99-73ORIGINAL.
Presented By
Council File # ��'�3
Green Sheet � ����
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
�
Referred to Committee: Date
1 WHEREAS, The City of Saint Pau1, Division o£ Parks and Recreation has hosted the
2 Gus Macker 3-on-3 basketball Tournament in Saint Paul for the past ten (i01 years, and;
3
4 WHEREAS, Gus Macker Enterprises Incorporated is the sole owner of a11 Gus Macker
5 trademarks, and;
6
7 WHEREAS, The Division of Parks and Recreation wished to sign a three-year Agreement
8 with Gus Macker Enterprises Inc. to use said Trademarks and continue having the
9 Tournament in Saint Pau1, and;
10
11 WI3EREAS, in order to enter into such an Agreement, Gus Macker Enterprises Inc.
12 requires that the City indemnifies and holds them harmless, now;
13
14 TfiEREFORE BE IT RESOLVED, that the City Council of the City of Saint Paul directs
15 the appropriate City of£icials to enter into the attached agreement with Gus Macker
16 Enterprises Inc., and
17
18 BE IT FURTHER RESOLVED, that the City Council of the City of Saint Paul agrees to
19 indemni£y and hold harmless Gus Macker Enterprises Inc., its of£icers, directors,
20 employees, agents and representatives from and against any and a11 liabilities, damages,
21 losses, claims, demands or judgements for any actual or alleged personal injuries in
22 connection with the Tournament; or damages to property by any reason of any act of
23 negligence of said City or on account of any act or omission of the City in administering
24 the Tournament and the City of Saint Pau1's liability shall not exceed the limits
25 provided by Minn. Stat. §466.01 et seq.
Recrea�ion
by Division o£ P� and
r
�: — �, �
Adopted by Council: Date '� t� �q�°'
Adoption Certified by Council Secretary
BY� � �
T�
Approved by Ma or: Date: � Z3 1�tQ�f
By:
Form Approved by City Attorney
sy: / .-,
Approv d by Mayo�7� Submission to
Counc� � / ' _ n
���7�"�`°
DEPARTMENT/OFFICE/COUNCIL DATEINITIATED GREEN SHEET NO. 62750
Parks and Recreation 01/5/98 . '3
CONTACT PERSON AND PHONE INITIAL/DATE INITIAL/DqTE
HowardBell 266-6475 I � � DEPARTMENTDIRECTOR 4 CITVCOUNQL
ASSIGN
NUMBER f0 Z CIiV ATTORNEY �J CITY CLERK
M115T BE ON COUNqL AGENDA BY (DATE) ROUTiNG
ORDER BUDGET DIRECTOR FIN. & MGT. SERVICES Dlfl.
3 MAY00. (OR ASSISTANT7 6 Parks & Recreation - 300 CHA
TOTAL ° OF SIGNATURE PAGES � (CpP ALL LOCATIONS FOR SIGNANRE)
ACTION REWESTED:
Signatures of Superintendent of Parks and Recreation, City Attorney and Mayor, and passage of the attached Council
Resolution by the Saint Paul City Council.
RECOMMENDATIONS: Appmve (A) or Fe�e<t (RI PERSONAL SERVICE CONiRACTS MUST ANS4YEft THE FOLLOWING ¢UESTIONS:
_PI.ANNING COMMISSION _CIVIL SERVICE COMMISSION �. Has cMis persoNfirm ever worketl under a wntract for tM1is departmenN
CIB COMMITTEE _ VES NO
P. STAFF 2. Has tMS person/tirm ever been a nty employee>
YES NO
DISTRICT COUNpL
— — 3. Does [his persoNfi�m possess a skill Pot normally possessed by any m�ren[ ciry employee�
SUPPORTS WHICH COVNqL 0&IECTNEP YES NO
Explain all yes answers on separare sheet and attach ro green sheec.
INITIATING PROBLEM, ISSUE, OPPORTUNIN (WM1O, Whaq When, WM1ere, Whyl:
The Division of Parks and Recreation wishes to re-enter into a 3-year agreement with Gus Macker Enterprises Inc. (GME)
GME requires the ho{d harmless provision to enter into an agreement. Tfie Gus Macker TournameM brings nearfy 3,000
players and more than 10,000 spectators into downtown Saint Paul each year.
ADVANTA6ESIF APPROVED�
Recreational opportunity for participants and spectators and revenue for many businesses in the Iowertown area.
DISADVANTAGESIFAPPROVED' ry+ yp1•"�"� ��
��;�� ��°,
rvia ��(� �� t�J9
JA� � � 0999
��r� � � N��
DISADVANSAGESIFNOTAPPROVED: ,,,_... -- -'
Loss of above opportunities.
TOTAL AMOUNT OF TPANSACTION S 2�},OOO.00 �COS REVENUE BUDGETED (CIRCLE ONE) VES NO
FUNDINGSOUHCE Soecial Services Fund AcTIVITYNUMBER 325-23740
--� REC EQ
FINANCIAL INFORMATION: �EXPLAIN)
City pays GME $8,000 annualy for three years. Costs are recovered through corporete sponsorships.
a1 �.!� 1 1 1999
�v�NY
Tournament Services Agreement
(Revrsed 9/98)
new/renew
qq-�3
This Toumament Services Agreement ("Agreement") is made this � day of ll,��/.� 1998
by and between Gus Macker Enterprises, Inc. of Grand Rapids, b� ("Macker") and St. Paul
Parks & Rec. ("Local Organizer").
Recitals
A. Macker is in the business of promoting, organizing, and conducting basketball toumaments;
and
B. Local Organizer desires to hire Macker to promote, organize and conduct a three-on-three
basketball tournament in the city of St. Paul Minnesota (the "Tournament Location")
according to the terms hereinafter set forth.
Term and Promotion Fee
1.1. Term: Local Organizer hereby hires Macker to promote, organize and conduct an
annual three-on-three basketball toumament in the Toumament Location for the period
of three (3) years (the "Term") on or about the following dates: Ausust 21-22. 1999,
August 19-20. 2000, and Auaust 18-19. 2001 (coltectively, the °Tournament Dates").
1.2. Service and Promotion Fee: Local Organizer shail pay Macker, as a promotional fee,
the sum of $24,000 to promote, organize and conduct the Tournaments foc the term of
this Agreement. The promotional fee shall be paid as follows:
$4,000 upon signing this Agreement
$4,000 on or before Aueust 21. 1999
$4,000 on or before Januarv I5. 2000
$4,000 on or before Aueust 19, 2000
$4,000 on or before Januar� 15, 2001
$4,000 on or before Au�ust 18. 2001
2. Macker Responsibilities
2. L General: Macker a�ees to heip promote, organize and conduct a Gus Macker� "3-on-3
Basketball Touma�ent" at the Toumament Location at a specific outdoor site to be
identified to Macker in writing by L,ocai Organizer no later than 120 days prior to each
Tournament Date.
2.2.
22.1.
Pre-Tournament Services: Macker agrees to provide the following services prior to each
Tournament Date.
layout assistance for Pre-Toumament brochures, including the official team application
forms;
q�a - � �
222.
layout assistance for Toumament infonnation provided to participants, including the
newspaper (with Tournament schedule and information), and official Toumament
program (including Tournament rules and regulations);
223. organizational assistance in obtaining a local staff for the Toumament, inctuding a
local organizing committee siructure, local court monitors ("GusBusters"), locai event
volunteers, and local medical personnel;
2.2.4.
2.2.5.
2.2.6.
22.7.
22.8.
2.3.
23.1.
23.2.
2.3.3.
23.4.
23.5.
23.6.
computer breakdown of teams into divisions and assistance in creatin� the Toumament
game schedules;
assistance in budgeting Tournament expenses;
assistance in selecting the Tournament site and drafting the map and the layout of
courts for the specific Toumament site;
provide I,ocal Organizer with Macker's regionai mailing list of past tournament
participants and potential players known to Macker; and
assistance in designing an appropriate system for Tournament sponsor recognition.
Tournament Services: At the Tournament, Macker shall provide a minimum of four (4)
Macker officials, who shall render services on-site relating to the following:
training and supervision of court monitors and officials;
organization and supervision of on-site piayer registration;
supervision and organization of scheduling and brackets;
assistance in rule interpretation and player eligibility;
opening ceremonies (inciuding explanation of rules), and starting games; and
supervision of public address system and "Master of Ceremonies" responsibilities
2.4. Miscellaneous Services: Upon the written request of Locai Organizer, Macker will
provide additional miscellaneous other services at the rate of riventy-five doliars ($25.00)
per man hour. Macker sha11 provide written time records for these miscellaneous services.
2.5
2.5.1
Tournament Supplies:
Unique Items: Macker agrees to provide the Local Organizer with sufficient
information, specifications, or materials necessary for Local Organizer to obtain the
following itemslservices (collecrively the "Unique Items"):
2.5.1.1. complimentary player t-shirts;
o�q.��
2.5.1.2. trophies and awards;
2.5.1.3. printed materials:
2.5.1.3.1. Gusettec9 newspaper;
2.5.1.3.2. enh forms and booklet;
2.5.133. promotional posters;
2.5.13.4. local organizing committee stationery and envelopes;
2.5.1.3.5. player waiver for.ns
2.5.1.4. transportation of equipment; and
2.5.1.5. sponsor banners & signs.
2.52. Unique Items: Macker agrees to provide the following Unique Items at no additional
cost to Local Organizer:
2.5.2.1. duct tape for court boundaries;
2.5.2.2. official programs;
2.5.23. scoresheets;
2.5.2.4. "hospital style" ID Braceleu;
2.5.2.5. portable baskets;
2.5.2.6. basketbalis;
2.5.2.7. computer processing of teams;
2.5.2.8. liability insurance (as more specifically described in Pazagraph 2.6); and
2.5.2.9. semi-trailers necessary for transportation of equipment.
2.5.3. Generic Items: Macker �grees to provide Local Organizer with sufficient information,
specifications, or materials necessary for Local Organizer to obtain the following
items/services (collectively the "Generic Items"):
2.5.3.1. portable restrooms;
2.5.3.2. garbage cans/dumpsters;
�:
�
2.53.3. bleachers;
2.53.4. tables & chairs;
2.5.3.5. tenu;
2.53.6. public address system;
2.53.7. forklift;
2.53.8. security;
2.5.3.9. medical personnel and supplies;
2.53.10. two-way radios.
2.5.4. Procuring Tournament Supplies:
�q_��
2.5.4.1. Ordering: Macker and Local Organizer shall agree in writing as to who will be
responsible for ordering the various Unique Items and Generic Items (collectively
"Toumament Supplies"). Unless othenvise specified, Local Organizer shall be
responsible for ordering the Generic Items. Unless othenvise speciFied, payment
for the Tournament Supplies wilt ultimately be the responsibility of the Local
Organizer, as set forth elsewhere in this Agreement.
