adopt a park squibb

7/28/2019 Adopt a Park Squibb

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ADOPT A PARK AGREEMENT

BETWEEN THE NEW YORK CITY DEPARTMENT OF PARKS & RECREATION

AND

OPEN ROAD OF NEW YORK

THIS SPONSORSHIP AGREEMENT (Agreement) is entered into as of the 15thday of October, 2009 by and between the New York City Department of Parks & Recreation(Parks) with offices located at 830 5

th Avenue, New York, NY 10065, and Open Road ofNew York(Sponsor) with offices located at 346 East 9th Street, 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 CityCharter, is charged with the duty to manage and care for all sites under the jurisdiction ofParks, and has the duty to plan, develop, conduct and enter into arrangements, with public orprivate organizations, for the beneficial use of the people of the City of New York;

WHEREAS, the Commissioner, pursuant to Section 18-133 of the AdministrativeCode of the City of New York, is authorized to make agreements with individuals or groupswho wish to sponsor a park, playground, ball field, or other park space or facility bydonating a specific amount of money or labor (Adopt A Park Program);

WHEREAS, Sponsor wishes to participate in Parks Adopt A Park Program and

provide financial assistance to the playground known as Squibb Park located at Middaghand Cranberry Streets, in Kings County, State of New York, which is identified as Parksproperty #Brooklyn 223F (the Property);

WHEREAS, Parks desires to designate Sponsor as a partner in providing resourcesfor the enhancement of the Property as hereinafter set forth.

NOW THEREFORE, in consideration of the premises and the mutual covenantsand agreements contained herein, the parties hereto do hereby agree as follows:

1. Definitions. Terms which are capitalized in this Agreement are defined as set forthherein, or as follows:

a) Parks Trademarks mean the trademark New York City Department ofParks & Recreation, and any other mark, design or symbol now or hereafter owned by theCity of New York (the City).


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b) "Sponsor Sign" means any green Parks sign measuring twenty-four inches byeighteen inches (24" x 18") indicating that the enhancement and beautification of theProperty was made possible by Sponsor; provided, however, that such sign does not, in theCommissioners discretion, disrupt the aesthetic quality of the Property. The lettering shallbe in the color white.

c) Sponsor Trademark means the trademarks Open Road of New York,which is licensed to Open Road of New York.

2. Term. This Agreement shall take effect on October 15th, 2009 and expire on October15th, 2010 (the "Term").

3. Obligations of Sponsor.

a) Sponsor shall donate Fifty Thousand Dollars ($50,000) worth of skateequipment for the Property.

b) Any increase in Sponsors financial commitment to the Property shall beupon the written agreement of both Sponsor and Parks and upon the same terms andconditions herein; provided, however, that Sponsor shall have no obligation to increase itsfinancial commitment.

c) Sponsor grants Parks permission to use the Trademark Open Road of NewYork during the Term solely for purposes of the Sponsor Sign. All use of the SponsorTrademark shall conform to any reasonable guidelines Sponsor may provide to Parks

regarding usage and appearance. Parks shall not use any trademarks owned by Sponsorother than the Sponsor Trademark, except with Sponsors prior written consent. TheSponsor Trademark shall not be used reproduced or replicated without Sponsors prior

written consent (except for the Sponsor Sign), and neither Parks nor any other person orentity shall have or be deemed to have acquired any ownership or other rights or interestswith respect to the Sponsor Trademark.

4. Obligations of Parks.

a) Parks shall provide one (1) Sponsor Sign to be located at a prime and highly

visible location on entrance to the Property subject to the approval of Sponsor, which shallnot be unreasonably withheld. Parks shall ensure that the Sponsor Sign is maintained andrepaired (if necessary) during the Term. Parks shall not place or allow any otherSponsorship Sign to be placed at the Property during the term.

b) Parks grants Sponsor a limited, non-exclusive, royalty-free license to useParks Trademarks during the Term to advertise, publicly represent and otherwise promoteSponsor's sponsorship status regarding the Property, and for such other uses as Parks mayreasonably approve in writing. The usage of Parks Trademarks shall conform to any


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reasonable guidelines Parks may provide to Sponsor regarding usage and appearance, and issubject to Parks prior written approval.

