adopt a park manhattan bridge skatepark

7/28/2019 Adopt a Park Manhattan Bridge Skatepark

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ADOPT A PARK AGREEMENT

BETWEEN THE NEW YORK CITY DEPARTMENT OF PARKS & RECREATION

AND

OPEN ROAD OF NEW YORK (on behalf of the TONY HAWK FOUNDATION)

THIS SPONSORSHIP AGREEMENT (Agreement) is entered into as of the 23 rd dayof 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 NewYork (on behalf of the Tony Hawk Foundation) (Sponsor) with offices located at 346 East 9thStreet, NY, NY, 10003.

WHEREAS, pursuant to Section 531 of the New York City Charter, Parks wasestablished, 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 hasthe duty to plan, develop, conduct and enter into arrangements, with public or privateorganizations, for the beneficial use of the people of the City of New York;

WHEREAS, the Commissioner, pursuant to Section 18-133 of the Administrative Codeof the City of New York, is authorized to make agreements with individuals or groups who wishto sponsor a park, playground, ball field, or other park space or facility by donating a specificamount of money or labor (Adopt A Park Program);

WHEREAS, Sponsor wishes to participate in Parks Adopt A Park Program and providefinancial 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 forthe enhancement of the Property as hereinafter set forth.

NOW THEREFORE, in consideration of the premises and the mutual covenants andagreements 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 NewYork (the City).

b) "Sponsor Sign" means any green Parks sign measuring twenty-four inches by eighteen inches (2418") indicating that the enhancement and beautification of the Property was made possible by Sponsor;


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provided, however, that such sign does not, in the Commissioners discretion, disrupt the aesthetic qualitthe Property. The lettering shall be in the color white.

c) Sponsor Trademark means the trademarks Tony Hawk Foundation, which islicensed 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 September29, 2009 (the "Term").

3. Obligations of Sponsor.

a) Sponsor shall contribute Fifty-One Thousand Dollars ($51,000) to improve theProperty.

i. Sponsor shall enter into an agreement with the contractor for $51,000 thatmeets 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 toParks. Moreover, no work shall be performed by the Sponsors contractor at the Property priorto receiving a construction permit from Parks Capital Projects Division.

ii. Any remaining funds shall be used to purchase skate elements to installat the Property.

b) Any increase in Sponsors financial commitment to the Property shall be upon thewritten 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 Yorkor Tony Hawk Foundation during the Term solely for purposes of the Sponsor Sign. All use ofthe Sponsor Trademark shall conform to any reasonable guidelines Sponsor may provide toParks regarding usage and appearance. Parks shall not use any trademarks owned by Sponsorother than the Sponsor Trademark, except with Sponsors prior written consent. The SponsorTrademark shall not be used reproduced or replicated without Sponsors prior written consent(except for the Sponsor Sign), and neither Parks nor any other person or entity shall have or bedeemed to have acquired any ownership or other rights or interests with respect to the SponsorTrademark.

4. Obligations of Parks.4

a) Parks shall provide one (1) Sponsor Sign to be located at a prime and highlyvisible location on the Eighth Avenue entrance to the Property subject to the approval ofSponsor, which shall not be unreasonably withheld. Parks shall ensure that the Sponsor Sign ismaintained and repaired (if necessary) during the Term. Parks shall not place or allow any otherSponsorship Sign to be placed at the Property during the term.