2.5.4.2. Suppliers: Local Organizer acknowledges that there are only certain suppliers for
some of the Unique Items, in part because of the stringent specifications for the
Unique Items. Macker wi11 suppty I,ocal Organizer with written specifications for
the Unique Items in order to allow Local Organizer the opportunity to determine if
any locai suppliers are capabie of producing them. In the event that the Local
Organizer finds a supplier that can meet the stringent speciFications of Macker, at
a price lower than obtainable by Macker through Macker's usual suppiiers, Macker
agrees to �easonably consider ailowing Local Organizer to obtain the items in
question from each supplier. In the event that Macker does not approve the
supplier requested by Local Organizer, Local Organizer shali have the option of
ordering the Unique Items Directly from the Supplier that Macker intends to use
were it going to obtain the Unique Items in question. Local Organizer shall be
responsible for ensuring the quality of the Uniq�,�e Items it obtains. In the event
that they are not in compliance with the specifications, then Macker shalt have the
right to order replacements from iu usual suppliers, all at the cost of Local
Organizer.
2.6. Insurance:
2.6.1. Macker shali obtain commercial public liability insurance coverage (Spectator
Liability) for Bodily Injury & Property Damage and Participant Legal Liability
coverage, naming Local Organizer, Gus Macker Enterprises, Inc. and any Local,
National or Regional Sponsors identified by Local Organizer and/or Macker as
additional insureds, in the amount of One Million Dollars ($1,000,000) each � � 7 3
occurrence and annual aggregate for commercial public liability coverage, and Two
Hundred Fifty Thousand doliars ($250,000) per occurrence for Participant Legal
Liability coverage. Macker shall provide Local Organizer with a copy of a policy
conforming to the within conditions no later than fifteen (15) days prior to the
Toumament Date.
2.6.2 Local Organizer agrees that each participant in the Toumament shall acknowiedge in
writing, in a form provided by Macker, that Macker and Local Organizer shall have no
liability for personal injuries which may arise from the entranPs participation in the
Toumament.
Local Organizer Responsibilities
3.1. Spec�c Tournament Site: Local Organizer shall be responsible for selecting a specific
site for each Toumament within the Tournament i,ocation. Local Organizer shall provide
Macker with written notice of the specific site for the Tournament no later than 120 days
prior to each Toumament Date. Locai Organizer agrees to consult Macker regarding the
suitability of the specific site and specific layout (including court placement, tent
placement, etc...) prior to making any public announcement and commitment to sponsor
the Tournament at that site.
3.2. Approvals, Permits and Licenses: Local Organizer shail be responsibie for obtaining all
required governmental approvals, permits and licenses necessary for Macker to conduct the
Toumament, including, without limitation, those approvals necessary to:
3.2.1. operate the outdoor pubiic address system;
3.2.2. divert and block tr�c; and
3.2.3. sell food and souvenirs.
3.3. Tournament Supplies: Local Organizer shall obtain the quantity and quality to
Toumament supplies set forth in the written agreement referenced in paragraph 2.5, above.
3.4. Personnel: Local Organizer shall be responsible for obtaining volunteer personnel to serve
in the following areas of responsibility:
3.4.1. court monitors (GusBusters) and cfficials;
3.42. set-up, take-down, and cleanup;
3.43. on-site player registration;
3.4.4. scheduling/bracket tent;
3.4.5. on-site special events; and QQ'�
3.4.6 medicai care and first aid.
Macker will make recommendations to Local Organizer regarding the number of
volunteers needed, at a time closer to the Toumament Date. If Local Organizer fails to
secure an adequate number of volunteers, Macker shall have the right to hire paid
personnel which Lc^al Organizer shail be responsible to pay.
3.5. Charges, Cost and Fxpenses: Local Organizer shall be responsible for all cost and
expenses, regazdless of how characterized, in wnnection with the Toumament including,
without limitation, the cost of the permits, approvals, and licenses, insurance, Tournament
Supplies, and fees and out of pocket expenses charged by Macker, as more specifically
outlined below.
3.6. National or Regional Sponsor: Local Organizer agrees to comply with any and all
requirements of any National or Regional Sponsor identified by Macker. Macker shall be
responsible to identify any National or Regional Sponsor to the Local Organizer not later
than Sixty (60) days before the Tournament Date.
3.7. Local Sponsorship:
3.7.1. Local Organizer is responsible for obtaining and securing all iocal sponsorship for the
Toumaments. For purposes of this Section, "loca( sponsorship" shall be defined to
mean any sponsor of the Toumament which has not been identified by Macker as a
National or Regional Sponsor.
3.7.2. Local Organizer agrees that it will not utilize any Local Sponsor which:
l. Sells, distributes, endorses or advertises, or is affiliated with any entity which
sells, distributes, endorses or advertises, any alcoholic beverage, any alcohol-
related product or any tobacco product;
2. Is a direct wmpetitor, in the furnishing of goods or services, of any National or
Regional Sponsor identified by Macker in accordance with Section 3.7 hereof.
3.7.3. Local Organizer acknowiedges that in enforcing the provisions of Section 3.7.2, Macker
shall be entitled to seek and obtain injunctive relief, in a court,of competent jurisdiction,
to enjoin any violation of Section 3.72. �
4. Fees, Revenues, and Charitable Contriburions.
4.1. Macker Fees:
4.1.1. Travel expenses: Travei expenses incuned by Macker in connection with the
Tournament including, but not limited to airfaze, surface transportation, and meals will
� be Three Thousand dollars ($3 000.00) per Tournament. The travel expenses shall be
paid on or before the first day of each tournament. It is ageed that lodging is not to be
a4-��
included as a travel expense under this paragraph. Local Organizer is responsible for
obtaining complimentary lodging from a local hotel, or reimburse Macker separately
for any lodging expense.
4.12. Pre-Toumament and Tournament Services: as compensation for services rendered
pursuant to paragraphs 2.2 and 23, Macker shall be entitled to the greater of
4.1.2.1. twenty eight percent (28%) of ihe gross team entry fees for the first 1,000 paid
teams and ten percent (10%) of the gross team entry fees for each paid team over
1,000; or
4.12.2. Nine Thousand Five Hundred Doliars ($9,500.00) if tournament is held on or
between Memorial Day and Labor Day; Three Thousand Six Hundred Dollars
($3,600.00) if toumament is held "off-season" (i.e. before Memorial Day or after
Labor Day).
This amount shall be due and payable on or before the first day of each Toumament.
For purposes of this paragraph, Macker and I,ocal Organizer agree that team entry fees
for the 1999 Tournament shall be a minimum of Eighty Eight Doliars ($88_00) per
team.
4.13. Miscellaneous Services: the services, if any, provided pursuant to paragraph 2.4 shall
be paid for within fifteen (15) days of Local Organizer's receipt of an invoice from
Macker.
4.2. Revenues:
42.1. Macker: Macker shall be entitled to ninety-five (95%) of the gross proceeds of all
souvenirs and goods sold by it pursuant to paragraph 6.1.
4.2.2. LocalOrganizer:
42.2.1. Except as set forth in pazagraph 7.2, Local Organizer shall be entitied to all of the
net proceeds of the sale of food and beverage products at the Toumament.
4.2.2.2. Local Organizer shall be entitied to five percent (5%) of the gross proceeds of sale
of souvenirs and goods sold by Macker pursuant to pazagraph 6.1. Macker shall
, provide a reasonably detailed statement of the amount owed to Local Organizer
� pursuant to this paragraph and shall pay Local Organizer this amount within thirty
(30) days after the last day of the Toumament; provided, however, if Local
Organizer defaults in performance of' 3ny of iu obligations under this Agreement
or does not secure a location of the sale tent neaz Center Court at the toumament,
Macker may at its sole discretion withhold payment of this five percent (5%) fee.
4.2.23. Local Organizer shail be entitted to seventy two percent (72%) of the gross tearn
entry fees, less the amount to be paid by Local Organuer to a local charitable
organization, as set forth in pazagraph 43.
99-'�'�
43. Charitable Contribution: Local Organizer shall make a contribution to a local charity pre-
approved by Macker from the Local Organizer's portion of the Tournament entry fees.
Such payment to be made within sixty (60) days of the last day of the Toumament.
5. Liquidated Damages.
5.1. Macker and Local Organizer acknowledge that, in the event Locai Organizer fails to
conduct any Tournament at the Toumament Location during the Term of this Agreement,
the damages suffered by Macker would be difficult or impossible to ascertain, since
Macker would suffer the loss of potential revenue from the sale of souvenirs, clothing and
other goods, as well as the loss of goodwiil. Macker and Local Organizer acknowtedge and
agree that Macker's profits on the sale of souvenirs, clothing, and the goodwill inuring to
Macker are a significant part of the consideration for this Agreement. Therefore, Macker
and Local Organizer agree that, in the event Local Organizer fails to conduct any
tournament at the Toumament Location during the Term of this Agreement, except as
specifically provided for in Section 9.1, then, for each such Toumament not conducted,
Local Organizer shall pay to Macker the sum of $5,000 as liquidated damages.
5.2. Local Organizer and Macker further agree that the failure of the Locai Organizer to
conduct a Tournament at the Toumament Site in any one year of the Term of this
Agreement shall be conclusively presumed to be an anticipatory breach of the Local
Organizer's obiigation to conduct a Tournament in any subsequent year remaining under
the Term of this Agreement, and that the liquidated damages set forth in this Section shall
apply to each subsequent year left under the Term of this Agreement.
5.3. In addition to the payment of liquidated damages required under this Section, if Local
Organizer fails to conduct any Toumament that is described in this Section 5, any unpaid
amounts due under Section 1.2 shall be immediately due and payable to Macker.
6. Sale of Souvenirs and Products bearing any trademarks or servicemarks owned by
Macker.
6.1. Macker shall have the exclusive right to sell souvenirs and goods which bear any
trademarks or service marks owned by Macker. Macker shall pay to Local Organizer the
amount set forth in paragraph 4.2.2.2. Notwithstanding the foregoing, Macker and Local
Organizer agree that the player's package distributed to each entrant and consisting of,
without limitation, a complimentary Gus Macker� t-shirt, the Gusette�, an official
program, and other items that may from time-to-time be included, shail be distributed to
entrants without charge other than the enriy fee.
6.2. Local Organizer has no right to sell or distribute any souvenirs or goods which bear any
trademuks or servicemarks owned by Macker without the prior written consent of Macker,
which may be withheld in Macker's sole discretion.
7. Sale of Food and Beverages.
Q1-'13
7.1. Except as set forth in pazagraph 7.2, I.ocal Organizer shall have the right to sell or
distribute any and all food and beverages and shall have the right to allow local service
organizations, including without limitation, the Jaycees, Kiwanis, Boy Scouts, and the like,
to sell or distribute foods and beverages.
