award. • $15 off L.A. Clippers Youth Summer Camps.- • Access to annual Positive Coaches Alliance Coaches Clinic. o� °�;t� ,Q • G iz *ALL JR. CLIPPERS PARTICIPANTS MUST COMPLETE AN L.A. CLIPPERS WAIVER.