5. Relationship of Parties.

a) The relationship between Parks and Sponsor as established by thisAgreement, is that of independent contractors, and nothing contained in this Agreementshall be construed to (i) give either party the power to direct and control the day-to-dayactivities of the other party, or (ii) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking. Neither party nor itsagents or employees is the representative of the other party for any purpose except asexpressly set forth in this Agreement, and has no power or authority as agent, employee orin any other capacity to represent, act for, bind, or otherwise create or assume an obligationon behalf of the other party for any purpose whatsoever.

b) Nothing herein shall be construed to mean that the Property or any structuretherein has been renamed for Sponsor or gives Sponsor or an agent or member thereof anyauthority to sell or display merchandise or use the Property in any manner inconsistent withthe New York City Charter or any statute, law, rule or regulation. Moreover, nothing hereinshall impede or impair in any way any concession, license, or other agreement betweenParks and any other individual or entity.

c) It is expressly understood and agreed that neither the Property as a whole norany part thereof is leased to Sponsor, but rather this Agreement allows Sponsor tofinancially support the Property or any other Parks property located in the borough of

Manhattan.

d) The Commissioner may terminate this Agreement upon one (1) day's noticeif the Commissioner deems termination to be in the best interest of the City. Should Parkscancel this Agreement prior to the natural conclusion of the Term, Parks shall promptlyreturn to Sponsor any unspent funds from the contribution provided for in Section 3(a);provided, however, that Sponsor has fully complied with all terms of the Agreement.

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

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

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 performits obligations under this Agreement;


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d) it is free of any contractual obligation that would prevent it from enteringinto or performing its obligations under this Agreement; and

e) the execution, delivery and performance of this Agreement by it has beenduly authorized by all necessary corporate action..

7. Indemnification. Sponsor agrees to indemnify, hold harmless, and defend Parksfrom any and all liability, loss, cost, expense, damage and attorneys fees resulting from this

sponsorship, including without limitation any claim arising out of or relating to an allegationthat the Sponsor Trademark infringes, dilutes, or misappropriates any trademark, servicemark, trade dress, copyright, or other intellectual property or proprietary rights of a thirdparty, and Sponsor shall indemnify the City in the event that any judgment or other financialobligation is imposed upon the City with respect to this Agreement. However, thisprovision does not require Sponsor to indemnify Parks for any negligence or willfulmisconduct arising out of the acts or omissions of Parks, its staff members, employees,

agents, and representatives in connection with Parks maintenance of the Property, or itsbreach of this Agreement.

8. Choice of Law, Consent to Jurisdiction, and Venue.

a) This Agreement shall be deemed to be executed in the City of New York,State of New York, regardless of the domicile of Sponsor and shall be governed by andconstrued in accordance with the laws of the State of New York. Any and all claimsasserted by or against Parks and the City arising under this Agreement or related theretoshall be heard and determined either in the courts of the United States (Federal Courts)

located in New York City or in the courts of the State of New York (New York StateCourts) located in the City and County of New York.

b) If Parks and the City initiates any action arising out of this Agreementagainst Sponsor in Federal Court or in New York State Court, service of process may bemade on Sponsor either in person, wherever Sponsor may be found, or by registered mailaddressed to Sponsor as its address is set forth in this Agreement, or to such other address asSponsor may provide to Parks and the City in writing; and

c) With respect to any action arising out of this Agreement between Parks andthe City and Sponsor in New York State Court, Sponsor expressly waives and relinquishes

any rights they might otherwise have (i) to move to dismiss on grounds of forum nonconveniens, (ii) to remove to Federal Court; and (iii) to move for change of venue to a NewYork State Court outside New York County.

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


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e) If Sponsor commences any action arising out of this Agreement against Parksand the City in a court located other than in the City and State of New York, upon request ofParks and the City, Sponsor shall consent to a transfer of the action to a court of competentjurisdiction located in the City and State of New York, or if the court where the action isinitially brought will not or cannot transfer the action, Sponsor shall consent to dismiss such

action without prejudice and may thereafter reinstitute the action in a court of competentjurisdiction in New York 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 compelthe attendance and to examine witnesses under oath or conducted by the Inspector Generalof a governmental agency that is a party in interest to the transaction, submitted bid,

submitted proposal, contract, lease, permit, or license that is the subject of the investigation,audit or inquiry.

b) i) If any person who has been advised that his or her statement and anyinformation from such statement will not be used against him or her in any subsequentcriminal proceeding refuses to testify before a grand jury or other governmental agency orauthority empowered directly or by designation to compel the attendance of witnesses andto examine witnesses under oath concerning the award of or performance under anytransaction, agreement, lease, permit, contract or license entered into with City, State or anypolitical subdivision or public authority thereof, or the Port Authority of New York andNew Jersey, or any local development corporation within City, or any public benefit

corporation organized under the laws of the State of New York; or

ii) If any person refuses to testify for a reason other than the assertion ofhis or her privilege against self incrimination in an investigation, audit or inquiry conductedby a City or State governmental agency or authority empowered directly or by designationto compel the attendance of witnesses and to take testimony under oath, or by the InspectorGeneral of the governmental agency that is a party in interest and is seeking testimonyconcerning the award of or performance under any transaction, agreement, lease, permit,contract or license entered into with City, State or any political subdivision thereof or anylocal development corporation within the City; then

c) i) The commissioner or agency head whose agency is a party in interestto the 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 anadjournment, the commissioner or agency head who convened the hearing may, upongranting the adjournment, suspend any contract, lease, permit or license pending the final