7.2. Notwithstanding the limitarion of Secrion 7.1, Macker shall have the right to sell or
distribute any food or bevera�e product as part of any a�eement between Macker and any
Regional or National Sponsor. Local Organizer further agrees that it will not permit any
local organizarion to distribute any food or beverage that is contrary to or in violation of the
terms of any agreement between Macker and any Regional or National Sponsor.
8. Confidentiality, No rights in Technical Information, Copyrights, or Trademarizs.
8.1. Local Organizer acknowledges that Macker has devetoped and is the sole owner of
substantial proprietary information relating to organizing, promoting and conducting
basketball toumaments, including confidential information, lrnow-how, data, trade secrets,
technicai specifications, team pairing formulas and techniques, player data, mailing lists,
and the like ("Technical In£ormation").
82. Local Organizer acknowledges that Macker has developed and is the sole owner of copy-
righted name and formats for use in producing, without limitation, brochures, newsletters,
rules and regulations, programs, trophies, promotionai producu, computer software, and
the like ("Copyrighu").
83. Local Organizer acknowledges that Macker is the sole owner of the marks "Gus Macker",
"Basketball Man Logo", "Gusette" and other related terms and designs ("Trademarks").
8.4. Local Organizer acknowledges that Macker has the sole right to grant all license, authority,
and permission to use said Technical Information, Copyrighu and Trademarks (collectively
"Rights") throughout the entire United States, iu possessions, and all foreign countries,
inciuding those territories beTonging to the Universal and Berne Copyright Conventions.
8.5. Local Organizer agrees to maintain in secrecy all of the Technical Information that it
happens to come across or that Macker shares with in connection with the Toumament, and
promises not to disclose or use any of the Technical Information withheld in Macker's sole
discretion.
8.6. Local Organizer agrees that it has no ownership of, and is not retaining the services of
Macker to obtain any right of ownership in, or continued use of, any of the Technical
Information, Copyrights or Trademarks.
8.7. In the event that one or more of the said Rights are infringed, Macker shall, within a
reasonabie time after notice thereof, resoive the problem or commence and prosecute at
Macker's expense, ali legal proceedings necessary to reasonably protect said Rights and
stop such infringement, and shall be entitled to retain all recoveries made therein.
9. Canceilation and Termination.
0
99-��
9.1. Cancellation of Tournament: If less than One hundred (100) team applicants have been
received by Local Organizer at the time of the pre-established postmark entry deadline
date, then Local Organizer shall have the option to cancel the Toumament by written norice
to Macker no later than fourteen (14) days prior to the Toumament Date.
9.2. Promotional Fees: In the event of a cancellation of the Tournament pursuant to Section
9.1, ail unpaid installments of the Promotion Fee due to Macker under Section 1.2 are
immediately due and payable.
93. Termination: In the event any Tournament is canceled according to the provisions of
Section 9.1, Macker, at its sole option, may terminate this Agreement upon thirty (30) days
written notice to the Local Organizer. Notwithstanding any such termination, ali unpaid
installments of the Promotion Fee due to Macker under Section 1.2 are immediately due
and payable to Macker.
9.4. Bankruptcy of Local Organizer: If Local Organizer shail file a petition in bankruptcy or
be adjudicated bankrupt or become insolvent or make any assignment to the benefit of
creditors, or if the assets of Local Organizer shail be placed in the hands of a receiver,
Macker may terminate this Agreement by written notice by registered or certified mail to
Locai Organizer, its receivers, trustees or assigns. If this Agreement is so terminated, Local
Organizer, iu receivers, representatives, trustees, agents, successors or assignees shall not
be relieved of the obligations incuned to the date of termination.
10. Default.
10.1. Right to Ter»rinate: Should either Macker or Local Organizer default in the performance
of any of their respective obligations herein, and if such default shail continue for a period
of thirty (30) days after written notice and demand for performance to the defaulting party,
then the non-defaulting party may terminate this Agreement.
10.2. Liquidated Damages: In the event of default by the Local Organizes, the Local Organizer
shall be subject to the provision for liquidated damages as provided in Section 5.1, and all
unpaid installments of the Promotion Fee due to Macker under Section 1.2 are immediatety
due and payable to Macker.
103. Interest on Delinquent Paymenis: All Payments required to be made under this
Agreement not received by Macker by the specified due date shali accrue interest at a rate
equal to the then-current maximum rate permitted by law.
11. Non-Compete Agreement.
11.1. Macker: Macker agrees that during the term of this Agreement, it will not promote,
organize or conduct a Gus Macker� "3-on-3 Basketball Tournament" within Fifty (50)
miles of the Tournament Location and within One (1) month of the Toumament Date.
Macker shall not be bound by this agreement if fhe Toumament Services Agreement is
terminated pursuant to Articles 9 or 10.
10
q9-? 3
11.2. Local Organizer: Local Organizer agrees that it will not sponsor a so-called "three-on-
three" basketball tournament during the term of this Agreement and for eighteen (18)
months thereafter.
11.3. Consideralion: Locai Organizer and Macker agree that their respecrive agreements not to
compete, as set forth above, are an integral part of the overall wnsideration given by each
other entering into this A�eement.
12. Right of First Refusal for future Tournament.
In the event that Macker is interested in promoting, organizing and conducting a subsequent
Gus Macker� "Three-On-Three Basketball Tournament" at the Toumament Location within
Three Hundred Sixty Five (365) days from the expiration of this Agreement, and provided that
the Local Organizer is not in default under the terms of this Agreement, then Macker shall give
Local Organizer the first right to sponsor such subsequent Toumament. I,ocal Organizer shall
have thirty (30) days from receipt of written notice of Macker's intent to promote such a
Tournament to enter into a written Agreement with Macker to become the Local Organizer for
the Tournament.
13. Miscellaneous.
13.1. Notice: Any notice, payment, or communication to be given shall be sent, unless otherwise
specified herein, by first-class certified mail, retum receipt requested, and postage prepaid,
to the following address, as may be changed from time to time:
Macker:
Gus Macker Enterprises, Inc.
Attn: Mitcheli A. McNeal
3055 Lake Eastbrook Blvd.
Kentwood, MI 49512
Local Organizer:
Howazd Bell
St. Paul Parks & Rec.
300 City Hall Annex
25 W. 4`� St.
St. Paul, MN 55102
13.2. Law Governing: This Agreement shall be wnstrued and performance hereunder
determined in acwrdance with the laws of the State of Michigan, U.S.A. Any actions or
proceedings regarding this Agreement must be wmmenced and �maintained in a court in
the State ofMichigan, U.S.A.
13 3. Cost of Enforcement: In the event of breach or default of this Agreement by either party,
the losing party shall be required to pay a11 reasonable legal fees and costs incurred by the
successful pariy in enforcement of this Agreement.
11
°t9 - 3
13.4. Binding Agreement, Non Assignability: This A�reement shall be binding upon the parties
hereto and upon their respective heirs, successors, legal representative, and/or assigns, but
shall not be assignable or transferable in whole or in part by Local Organizer without
written consent of Macker, which may be withheld in Macker's sole discretion.
13.5. Entire Agreement: This Agreement contains the entire Agreement between the parties
hereto, and it shall not ba altered, modified or amended except by a written document duly
executed by all parties hereto.
13.6. Severability: The invalidity or legal unenforceability of any provision of this A�eement
shall not operate to abrogate this Agreement, but shall merely cause such provision, and
only said provision, to be invalid or unenforceable.
13.7. Headings: The headings of each paragraph herein aze used solely for convenience and are
not part of the Agreement.
13.8. Time of Essence: Time is of the essence of the Agreement.
13.9. Independent Contractor: The parties agree that Macker is performing the services
hereunder as an independent contractor, not as an employee, agent, or legal representative
of the Local Organizer.
13.10. Books and Records: Local Organizer shali, for a period of three (3) years after the last
day of the Toumament, keep full and particular books of accounts of all matters connected
with the income from the Tournament, which books of account shail be open for inspection
and/or audit by Macker or its representatives during regular business hours for the purpose
of verifying the reports made by Local Organizer to Macker within this Agreement. In the
event Macker's audit establishes a deficiency in paymenu in excess of five percent (5%) of
the amount reported by Local Organizer, Local Organizer will beaz the reasonable cost of
the audit.
In Wimess Whereof, Macker and Local Organizer have caused this Agreement to be signed as of the
dates set forth below, and to be effective as of the later of those dates.
Gus Macker Enterprises, Inc.
By � . ` ate: !/�9�y�
Mitchell A. McNeal
Its: President
Local (
�
Date: J�����
- � =.�
12
�q-�3
POR 1'HL•' CITY OF S.al\T PAUL:
Dated:
Daced:
Dated:
Da[ed:
The Honorabk \orm Cokman.
�la�or
� A. �diccJznstein. Jr--
Superin�znden� of Parks & Recrea�ion
�"ir�inia Palmer.
Assistan[ Ci�}' Auomz}
Joseph Rzid.
Direc[or, of Financial Ser�ices
13
ORIGINAL.
Presented By
Council File # ��'�3
Green Sheet � ����
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
�
Referred to Committee: Date
1 WHEREAS, The City of Saint Pau1, Division o£ Parks and Recreation has hosted the
2 Gus Macker 3-on-3 basketball Tournament in Saint Paul for the past ten (i01 years, and;
3
4 WHEREAS, Gus Macker Enterprises Incorporated is the sole owner of a11 Gus Macker
5 trademarks, and;
6
7 WHEREAS, The Division of Parks and Recreation wished to sign a three-year Agreement
8 with Gus Macker Enterprises Inc. to use said Trademarks and continue having the
9 Tournament in Saint Pau1, and;
10
11 WI3EREAS, in order to enter into such an Agreement, Gus Macker Enterprises Inc.
12 requires that the City indemnifies and holds them harmless, now;
13
14 TfiEREFORE BE IT RESOLVED, that the City Council of the City of Saint Paul directs
15 the appropriate City of£icials to enter into the attached agreement with Gus Macker
16 Enterprises Inc., and
17
18 BE IT FURTHER RESOLVED, that the City Council of the City of Saint Paul agrees to
19 indemni£y and hold harmless Gus Macker Enterprises Inc., its of£icers, directors,
20 employees, agents and representatives from and against any and a11 liabilities, damages,
21 losses, claims, demands or judgements for any actual or alleged personal injuries in
22 connection with the Tournament; or damages to property by any reason of any act of
23 negligence of said City or on account of any act or omission of the City in administering
24 the Tournament and the City of Saint Pau1's liability shall not exceed the limits
25 provided by Minn. Stat. §466.01 et seq.