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b) Parks grants Sponsor a limited, non-exclusive, royalty-free license to use ParksTrademarks during the Term to advertise, publicly represent and otherwise promote Sponsor'ssponsorship status regarding the Property, and for such other uses as Parks may reasonablyapprove in writing. The usage of Parks Trademarks shall conform to any reasonable guidelinesParks 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, isthat 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 jointor common undertaking. Neither party nor its agents or employees is the representative of theother party for any purpose except as expressly set forth in this Agreement, and has no power orauthority 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 hasbeen renamed for Sponsor or gives Sponsor or an agent or member thereof any authority to sellor display merchandise or use the Property in any manner inconsistent with the New York CityCharter or any statute, law, rule or regulation. Moreover, nothing herein shall impede or impairin any way any concession, license, or other agreement between Parks and any other individualor entity.

c) It is expressly understood and agreed that neither the Property as a whole nor anypart thereof is leased to Sponsor, but rather this Agreement allows Sponsor to financially supportthe 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 theCommissioner deems termination to be in the best interest of the City. Should Parks cancel thisAgreement prior to the natural conclusion of the Term, Parks shall promptly return to Sponsorany unspent funds from the contribution provided for in Section 3(a); provided, however, thatSponsor has fully complied with all terms of the Agreement.

6. Representations and Warranties . Sponsor and Parks each hereby represents, warrants andcovenants to the other the following:

a) it possesses the full right, power and authority to enter into and fully perform thisAgreement;

b) 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 itsobligations under this Agreement;


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d) it is free of any contractual obligation that would prevent it from entering into orperforming 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 anyand 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 SponsorTrademark infringes, dilutes, or misappropriates any trademark, service mark, trade dress,copyright, or other intellectual property or proprietary rights of a third party, and Sponsor shallindemnify the City in the event that any judgment or other financial obligation is imposed uponthe City with respect to this Agreement. However, this provision does not require Sponsor toindemnify 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 Parksmaintenance 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 ofNew York, regardless of the domicile of Sponsor and shall be governed by and construed inaccordance with the laws of the State of New York. Any and all claims asserted by or againstParks and the City arising under this Agreement or related thereto shall be heard and determinedeither in the courts of the United States (Federal Courts) located in New York City or in thecourts of the State of New York (New York State Courts) located in the City and County ofNew York.

b) If Parks and the City initiates any action arising out of this Agreement againstSponsor in Federal Court or in New York State Court, service of process may be made onSponsor either in person, wherever Sponsor may be found, or by registered mail addressed toSponsor as its address is set forth in this Agreement, or to such other address as Sponsor mayprovide to Parks and the City in writing; and

c) With respect to any action arising out of this Agreement between Parks and theCity and Sponsor in New York State Court, Sponsor expressly waives and relinquishes anyrights 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 Courtoutside New York County.

d) With respect to any action arising out of this Agreement between Parks and theCity and Sponsor in Federal Court located in New York City, Sponsor expressly waives andrelinquishes any right it might otherwise have to move to transfer the action to a United StatesCourt outside the City of New York.


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e) If Sponsor commences any action arising out of this Agreement against Parks andthe City in a court located other than in the City and State of New York, upon request of Parksand the City, Sponsor shall consent to a transfer of the action to a court of competent jurisdictionlocated in the City and State of New York, or if the court where the action is initially broughtwill 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 NewYork City.

9. Investigations.

a) The parties to this Agreement shall cooperate fully and faithfully with anyinvestigation, audit or inquiry conducted by a State of New York or City of New Yorkgovernmental agency or authority that is empowered directly or by designation to compel theattendance and to examine witnesses under oath or conducted by the Inspector General of agovernmental agency that is a party in interest to the transaction, submitted bid, submittedproposal, 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 anyinformation from such statement will not be used against him or her in any subsequent criminalproceeding refuses to testify before a grand jury or other governmental agency or authorityempowered directly or by designation to compel the attendance of witnesses and to examinewitnesses 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 orpublic authority thereof, or the Port Authority of New York and New Jersey, or any localdevelopment corporation within City, or any public benefit corporation organized under the lawsof the State of New York; or

ii) If any person refuses to testify for a reason other than the assertion of hisor her privilege against self incrimination in an investigation, audit or inquiry conducted by aCity or State governmental agency or authority empowered directly or by designation to compelthe attendance of witnesses and to take testimony under oath, or by the Inspector General of thegovernmental agency that is a party in interest and is seeking testimony concerning the award ofor performance under any transaction, agreement, lease, permit, contract or license entered intowith City, State or any political subdivision thereof or any local development corporation withinthe City; then

c) i) The commissioner or agency head whose agency is a party in interest tothe transaction, submitted bid, submitted proposal, contract, lease, permit or license shallconvene a hearing, upon not less than five (5) days written notice to the parties involved todetermine 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, thecommissioner 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 sub-section (e) below without the City incurring any penalty or damage for delay or otherwise.