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determination pursuant to sub-section (e) below without the City incurring any penalty ordamage for delay or otherwise.

d) The penalties which may attach after a final determination by thecommissioner or agency head may include, but not exceed:

i) The disqualification for a period not to exceed five (5) years from thedate of an adverse determination for any person or entity of which such person was amember at the time the testimony was sought from submitting bids for, transacting businesswith or entering into or obtaining any contract, lease, permit or license with or from City;and/or

ii) The cancellation or termination of any and all such existing Citycontracts, leases, permits or licenses that the refusal to testify concerns and that have notbeen assigned as permitted under this Agreement, nor the proceeds of which pledged, to an

unaffiliated and unrelated institutional lender for fair value prior to the issuance of the noticescheduling the hearing, without the City incurring any penalty or damages on account ofsuch cancellation or termination; monies lawfully due for goods delivered, work done,rentals, or fees accrued prior to the cancellation or termination shall be paid by City.

e) The commissioner or agency head shall consider and address in reaching hisor her determination and in assessing an appropriate penalty the factors in Sections 9(e)(i)and 9(e)(ii) below. He or she may also consider, if relevant and appropriate, the criteriaestablished in Section 9(e)(iii) and 9(e)(iv) below in addition to any other information whichmay be relevant and appropriate:

i) The partys good faith endeavors or lack thereof to cooperate fullyand faithfully with any governmental investigation or audit including, but not limited to, thediscipline, discharge or disassociation of any person failing to testify, the production ofaccurate and complete books and records and the forthcoming testimony of all othermembers, agents, assignees or fiduciaries whose testimony is sought.

ii) The relationship of the person who refused to testify to any entity thatis a party to the hearing, including, but not limited to, whether the person whose testimonyis sought has an ownership interest in the entity and/or the degree of authority andresponsibility the person has within the entity.

iii) The nexus of the testimony sought to subject entity and its contracts,leases, permits or licenses with City.

iv) The effect a penalty may have on an unaffiliated and unrelated partyor entity that has a significant interest in an entity subject to penalties under Section 9(d)above, provided that the party or entity has given actual notice to the commissioner oragency head upon the acquisition of the interest, or at the hearing called for in Section9(c)(i) above gives notice and proves that such interest was previously acquired. Undereither circumstance the party or entity must present evidence at the hearing demonstratingthe potential adverse impact a penalty will have on such person or entity.


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f) i) The term license or permit as used herein shall be defined as alicense, permit, franchise or concession not granted as a matter of right.

ii) The term person as used herein shall be defined as a natural person

doing business alone or associated with another person or entity as a partner, director,officer, principal or employee.

iii) The term entity as used herein shall be defined as any firm,partnership, corporation, association or person that receives monies, benefits, licenses,leases or permits from or through City or otherwise transacts business with the City.

iv) The term member as used herein shall be defined as any 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 the

commissioner or agency head may in his or her sole discretion, terminate this Agreementupon not less than three (3) days written notice in the event Sponsor fails to promptly reportin writing to the Commissioner of Investigation of the City of New York any solicitation ofmoney, goods, requests for future employment or other benefit or thing of value, by or onbehalf of any employee of the City or other person, firm, corporation or entity for anypurpose which may be related to the procurement or obtaining of this Agreement bySponsor, or affecting the performance of this Agreement.

10. Miscellaneous

a) Notices. Every notice required or contemplated by this Agreement shall bein writing. Notices shall be deemed received when sent by confirmed facsimile or two (2)business days after deposit with a commercial express courier. All notices will be sent tothe address for each party as set forth in the first paragraph of this Agreement (to theGeneral Counsel at The Arsenal for Parks), or such other address as may be designated bywritten 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 between

Sponsor and Parks with respect to the subject matter of this Agreement, superseding alldrafts, all prior or contemporaneous agreements or oral negotiations, and all promises,understandings or representations, whether written or oral.

d) Waiver. The non-enforcement of any provision of this Agreement, or failureto insist on strict compliance with any of the terms, covenants or conditions hereof, shall notbe deemed a waiver of any right granted under this Agreement; nor shall any waiver of anyright granted hereunder on one occasion be deemed a waiver at any other time.


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e) Severability. In the event that any clause of this Agreement is found by acourt validly asserting jurisdiction to be unenforceable, that clause will be considered voidto the extent it is contrary to the applicable law, but such a finding shall not affect thevalidity of any other clause of the Agreement, and the rest of the Agreement shall remain infull force and effect.

f) Execution by Counterparts. This Agreement may be executed by facsimileand in one or more counterparts, each of which shall be deemed an original and all of whichshall constitute one and the same Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dayfirst written above.

NYC DEPT OF PARKS & RECREATION OPEN ROAD OF NEW YORK,

INC.

By: ________________________________ By: ____________________________

Name: _____________________________ Name: __Paula Hewitt_____________

Title: _____________________________ Title: ___Executive Director _______

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