Recrea�ion
by Division o£ P� and
r
�: — �, �
Adopted by Council: Date '� t� �q�°'
Adoption Certified by Council Secretary
BY� — � �
T�
Approved by Ma or: Date: � Z3 1�tQ�f
By:
Form Approved by City Attorney
sy: / .-,
Approv d by Mayo�7� Submission to
Counc� � / ' _ n
���7�"�`°
DEPARTMENT/OFFICE/COUNCIL DATEINITIATED GREEN SHEET NO. 62750
Parks and Recreation 01/5/98 . '3
CONTACT PERSON AND PHONE INITIAL/DATE INITIAL/DqTE
HowardBell 266-6475 I � � DEPARTMENTDIRECTOR 4 CITVCOUNQL
ASSIGN
NUMBER f0 Z CIiV ATTORNEY �J CITY CLERK
M115T BE ON COUNqL AGENDA BY (DATE) ROUTiNG
ORDER BUDGET DIRECTOR FIN. & MGT. SERVICES Dlfl.
3 MAY00. (OR ASSISTANT7 6 Parks & Recreation - 300 CHA
TOTAL ° OF SIGNATURE PAGES � (CpP ALL LOCATIONS FOR SIGNANRE)
ACTION REWESTED:
Signatures of Superintendent of Parks and Recreation, City Attorney and Mayor, and passage of the attached Council
Resolution by the Saint Paul City Council.
RECOMMENDATIONS: Appmve (A) or Fe�e<t (RI PERSONAL SERVICE CONiRACTS MUST ANS4YEft THE FOLLOWING ¢UESTIONS:
_PI.ANNING COMMISSION _CIVIL SERVICE COMMISSION �. Has cMis persoNfirm ever worketl under a wntract for tM1is departmenN
CIB COMMITTEE _ VES NO
P. STAFF 2. Has tMS person/tirm ever been a nty employee>
YES NO
DISTRICT COUNpL
— — 3. Does [his persoNfi�m possess a skill Pot normally possessed by any m�ren[ ciry employee�
SUPPORTS WHICH COVNqL 0&IECTNEP YES NO
Explain all yes answers on separare sheet and attach ro green sheec.
INITIATING PROBLEM, ISSUE, OPPORTUNIN (WM1O, Whaq When, WM1ere, Whyl:
The Division of Parks and Recreation wishes to re-enter into a 3-year agreement with Gus Macker Enterprises Inc. (GME)
GME requires the ho{d harmless provision to enter into an agreement. Tfie Gus Macker TournameM brings nearfy 3,000
players and more than 10,000 spectators into downtown Saint Paul each year.
ADVANTA6ESIF APPROVED�
Recreational opportunity for participants and spectators and revenue for many businesses in the Iowertown area.
DISADVANTAGESIFAPPROVED' ry+ yp1•"�"� ��
��;�� ��°,
rvia ��(� �� t�J9
JA� � � 0999
��r� � � N��
DISADVANSAGESIFNOTAPPROVED: ,,,_... -- -'
Loss of above opportunities.
TOTAL AMOUNT OF TPANSACTION S 2�},OOO.00 �COS REVENUE BUDGETED (CIRCLE ONE) VES NO
FUNDINGSOUHCE Soecial Services Fund AcTIVITYNUMBER 325-23740
--� REC EQ
FINANCIAL INFORMATION: �EXPLAIN)
City pays GME $8,000 annualy for three years. Costs are recovered through corporete sponsorships.
a1 �.!� 1 1 1999
�v�NY
Tournament Services Agreement
(Revrsed 9/98)
new/renew
qq-�3
This Toumament Services Agreement ("Agreement") is made this � day of ll,��/.� 1998
by and between Gus Macker Enterprises, Inc. of Grand Rapids, b� ("Macker") and St. Paul
Parks & Rec. ("Local Organizer").
Recitals
A. Macker is in the business of promoting, organizing, and conducting basketball toumaments;
and
B. Local Organizer desires to hire Macker to promote, organize and conduct a three-on-three
basketball tournament in the city of St. Paul Minnesota (the "Tournament Location")
according to the terms hereinafter set forth.
Term and Promotion Fee
1.1. Term: Local Organizer hereby hires Macker to promote, organize and conduct an
annual three-on-three basketball toumament in the Toumament Location for the period
of three (3) years (the "Term") on or about the following dates: Ausust 21-22. 1999,
August 19-20. 2000, and Auaust 18-19. 2001 (coltectively, the °Tournament Dates").
1.2. Service and Promotion Fee: Local Organizer shail pay Macker, as a promotional fee,
the sum of $24,000 to promote, organize and conduct the Tournaments foc the term of
this Agreement. The promotional fee shall be paid as follows:
$4,000 upon signing this Agreement
$4,000 on or before Aueust 21. 1999
$4,000 on or before Januarv I5. 2000
$4,000 on or before Aueust 19, 2000
$4,000 on or before Januar� 15, 2001
$4,000 on or before Au�ust 18. 2001
2. Macker Responsibilities
2. L General: Macker a�ees to heip promote, organize and conduct a Gus Macker� "3-on-3
Basketball Touma�ent" at the Toumament Location at a specific outdoor site to be
identified to Macker in writing by L,ocai Organizer no later than 120 days prior to each
Tournament Date.
2.2.
22.1.
Pre-Tournament Services: Macker agrees to provide the following services prior to each
Tournament Date.
layout assistance for Pre-Toumament brochures, including the official team application
forms;
q�a - � �
222.
layout assistance for Toumament infonnation provided to participants, including the
newspaper (with Tournament schedule and information), and official Toumament
program (including Tournament rules and regulations);
223. organizational assistance in obtaining a local staff for the Toumament, inctuding a
local organizing committee siructure, local court monitors ("GusBusters"), locai event
volunteers, and local medical personnel;
2.2.4.
2.2.5.
2.2.6.
22.7.
22.8.
2.3.
23.1.
23.2.
2.3.3.
23.4.
23.5.
23.6.
computer breakdown of teams into divisions and assistance in creatin� the Toumament
game schedules;
assistance in budgeting Tournament expenses;
assistance in selecting the Tournament site and drafting the map and the layout of
courts for the specific Toumament site;
provide I,ocal Organizer with Macker's regionai mailing list of past tournament
participants and potential players known to Macker; and
assistance in designing an appropriate system for Tournament sponsor recognition.
Tournament Services: At the Tournament, Macker shall provide a minimum of four (4)
Macker officials, who shall render services on-site relating to the following:
training and supervision of court monitors and officials;
organization and supervision of on-site piayer registration;
supervision and organization of scheduling and brackets;
assistance in rule interpretation and player eligibility;
opening ceremonies (inciuding explanation of rules), and starting games; and
supervision of public address system and "Master of Ceremonies" responsibilities
2.4. Miscellaneous Services: Upon the written request of Locai Organizer, Macker will
provide additional miscellaneous other services at the rate of riventy-five doliars ($25.00)
per man hour. Macker sha11 provide written time records for these miscellaneous services.
2.5
2.5.1
Tournament Supplies:
Unique Items: Macker agrees to provide the Local Organizer with sufficient
information, specifications, or materials necessary for Local Organizer to obtain the
following itemslservices (collecrively the "Unique Items"):
2.5.1.1. complimentary player t-shirts;
o�q.��
2.5.1.2. trophies and awards;
2.5.1.3. printed materials:
2.5.1.3.1. Gusettec9 newspaper;
2.5.1.3.2. enh forms and booklet;
2.5.133. promotional posters;
2.5.13.4. local organizing committee stationery and envelopes;
2.5.1.3.5. player waiver for.ns
2.5.1.4. transportation of equipment; and
2.5.1.5. sponsor banners & signs.
2.52. Unique Items: Macker agrees to provide the following Unique Items at no additional
cost to Local Organizer:
2.5.2.1. duct tape for court boundaries;
2.5.2.2. official programs;
2.5.23. scoresheets;
2.5.2.4. "hospital style" ID Braceleu;
2.5.2.5. portable baskets;
2.5.2.6. basketbalis;
2.5.2.7. computer processing of teams;
2.5.2.8. liability insurance (as more specifically described in Pazagraph 2.6); and
2.5.2.9. semi-trailers necessary for transportation of equipment.
2.5.3. Generic Items: Macker �grees to provide Local Organizer with sufficient information,
specifications, or materials necessary for Local Organizer to obtain the following
items/services (collectively the "Generic Items"):
2.5.3.1. portable restrooms;
2.5.3.2. garbage cans/dumpsters;
�:
�
2.53.3. bleachers;
2.53.4. tables & chairs;
2.5.3.5. tenu;
2.53.6. public address system;
2.53.7. forklift;
2.53.8. security;
2.5.3.9. medical personnel and supplies;
2.53.10. two-way radios.
2.5.4. Procuring Tournament Supplies:
�q_��
2.5.4.1. Ordering: Macker and Local Organizer shall agree in writing as to who will be
responsible for ordering the various Unique Items and Generic Items (collectively
"Toumament Supplies"). Unless othenvise specified, Local Organizer shall be
responsible for ordering the Generic Items. Unless othenvise speciFied, payment
for the Tournament Supplies wilt ultimately be the responsibility of the Local
Organizer, as set forth elsewhere in this Agreement.
2.5.4.2. Suppliers: Local Organizer acknowledges that there are only certain suppliers for
some of the Unique Items, in part because of the stringent specifications for the
Unique Items. Macker wi11 suppty I,ocal Organizer with written specifications for
the Unique Items in order to allow Local Organizer the opportunity to determine if
any locai suppliers are capabie of producing them. In the event that the Local
Organizer finds a supplier that can meet the stringent speciFications of Macker, at
a price lower than obtainable by Macker through Macker's usual suppiiers, Macker
agrees to �easonably consider ailowing Local Organizer to obtain the items in
question from each supplier. In the event that Macker does not approve the
supplier requested by Local Organizer, Local Organizer shali have the option of
ordering the Unique Items Directly from the Supplier that Macker intends to use
were it going to obtain the Unique Items in question. Local Organizer shall be
responsible for ensuring the quality of the Uniq�,�e Items it obtains. In the event
that they are not in compliance with the specifications, then Macker shalt have the
right to order replacements from iu usual suppliers, all at the cost of Local
Organizer.
2.6. Insurance:
2.6.1. Macker shali obtain commercial public liability insurance coverage (Spectator
Liability) for Bodily Injury & Property Damage and Participant Legal Liability
coverage, naming Local Organizer, Gus Macker Enterprises, Inc. and any Local,
National or Regional Sponsors identified by Local Organizer and/or Macker as
additional insureds, in the amount of One Million Dollars ($1,000,000) each � � 7 3
occurrence and annual aggregate for commercial public liability coverage, and Two
Hundred Fifty Thousand doliars ($250,000) per occurrence for Participant Legal
Liability coverage. Macker shall provide Local Organizer with a copy of a policy
conforming to the within conditions no later than fifteen (15) days prior to the
Toumament Date.