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d) The penalties which may attach after a final determination by the commissioner oragency head may include, but not exceed:

i) The disqualification for a period not to exceed five (5) years from the dateof 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 enteringinto 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 aspermitted under this Agreement, nor the proceeds of which pledged, to an unaffiliated andunrelated institutional lender for fair value prior to the issuance of the notice scheduling thehearing, without the City incurring any penalty or damages on account of such cancellation ortermination; monies lawfully due for goods delivered, work done, rentals, or fees accrued priorto the cancellation or termination shall be paid by City.

e) The commissioner or agency head shall consider and address in reaching his orher 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 inSection 9(e)(iii) and 9(e)(iv) below in addition to any other information which may be relevantand appropriate:

i) The partys good faith endeavors or lack thereof to cooperate fully andfaithfully with any governmental investigation or audit including, but not limited to, thediscipline, discharge or disassociation of any person failing to testify, the production of accurateand 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 aparty to the hearing, including, but not limited to, whether the person whose testimony is soughthas an ownership interest in the entity and/or the degree of authority and responsibility theperson 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 orentity 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 uponthe acquisition of the interest, or at the hearing called for in Section 9(c)(i) above gives noticeand proves that such interest was previously acquired. Under either circumstance the party orentity must present evidence at the hearing demonstrating the potential adverse impact a penaltywill 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.


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ii) The term person as used herein shall be defined as a natural persondoing 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 fromor through City or otherwise transacts business with the City.

iv) The term member as used herein shall be defined as any personassociated 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 thecommissioner or agency head may in his or her sole discretion, terminate this Agreement uponnot less than three (3) days written notice in the event Sponsor fails to promptly report in writingto 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 anyemployee of the City or other person, firm, corporation or entity for any purpose which may berelated to the procurement or obtaining of this Agreement by Sponsor, or affecting theperformance of this Agreement.

10. Miscellaneous

a) Notices. Every notice required or contemplated by this Agreement shall be inwriting. Notices shall be deemed received when sent by confirmed facsimile or two (2) businessdays after deposit with a commercial express courier. All notices will be sent to the address foreach party as set forth in the first paragraph of this Agreement (to the General Counsel at TheArsenal for Parks), or such other address as may be designated by written notice.

b) Modification. This Agreement may be amended or modified only by writteninstrument signed by an authorized representative of both parties.

c) Entire Agreement. This Agreement constitutes the entire agreement betweenSponsor and Parks with respect to the subject matter of this Agreement, superseding all drafts, allprior or contemporaneous agreements or oral negotiations, and all promises, understandings orrepresentations, whether written or oral.

d) Waiver. The non-enforcement of any provision of this Agreement, or failure toinsist on strict compliance with any of the terms, covenants or conditions hereof, shall not bedeemed a waiver of any right granted under this Agreement; nor shall any waiver of any rightgranted 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 courtvalidly asserting jurisdiction to be unenforceable, that clause will be considered void to theextent it is contrary to the applicable law, but such a finding shall not affect the validity of any


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other clause of the Agreement, and the rest of the Agreement shall remain in full force andeffect.

f) Execution by Counterparts. This Agreement may be executed by facsimile and inone 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 firstwritten above.

NYC DEPT OF PARKS & RECREATION OPEN ROAD OF NEW YORK

By: ________________________________ By: ____________________________

Name: _____________________________ Name: Paula Hewitt_______________

Title: _____________________________ Title: Executive Director ___________

adopt a park manhattan bridge skatepark

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