2.6.2 Local Organizer agrees that each participant in the Toumament shall acknowiedge in
writing, in a form provided by Macker, that Macker and Local Organizer shall have no
liability for personal injuries which may arise from the entranPs participation in the
Toumament.
Local Organizer Responsibilities
3.1. Spec�c Tournament Site: Local Organizer shall be responsible for selecting a specific
site for each Toumament within the Tournament i,ocation. Local Organizer shall provide
Macker with written notice of the specific site for the Tournament no later than 120 days
prior to each Toumament Date. Locai Organizer agrees to consult Macker regarding the
suitability of the specific site and specific layout (including court placement, tent
placement, etc...) prior to making any public announcement and commitment to sponsor
the Tournament at that site.
3.2. Approvals, Permits and Licenses: Local Organizer shail be responsibie for obtaining all
required governmental approvals, permits and licenses necessary for Macker to conduct the
Toumament, including, without limitation, those approvals necessary to:
3.2.1. operate the outdoor pubiic address system;
3.2.2. divert and block tr�c; and
3.2.3. sell food and souvenirs.
3.3. Tournament Supplies: Local Organizer shall obtain the quantity and quality to
Toumament supplies set forth in the written agreement referenced in paragraph 2.5, above.
3.4. Personnel: Local Organizer shall be responsible for obtaining volunteer personnel to serve
in the following areas of responsibility:
3.4.1. court monitors (GusBusters) and cfficials;
3.42. set-up, take-down, and cleanup;
3.43. on-site player registration;
3.4.4. scheduling/bracket tent;
3.4.5. on-site special events; and QQ'�
3.4.6 medicai care and first aid.
Macker will make recommendations to Local Organizer regarding the number of
volunteers needed, at a time closer to the Toumament Date. If Local Organizer fails to
secure an adequate number of volunteers, Macker shall have the right to hire paid
personnel which Lc^al Organizer shail be responsible to pay.
3.5. Charges, Cost and Fxpenses: Local Organizer shall be responsible for all cost and
expenses, regazdless of how characterized, in wnnection with the Toumament including,
without limitation, the cost of the permits, approvals, and licenses, insurance, Tournament
Supplies, and fees and out of pocket expenses charged by Macker, as more specifically
outlined below.
3.6. National or Regional Sponsor: Local Organizer agrees to comply with any and all
requirements of any National or Regional Sponsor identified by Macker. Macker shall be
responsible to identify any National or Regional Sponsor to the Local Organizer not later
than Sixty (60) days before the Tournament Date.
3.7. Local Sponsorship:
3.7.1. Local Organizer is responsible for obtaining and securing all iocal sponsorship for the
Toumaments. For purposes of this Section, "loca( sponsorship" shall be defined to
mean any sponsor of the Toumament which has not been identified by Macker as a
National or Regional Sponsor.
3.7.2. Local Organizer agrees that it will not utilize any Local Sponsor which:
l. Sells, distributes, endorses or advertises, or is affiliated with any entity which
sells, distributes, endorses or advertises, any alcoholic beverage, any alcohol-
related product or any tobacco product;
2. Is a direct wmpetitor, in the furnishing of goods or services, of any National or
Regional Sponsor identified by Macker in accordance with Section 3.7 hereof.
3.7.3. Local Organizer acknowiedges that in enforcing the provisions of Section 3.7.2, Macker
shall be entitled to seek and obtain injunctive relief, in a court,of competent jurisdiction,
to enjoin any violation of Section 3.72. �
4. Fees, Revenues, and Charitable Contriburions.
4.1. Macker Fees:
4.1.1. Travel expenses: Travei expenses incuned by Macker in connection with the
Tournament including, but not limited to airfaze, surface transportation, and meals will
� be Three Thousand dollars ($3 000.00) per Tournament. The travel expenses shall be
paid on or before the first day of each tournament. It is ageed that lodging is not to be
a4-��
included as a travel expense under this paragraph. Local Organizer is responsible for
obtaining complimentary lodging from a local hotel, or reimburse Macker separately
for any lodging expense.
4.12. Pre-Toumament and Tournament Services: as compensation for services rendered
pursuant to paragraphs 2.2 and 23, Macker shall be entitled to the greater of
4.1.2.1. twenty eight percent (28%) of ihe gross team entry fees for the first 1,000 paid
teams and ten percent (10%) of the gross team entry fees for each paid team over
1,000; or
4.12.2. Nine Thousand Five Hundred Doliars ($9,500.00) if tournament is held on or
between Memorial Day and Labor Day; Three Thousand Six Hundred Dollars
($3,600.00) if toumament is held "off-season" (i.e. before Memorial Day or after
Labor Day).
This amount shall be due and payable on or before the first day of each Toumament.
For purposes of this paragraph, Macker and I,ocal Organizer agree that team entry fees
for the 1999 Tournament shall be a minimum of Eighty Eight Doliars ($88_00) per
team.
4.13. Miscellaneous Services: the services, if any, provided pursuant to paragraph 2.4 shall
be paid for within fifteen (15) days of Local Organizer's receipt of an invoice from
Macker.
4.2. Revenues:
42.1. Macker: Macker shall be entitled to ninety-five (95%) of the gross proceeds of all
souvenirs and goods sold by it pursuant to paragraph 6.1.
4.2.2. LocalOrganizer:
42.2.1. Except as set forth in pazagraph 7.2, Local Organizer shall be entitied to all of the
net proceeds of the sale of food and beverage products at the Toumament.
4.2.2.2. Local Organizer shall be entitied to five percent (5%) of the gross proceeds of sale
of souvenirs and goods sold by Macker pursuant to pazagraph 6.1. Macker shall
, provide a reasonably detailed statement of the amount owed to Local Organizer
� pursuant to this paragraph and shall pay Local Organizer this amount within thirty
(30) days after the last day of the Toumament; provided, however, if Local
Organizer defaults in performance of' 3ny of iu obligations under this Agreement
or does not secure a location of the sale tent neaz Center Court at the toumament,
Macker may at its sole discretion withhold payment of this five percent (5%) fee.
4.2.23. Local Organizer shail be entitted to seventy two percent (72%) of the gross tearn
entry fees, less the amount to be paid by Local Organuer to a local charitable
organization, as set forth in pazagraph 43.
99-'�'�
43. Charitable Contribution: Local Organizer shall make a contribution to a local charity pre-
approved by Macker from the Local Organizer's portion of the Tournament entry fees.
Such payment to be made within sixty (60) days of the last day of the Toumament.
5. Liquidated Damages.
5.1. Macker and Local Organizer acknowledge that, in the event Locai Organizer fails to
conduct any Tournament at the Toumament Location during the Term of this Agreement,
the damages suffered by Macker would be difficult or impossible to ascertain, since
Macker would suffer the loss of potential revenue from the sale of souvenirs, clothing and
other goods, as well as the loss of goodwiil. Macker and Local Organizer acknowtedge and
agree that Macker's profits on the sale of souvenirs, clothing, and the goodwill inuring to
Macker are a significant part of the consideration for this Agreement. Therefore, Macker
and Local Organizer agree that, in the event Local Organizer fails to conduct any
tournament at the Toumament Location during the Term of this Agreement, except as
specifically provided for in Section 9.1, then, for each such Toumament not conducted,
Local Organizer shall pay to Macker the sum of $5,000 as liquidated damages.
5.2. Local Organizer and Macker further agree that the failure of the Locai Organizer to
conduct a Tournament at the Toumament Site in any one year of the Term of this
Agreement shall be conclusively presumed to be an anticipatory breach of the Local
Organizer's obiigation to conduct a Tournament in any subsequent year remaining under
the Term of this Agreement, and that the liquidated damages set forth in this Section shall
apply to each subsequent year left under the Term of this Agreement.
5.3. In addition to the payment of liquidated damages required under this Section, if Local
Organizer fails to conduct any Toumament that is described in this Section 5, any unpaid
amounts due under Section 1.2 shall be immediately due and payable to Macker.
6. Sale of Souvenirs and Products bearing any trademarks or servicemarks owned by
Macker.
6.1. Macker shall have the exclusive right to sell souvenirs and goods which bear any
trademarks or service marks owned by Macker. Macker shall pay to Local Organizer the
amount set forth in paragraph 4.2.2.2. Notwithstanding the foregoing, Macker and Local
Organizer agree that the player's package distributed to each entrant and consisting of,
without limitation, a complimentary Gus Macker� t-shirt, the Gusette�, an official
program, and other items that may from time-to-time be included, shail be distributed to
entrants without charge other than the enriy fee.
6.2. Local Organizer has no right to sell or distribute any souvenirs or goods which bear any
trademuks or servicemarks owned by Macker without the prior written consent of Macker,
which may be withheld in Macker's sole discretion.
7. Sale of Food and Beverages.
Q1-'13
7.1. Except as set forth in pazagraph 7.2, I.ocal Organizer shall have the right to sell or
distribute any and all food and beverages and shall have the right to allow local service
organizations, including without limitation, the Jaycees, Kiwanis, Boy Scouts, and the like,
to sell or distribute foods and beverages.
7.2. Notwithstanding the limitarion of Secrion 7.1, Macker shall have the right to sell or
distribute any food or bevera�e product as part of any a�eement between Macker and any
Regional or National Sponsor. Local Organizer further agrees that it will not permit any
local organizarion to distribute any food or beverage that is contrary to or in violation of the
terms of any agreement between Macker and any Regional or National Sponsor.
8. Confidentiality, No rights in Technical Information, Copyrights, or Trademarizs.
8.1. Local Organizer acknowledges that Macker has devetoped and is the sole owner of
substantial proprietary information relating to organizing, promoting and conducting
basketball toumaments, including confidential information, lrnow-how, data, trade secrets,
technicai specifications, team pairing formulas and techniques, player data, mailing lists,
and the like ("Technical In£ormation").
82. Local Organizer acknowledges that Macker has developed and is the sole owner of copy-
righted name and formats for use in producing, without limitation, brochures, newsletters,
rules and regulations, programs, trophies, promotionai producu, computer software, and
the like ("Copyrighu").
83. Local Organizer acknowledges that Macker is the sole owner of the marks "Gus Macker",
"Basketball Man Logo", "Gusette" and other related terms and designs ("Trademarks").
8.4. Local Organizer acknowledges that Macker has the sole right to grant all license, authority,
and permission to use said Technical Information, Copyrighu and Trademarks (collectively
"Rights") throughout the entire United States, iu possessions, and all foreign countries,
inciuding those territories beTonging to the Universal and Berne Copyright Conventions.
8.5. Local Organizer agrees to maintain in secrecy all of the Technical Information that it
happens to come across or that Macker shares with in connection with the Toumament, and
promises not to disclose or use any of the Technical Information withheld in Macker's sole
discretion.
8.6. Local Organizer agrees that it has no ownership of, and is not retaining the services of
Macker to obtain any right of ownership in, or continued use of, any of the Technical
Information, Copyrights or Trademarks.
8.7. In the event that one or more of the said Rights are infringed, Macker shall, within a
reasonabie time after notice thereof, resoive the problem or commence and prosecute at
Macker's expense, ali legal proceedings necessary to reasonably protect said Rights and
stop such infringement, and shall be entitled to retain all recoveries made therein.
9. Canceilation and Termination.
0
99-��
9.1. Cancellation of Tournament: If less than One hundred (100) team applicants have been
received by Local Organizer at the time of the pre-established postmark entry deadline
date, then Local Organizer shall have the option to cancel the Toumament by written norice
to Macker no later than fourteen (14) days prior to the Toumament Date.
9.2. Promotional Fees: In the event of a cancellation of the Tournament pursuant to Section
9.1, ail unpaid installments of the Promotion Fee due to Macker under Section 1.2 are
immediately due and payable.
93. Termination: In the event any Tournament is canceled according to the provisions of
Section 9.1, Macker, at its sole option, may terminate this Agreement upon thirty (30) days
written notice to the Local Organizer. Notwithstanding any such termination, ali unpaid
installments of the Promotion Fee due to Macker under Section 1.2 are immediately due
and payable to Macker.
9.4. Bankruptcy of Local Organizer: If Local Organizer shail file a petition in bankruptcy or
be adjudicated bankrupt or become insolvent or make any assignment to the benefit of
creditors, or if the assets of Local Organizer shail be placed in the hands of a receiver,
Macker may terminate this Agreement by written notice by registered or certified mail to
Locai Organizer, its receivers, trustees or assigns. If this Agreement is so terminated, Local
Organizer, iu receivers, representatives, trustees, agents, successors or assignees shall not
be relieved of the obligations incuned to the date of termination.
10. Default.
10.1. Right to Ter»rinate: Should either Macker or Local Organizer default in the performance
of any of their respective obligations herein, and if such default shail continue for a period
of thirty (30) days after written notice and demand for performance to the defaulting party,
then the non-defaulting party may terminate this Agreement.
10.2. Liquidated Damages: In the event of default by the Local Organizes, the Local Organizer
shall be subject to the provision for liquidated damages as provided in Section 5.1, and all
unpaid installments of the Promotion Fee due to Macker under Section 1.2 are immediatety
due and payable to Macker.
103. Interest on Delinquent Paymenis: All Payments required to be made under this
Agreement not received by Macker by the specified due date shali accrue interest at a rate
equal to the then-current maximum rate permitted by law.
11. Non-Compete Agreement.
11.1. Macker: Macker agrees that during the term of this Agreement, it will not promote,
organize or conduct a Gus Macker� "3-on-3 Basketball Tournament" within Fifty (50)
miles of the Tournament Location and within One (1) month of the Toumament Date.
Macker shall not be bound by this agreement if fhe Toumament Services Agreement is
terminated pursuant to Articles 9 or 10.
10
q9-? 3
11.2. Local Organizer: Local Organizer agrees that it will not sponsor a so-called "three-on-
three" basketball tournament during the term of this Agreement and for eighteen (18)
months thereafter.
11.3. Consideralion: Locai Organizer and Macker agree that their respecrive agreements not to
compete, as set forth above, are an integral part of the overall wnsideration given by each
other entering into this A�eement.
12. Right of First Refusal for future Tournament.
In the event that Macker is interested in promoting, organizing and conducting a subsequent
Gus Macker� "Three-On-Three Basketball Tournament" at the Toumament Location within
Three Hundred Sixty Five (365) days from the expiration of this Agreement, and provided that
the Local Organizer is not in default under the terms of this Agreement, then Macker shall give
Local Organizer the first right to sponsor such subsequent Toumament. I,ocal Organizer shall
have thirty (30) days from receipt of written notice of Macker's intent to promote such a
Tournament to enter into a written Agreement with Macker to become the Local Organizer for
the Tournament.
13. Miscellaneous.
13.1. Notice: Any notice, payment, or communication to be given shall be sent, unless otherwise
specified herein, by first-class certified mail, retum receipt requested, and postage prepaid,
to the following address, as may be changed from time to time:
Macker:
Gus Macker Enterprises, Inc.
Attn: Mitcheli A. McNeal
3055 Lake Eastbrook Blvd.
Kentwood, MI 49512
Local Organizer:
Howazd Bell
St. Paul Parks & Rec.
300 City Hall Annex
25 W. 4`� St.
St. Paul, MN 55102
13.2. Law Governing: This Agreement shall be wnstrued and performance hereunder
determined in acwrdance with the laws of the State of Michigan, U.S.A. Any actions or
proceedings regarding this Agreement must be wmmenced and �maintained in a court in
the State ofMichigan, U.S.A.
13 3. Cost of Enforcement: In the event of breach or default of this Agreement by either party,
the losing party shall be required to pay a11 reasonable legal fees and costs incurred by the
successful pariy in enforcement of this Agreement.
11
°t9 - 3
13.4. Binding Agreement, Non Assignability: This A�reement shall be binding upon the parties
hereto and upon their respective heirs, successors, legal representative, and/or assigns, but
shall not be assignable or transferable in whole or in part by Local Organizer without
written consent of Macker, which may be withheld in Macker's sole discretion.
13.5. Entire Agreement: This Agreement contains the entire Agreement between the parties
hereto, and it shall not ba altered, modified or amended except by a written document duly
executed by all parties hereto.
13.6. Severability: The invalidity or legal unenforceability of any provision of this A�eement
shall not operate to abrogate this Agreement, but shall merely cause such provision, and
only said provision, to be invalid or unenforceable.
13.7. Headings: The headings of each paragraph herein aze used solely for convenience and are
not part of the Agreement.
13.8. Time of Essence: Time is of the essence of the Agreement.
13.9. Independent Contractor: The parties agree that Macker is performing the services
hereunder as an independent contractor, not as an employee, agent, or legal representative
of the Local Organizer.
13.10. Books and Records: Local Organizer shali, for a period of three (3) years after the last
day of the Toumament, keep full and particular books of accounts of all matters connected
with the income from the Tournament, which books of account shail be open for inspection
and/or audit by Macker or its representatives during regular business hours for the purpose
of verifying the reports made by Local Organizer to Macker within this Agreement. In the
event Macker's audit establishes a deficiency in paymenu in excess of five percent (5%) of
the amount reported by Local Organizer, Local Organizer will beaz the reasonable cost of
the audit.
In Wimess Whereof, Macker and Local Organizer have caused this Agreement to be signed as of the
dates set forth below, and to be effective as of the later of those dates.
Gus Macker Enterprises, Inc.
By � . ` ate: !/�9�y�
Mitchell A. McNeal
Its: President
Local (
�
Date: J�����
- � =.�
12
�q-�3
POR 1'HL•' CITY OF S.al\T PAUL:
Dated:
Daced:
Dated:
Da[ed:
The Honorabk \orm Cokman.
�la�or
� A. �diccJznstein. Jr--
Superin�znden� of Parks & Recrea�ion
�"ir�inia Palmer.
Assistan[ Ci�}' Auomz}
Joseph Rzid.
Direc[or, of Financial Ser�ices
13
ORIGINAL.
Presented By
Council File # ��'�3
Green Sheet � ����
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
�
Referred to Committee: Date
1 WHEREAS, The City of Saint Pau1, Division o£ Parks and Recreation has hosted the
2 Gus Macker 3-on-3 basketball Tournament in Saint Paul for the past ten (i01 years, and;
3
4 WHEREAS, Gus Macker Enterprises Incorporated is the sole owner of a11 Gus Macker
5 trademarks, and;
6
7 WHEREAS, The Division of Parks and Recreation wished to sign a three-year Agreement
8 with Gus Macker Enterprises Inc. to use said Trademarks and continue having the
9 Tournament in Saint Pau1, and;
10
11 WI3EREAS, in order to enter into such an Agreement, Gus Macker Enterprises Inc.
12 requires that the City indemnifies and holds them harmless, now;
13
14 TfiEREFORE BE IT RESOLVED, that the City Council of the City of Saint Paul directs
15 the appropriate City of£icials to enter into the attached agreement with Gus Macker
16 Enterprises Inc., and
17
18 BE IT FURTHER RESOLVED, that the City Council of the City of Saint Paul agrees to
19 indemni£y and hold harmless Gus Macker Enterprises Inc., its of£icers, directors,
20 employees, agents and representatives from and against any and a11 liabilities, damages,
21 losses, claims, demands or judgements for any actual or alleged personal injuries in
22 connection with the Tournament; or damages to property by any reason of any act of
23 negligence of said City or on account of any act or omission of the City in administering
24 the Tournament and the City of Saint Pau1's liability shall not exceed the limits
25 provided by Minn. Stat. §466.01 et seq.
Recrea�ion
by Division o£ P� and
r
�: — �, �
Adopted by Council: Date '� t� �q�°'
Adoption Certified by Council Secretary
BY� — � �
T�
Approved by Ma or: Date: � Z3 1�tQ�f
By:
Form Approved by City Attorney
sy: / .-,
Approv d by Mayo�7� Submission to
Counc� � / ' _ n
���7�"�`°
DEPARTMENT/OFFICE/COUNCIL DATEINITIATED GREEN SHEET NO. 62750
Parks and Recreation 01/5/98 . '3
CONTACT PERSON AND PHONE INITIAL/DATE INITIAL/DqTE
HowardBell 266-6475 I � � DEPARTMENTDIRECTOR 4 CITVCOUNQL
ASSIGN
NUMBER f0 Z CIiV ATTORNEY �J CITY CLERK
M115T BE ON COUNqL AGENDA BY (DATE) ROUTiNG
ORDER BUDGET DIRECTOR FIN. & MGT. SERVICES Dlfl.
3 MAY00. (OR ASSISTANT7 6 Parks & Recreation - 300 CHA
TOTAL ° OF SIGNATURE PAGES � (CpP ALL LOCATIONS FOR SIGNANRE)
ACTION REWESTED:
Signatures of Superintendent of Parks and Recreation, City Attorney and Mayor, and passage of the attached Council
Resolution by the Saint Paul City Council.
RECOMMENDATIONS: Appmve (A) or Fe�e<t (RI PERSONAL SERVICE CONiRACTS MUST ANS4YEft THE FOLLOWING ¢UESTIONS:
_PI.ANNING COMMISSION _CIVIL SERVICE COMMISSION �. Has cMis persoNfirm ever worketl under a wntract for tM1is departmenN
CIB COMMITTEE _ VES NO
P. STAFF 2. Has tMS person/tirm ever been a nty employee>
YES NO
DISTRICT COUNpL
— — 3. Does [his persoNfi�m possess a skill Pot normally possessed by any m�ren[ ciry employee�
SUPPORTS WHICH COVNqL 0&IECTNEP YES NO
Explain all yes answers on separare sheet and attach ro green sheec.
INITIATING PROBLEM, ISSUE, OPPORTUNIN (WM1O, Whaq When, WM1ere, Whyl:
The Division of Parks and Recreation wishes to re-enter into a 3-year agreement with Gus Macker Enterprises Inc. (GME)
GME requires the ho{d harmless provision to enter into an agreement. Tfie Gus Macker TournameM brings nearfy 3,000
players and more than 10,000 spectators into downtown Saint Paul each year.
ADVANTA6ESIF APPROVED�
Recreational opportunity for participants and spectators and revenue for many businesses in the Iowertown area.
DISADVANTAGESIFAPPROVED' ry+ yp1•"�"� ��
��;�� ��°,
rvia ��(� �� t�J9
JA� � � 0999
��r� � � N��
DISADVANSAGESIFNOTAPPROVED: ,,,_... -- -'
Loss of above opportunities.
TOTAL AMOUNT OF TPANSACTION S 2�},OOO.00 �COS REVENUE BUDGETED (CIRCLE ONE) VES NO
FUNDINGSOUHCE Soecial Services Fund AcTIVITYNUMBER 325-23740
--� REC EQ
FINANCIAL INFORMATION: �EXPLAIN)
City pays GME $8,000 annualy for three years. Costs are recovered through corporete sponsorships.
a1 �.!� 1 1 1999
�v�NY
Tournament Services Agreement
(Revrsed 9/98)
new/renew
qq-�3
This Toumament Services Agreement ("Agreement") is made this � day of ll,��/.� 1998
by and between Gus Macker Enterprises, Inc. of Grand Rapids, b� ("Macker") and St. Paul
Parks & Rec. ("Local Organizer").
Recitals
A. Macker is in the business of promoting, organizing, and conducting basketball toumaments;
and
B. Local Organizer desires to hire Macker to promote, organize and conduct a three-on-three
basketball tournament in the city of St. Paul Minnesota (the "Tournament Location")
according to the terms hereinafter set forth.
Term and Promotion Fee
1.1. Term: Local Organizer hereby hires Macker to promote, organize and conduct an
annual three-on-three basketball toumament in the Toumament Location for the period
of three (3) years (the "Term") on or about the following dates: Ausust 21-22. 1999,
August 19-20. 2000, and Auaust 18-19. 2001 (coltectively, the °Tournament Dates").
1.2. Service and Promotion Fee: Local Organizer shail pay Macker, as a promotional fee,
the sum of $24,000 to promote, organize and conduct the Tournaments foc the term of
this Agreement. The promotional fee shall be paid as follows:
$4,000 upon signing this Agreement
$4,000 on or before Aueust 21. 1999
$4,000 on or before Januarv I5. 2000
$4,000 on or before Aueust 19, 2000
$4,000 on or before Januar� 15, 2001
$4,000 on or before Au�ust 18. 2001
2. Macker Responsibilities
2. L General: Macker a�ees to heip promote, organize and conduct a Gus Macker� "3-on-3
Basketball Touma�ent" at the Toumament Location at a specific outdoor site to be
identified to Macker in writing by L,ocai Organizer no later than 120 days prior to each
Tournament Date.
2.2.
22.1.
Pre-Tournament Services: Macker agrees to provide the following services prior to each
Tournament Date.
layout assistance for Pre-Toumament brochures, including the official team application
forms;
q�a - � �
222.
layout assistance for Toumament infonnation provided to participants, including the
newspaper (with Tournament schedule and information), and official Toumament
program (including Tournament rules and regulations);
223. organizational assistance in obtaining a local staff for the Toumament, inctuding a
local organizing committee siructure, local court monitors ("GusBusters"), locai event
volunteers, and local medical personnel;
2.2.4.
2.2.5.
2.2.6.
22.7.
22.8.
2.3.
23.1.
23.2.
2.3.3.
23.4.
23.5.
23.6.
computer breakdown of teams into divisions and assistance in creatin� the Toumament
game schedules;
assistance in budgeting Tournament expenses;
assistance in selecting the Tournament site and drafting the map and the layout of
courts for the specific Toumament site;
provide I,ocal Organizer with Macker's regionai mailing list of past tournament
participants and potential players known to Macker; and
assistance in designing an appropriate system for Tournament sponsor recognition.
Tournament Services: At the Tournament, Macker shall provide a minimum of four (4)
Macker officials, who shall render services on-site relating to the following:
training and supervision of court monitors and officials;
organization and supervision of on-site piayer registration;
supervision and organization of scheduling and brackets;
assistance in rule interpretation and player eligibility;
opening ceremonies (inciuding explanation of rules), and starting games; and
supervision of public address system and "Master of Ceremonies" responsibilities
2.4. Miscellaneous Services: Upon the written request of Locai Organizer, Macker will
provide additional miscellaneous other services at the rate of riventy-five doliars ($25.00)
per man hour. Macker sha11 provide written time records for these miscellaneous services.
2.5
2.5.1
Tournament Supplies:
Unique Items: Macker agrees to provide the Local Organizer with sufficient
information, specifications, or materials necessary for Local Organizer to obtain the
following itemslservices (collecrively the "Unique Items"):
2.5.1.1. complimentary player t-shirts;
o�q.��
2.5.1.2. trophies and awards;
2.5.1.3. printed materials:
2.5.1.3.1. Gusettec9 newspaper;
2.5.1.3.2. enh forms and booklet;
2.5.133. promotional posters;
2.5.13.4. local organizing committee stationery and envelopes;
2.5.1.3.5. player waiver for.ns
2.5.1.4. transportation of equipment; and
2.5.1.5. sponsor banners & signs.
2.52. Unique Items: Macker agrees to provide the following Unique Items at no additional
cost to Local Organizer:
2.5.2.1. duct tape for court boundaries;
2.5.2.2. official programs;
2.5.23. scoresheets;
2.5.2.4. "hospital style" ID Braceleu;
2.5.2.5. portable baskets;
2.5.2.6. basketbalis;
2.5.2.7. computer processing of teams;
2.5.2.8. liability insurance (as more specifically described in Pazagraph 2.6); and
2.5.2.9. semi-trailers necessary for transportation of equipment.
2.5.3. Generic Items: Macker �grees to provide Local Organizer with sufficient information,
specifications, or materials necessary for Local Organizer to obtain the following
items/services (collectively the "Generic Items"):
2.5.3.1. portable restrooms;
2.5.3.2. garbage cans/dumpsters;
�:
�
2.53.3. bleachers;
2.53.4. tables & chairs;
2.5.3.5. tenu;
2.53.6. public address system;
2.53.7. forklift;
2.53.8. security;
2.5.3.9. medical personnel and supplies;
2.53.10. two-way radios.
2.5.4. Procuring Tournament Supplies:
�q_��
2.5.4.1. Ordering: Macker and Local Organizer shall agree in writing as to who will be
responsible for ordering the various Unique Items and Generic Items (collectively
"Toumament Supplies"). Unless othenvise specified, Local Organizer shall be
responsible for ordering the Generic Items. Unless othenvise speciFied, payment
for the Tournament Supplies wilt ultimately be the responsibility of the Local
Organizer, as set forth elsewhere in this Agreement.
2.5.4.2. Suppliers: Local Organizer acknowledges that there are only certain suppliers for
some of the Unique Items, in part because of the stringent specifications for the
Unique Items. Macker wi11 suppty I,ocal Organizer with written specifications for
the Unique Items in order to allow Local Organizer the opportunity to determine if
any locai suppliers are capabie of producing them. In the event that the Local
Organizer finds a supplier that can meet the stringent speciFications of Macker, at
a price lower than obtainable by Macker through Macker's usual suppiiers, Macker
agrees to �easonably consider ailowing Local Organizer to obtain the items in
question from each supplier. In the event that Macker does not approve the
supplier requested by Local Organizer, Local Organizer shali have the option of
ordering the Unique Items Directly from the Supplier that Macker intends to use
were it going to obtain the Unique Items in question. Local Organizer shall be
responsible for ensuring the quality of the Uniq�,�e Items it obtains. In the event
that they are not in compliance with the specifications, then Macker shalt have the
right to order replacements from iu usual suppliers, all at the cost of Local
Organizer.
2.6. Insurance:
2.6.1. Macker shali obtain commercial public liability insurance coverage (Spectator
Liability) for Bodily Injury & Property Damage and Participant Legal Liability
coverage, naming Local Organizer, Gus Macker Enterprises, Inc. and any Local,
National or Regional Sponsors identified by Local Organizer and/or Macker as
additional insureds, in the amount of One Million Dollars ($1,000,000) each � � 7 3
occurrence and annual aggregate for commercial public liability coverage, and Two
Hundred Fifty Thousand doliars ($250,000) per occurrence for Participant Legal
Liability coverage. Macker shall provide Local Organizer with a copy of a policy
conforming to the within conditions no later than fifteen (15) days prior to the
Toumament Date.
2.6.2 Local Organizer agrees that each participant in the Toumament shall acknowiedge in
writing, in a form provided by Macker, that Macker and Local Organizer shall have no
liability for personal injuries which may arise from the entranPs participation in the
Toumament.
Local Organizer Responsibilities
3.1. Spec�c Tournament Site: Local Organizer shall be responsible for selecting a specific
site for each Toumament within the Tournament i,ocation. Local Organizer shall provide
Macker with written notice of the specific site for the Tournament no later than 120 days
prior to each Toumament Date. Locai Organizer agrees to consult Macker regarding the
suitability of the specific site and specific layout (including court placement, tent
placement, etc...) prior to making any public announcement and commitment to sponsor
the Tournament at that site.
3.2. Approvals, Permits and Licenses: Local Organizer shail be responsibie for obtaining all
required governmental approvals, permits and licenses necessary for Macker to conduct the
Toumament, including, without limitation, those approvals necessary to:
3.2.1. operate the outdoor pubiic address system;
3.2.2. divert and block tr�c; and
3.2.3. sell food and souvenirs.
3.3. Tournament Supplies: Local Organizer shall obtain the quantity and quality to
Toumament supplies set forth in the written agreement referenced in paragraph 2.5, above.
3.4. Personnel: Local Organizer shall be responsible for obtaining volunteer personnel to serve
in the following areas of responsibility:
3.4.1. court monitors (GusBusters) and cfficials;
3.42. set-up, take-down, and cleanup;
3.43. on-site player registration;
3.4.4. scheduling/bracket tent;
3.4.5. on-site special events; and QQ'�
3.4.6 medicai care and first aid.
Macker will make recommendations to Local Organizer regarding the number of
volunteers needed, at a time closer to the Toumament Date. If Local Organizer fails to
secure an adequate number of volunteers, Macker shall have the right to hire paid
personnel which Lc^al Organizer shail be responsible to pay.
3.5. Charges, Cost and Fxpenses: Local Organizer shall be responsible for all cost and
expenses, regazdless of how characterized, in wnnection with the Toumament including,
without limitation, the cost of the permits, approvals, and licenses, insurance, Tournament
Supplies, and fees and out of pocket expenses charged by Macker, as more specifically
outlined below.
3.6. National or Regional Sponsor: Local Organizer agrees to comply with any and all
requirements of any National or Regional Sponsor identified by Macker. Macker shall be
responsible to identify any National or Regional Sponsor to the Local Organizer not later
than Sixty (60) days before the Tournament Date.
3.7. Local Sponsorship:
3.7.1. Local Organizer is responsible for obtaining and securing all iocal sponsorship for the
Toumaments. For purposes of this Section, "loca( sponsorship" shall be defined to
mean any sponsor of the Toumament which has not been identified by Macker as a
National or Regional Sponsor.
3.7.2. Local Organizer agrees that it will not utilize any Local Sponsor which:
l. Sells, distributes, endorses or advertises, or is affiliated with any entity which
sells, distributes, endorses or advertises, any alcoholic beverage, any alcohol-
related product or any tobacco product;
2. Is a direct wmpetitor, in the furnishing of goods or services, of any National or
Regional Sponsor identified by Macker in accordance with Section 3.7 hereof.
3.7.3. Local Organizer acknowiedges that in enforcing the provisions of Section 3.7.2, Macker
shall be entitled to seek and obtain injunctive relief, in a court,of competent jurisdiction,
to enjoin any violation of Section 3.72. �
4. Fees, Revenues, and Charitable Contriburions.
4.1. Macker Fees:
4.1.1. Travel expenses: Travei expenses incuned by Macker in connection with the
Tournament including, but not limited to airfaze, surface transportation, and meals will
� be Three Thousand dollars ($3 000.00) per Tournament. The travel expenses shall be
paid on or before the first day of each tournament. It is ageed that lodging is not to be
a4-��
included as a travel expense under this paragraph. Local Organizer is responsible for
obtaining complimentary lodging from a local hotel, or reimburse Macker separately
for any lodging expense.
4.12. Pre-Toumament and Tournament Services: as compensation for services rendered
pursuant to paragraphs 2.2 and 23, Macker shall be entitled to the greater of
4.1.2.1. twenty eight percent (28%) of ihe gross team entry fees for the first 1,000 paid
teams and ten percent (10%) of the gross team entry fees for each paid team over
1,000; or
4.12.2. Nine Thousand Five Hundred Doliars ($9,500.00) if tournament is held on or
between Memorial Day and Labor Day; Three Thousand Six Hundred Dollars
($3,600.00) if toumament is held "off-season" (i.e. before Memorial Day or after
Labor Day).
This amount shall be due and payable on or before the first day of each Toumament.
For purposes of this paragraph, Macker and I,ocal Organizer agree that team entry fees
for the 1999 Tournament shall be a minimum of Eighty Eight Doliars ($88_00) per
team.
4.13. Miscellaneous Services: the services, if any, provided pursuant to paragraph 2.4 shall
be paid for within fifteen (15) days of Local Organizer's receipt of an invoice from
Macker.
4.2. Revenues:
42.1. Macker: Macker shall be entitled to ninety-five (95%) of the gross proceeds of all
souvenirs and goods sold by it pursuant to paragraph 6.1.
4.2.2. LocalOrganizer:
42.2.1. Except as set forth in pazagraph 7.2, Local Organizer shall be entitied to all of the
net proceeds of the sale of food and beverage products at the Toumament.
4.2.2.2. Local Organizer shall be entitied to five percent (5%) of the gross proceeds of sale
of souvenirs and goods sold by Macker pursuant to pazagraph 6.1. Macker shall
, provide a reasonably detailed statement of the amount owed to Local Organizer
� pursuant to this paragraph and shall pay Local Organizer this amount within thirty
(30) days after the last day of the Toumament; provided, however, if Local
Organizer defaults in performance of' 3ny of iu obligations under this Agreement
or does not secure a location of the sale tent neaz Center Court at the toumament,
Macker may at its sole discretion withhold payment of this five percent (5%) fee.
4.2.23. Local Organizer shail be entitted to seventy two percent (72%) of the gross tearn
entry fees, less the amount to be paid by Local Organuer to a local charitable
organization, as set forth in pazagraph 43.
99-'�'�
43. Charitable Contribution: Local Organizer shall make a contribution to a local charity pre-
approved by Macker from the Local Organizer's portion of the Tournament entry fees.
Such payment to be made within sixty (60) days of the last day of the Toumament.
5. Liquidated Damages.
5.1. Macker and Local Organizer acknowledge that, in the event Locai Organizer fails to
conduct any Tournament at the Toumament Location during the Term of this Agreement,
the damages suffered by Macker would be difficult or impossible to ascertain, since
Macker would suffer the loss of potential revenue from the sale of souvenirs, clothing and
other goods, as well as the loss of goodwiil. Macker and Local Organizer acknowtedge and
agree that Macker's profits on the sale of souvenirs, clothing, and the goodwill inuring to
Macker are a significant part of the consideration for this Agreement. Therefore, Macker
and Local Organizer agree that, in the event Local Organizer fails to conduct any
tournament at the Toumament Location during the Term of this Agreement, except as
specifically provided for in Section 9.1, then, for each such Toumament not conducted,
Local Organizer shall pay to Macker the sum of $5,000 as liquidated damages.
5.2. Local Organizer and Macker further agree that the failure of the Locai Organizer to
conduct a Tournament at the Toumament Site in any one year of the Term of this
Agreement shall be conclusively presumed to be an anticipatory breach of the Local
Organizer's obiigation to conduct a Tournament in any subsequent year remaining under
the Term of this Agreement, and that the liquidated damages set forth in this Section shall
apply to each subsequent year left under the Term of this Agreement.
5.3. In addition to the payment of liquidated damages required under this Section, if Local
Organizer fails to conduct any Toumament that is described in this Section 5, any unpaid
amounts due under Section 1.2 shall be immediately due and payable to Macker.
6. Sale of Souvenirs and Products bearing any trademarks or servicemarks owned by
Macker.
6.1. Macker shall have the exclusive right to sell souvenirs and goods which bear any
trademarks or service marks owned by Macker. Macker shall pay to Local Organizer the
amount set forth in paragraph 4.2.2.2. Notwithstanding the foregoing, Macker and Local
Organizer agree that the player's package distributed to each entrant and consisting of,
without limitation, a complimentary Gus Macker� t-shirt, the Gusette�, an official
program, and other items that may from time-to-time be included, shail be distributed to
entrants without charge other than the enriy fee.
6.2. Local Organizer has no right to sell or distribute any souvenirs or goods which bear any
trademuks or servicemarks owned by Macker without the prior written consent of Macker,
which may be withheld in Macker's sole discretion.
7. Sale of Food and Beverages.
Q1-'13
7.1. Except as set forth in pazagraph 7.2, I.ocal Organizer shall have the right to sell or
distribute any and all food and beverages and shall have the right to allow local service
organizations, including without limitation, the Jaycees, Kiwanis, Boy Scouts, and the like,
to sell or distribute foods and beverages.
7.2. Notwithstanding the limitarion of Secrion 7.1, Macker shall have the right to sell or
distribute any food or bevera�e product as part of any a�eement between Macker and any
Regional or National Sponsor. Local Organizer further agrees that it will not permit any
local organizarion to distribute any food or beverage that is contrary to or in violation of the
terms of any agreement between Macker and any Regional or National Sponsor.
8. Confidentiality, No rights in Technical Information, Copyrights, or Trademarizs.
8.1. Local Organizer acknowledges that Macker has devetoped and is the sole owner of
substantial proprietary information relating to organizing, promoting and conducting
basketball toumaments, including confidential information, lrnow-how, data, trade secrets,
technicai specifications, team pairing formulas and techniques, player data, mailing lists,
and the like ("Technical In£ormation").
82. Local Organizer acknowledges that Macker has developed and is the sole owner of copy-
righted name and formats for use in producing, without limitation, brochures, newsletters,
rules and regulations, programs, trophies, promotionai producu, computer software, and
the like ("Copyrighu").
83. Local Organizer acknowledges that Macker is the sole owner of the marks "Gus Macker",
"Basketball Man Logo", "Gusette" and other related terms and designs ("Trademarks").
8.4. Local Organizer acknowledges that Macker has the sole right to grant all license, authority,
and permission to use said Technical Information, Copyrighu and Trademarks (collectively
"Rights") throughout the entire United States, iu possessions, and all foreign countries,
inciuding those territories beTonging to the Universal and Berne Copyright Conventions.
8.5. Local Organizer agrees to maintain in secrecy all of the Technical Information that it
happens to come across or that Macker shares with in connection with the Toumament, and
promises not to disclose or use any of the Technical Information withheld in Macker's sole
discretion.
8.6. Local Organizer agrees that it has no ownership of, and is not retaining the services of
Macker to obtain any right of ownership in, or continued use of, any of the Technical
Information, Copyrights or Trademarks.
8.7. In the event that one or more of the said Rights are infringed, Macker shall, within a
reasonabie time after notice thereof, resoive the problem or commence and prosecute at
Macker's expense, ali legal proceedings necessary to reasonably protect said Rights and
stop such infringement, and shall be entitled to retain all recoveries made therein.
9. Canceilation and Termination.
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9.1. Cancellation of Tournament: If less than One hundred (100) team applicants have been
received by Local Organizer at the time of the pre-established postmark entry deadline
date, then Local Organizer shall have the option to cancel the Toumament by written norice
to Macker no later than fourteen (14) days prior to the Toumament Date.
9.2. Promotional Fees: In the event of a cancellation of the Tournament pursuant to Section
9.1, ail unpaid installments of the Promotion Fee due to Macker under Section 1.2 are
immediately due and payable.
93. Termination: In the event any Tournament is canceled according to the provisions of
Section 9.1, Macker, at its sole option, may terminate this Agreement upon thirty (30) days
written notice to the Local Organizer. Notwithstanding any such termination, ali unpaid
installments of the Promotion Fee due to Macker under Section 1.2 are immediately due
and payable to Macker.
9.4. Bankruptcy of Local Organizer: If Local Organizer shail file a petition in bankruptcy or
be adjudicated bankrupt or become insolvent or make any assignment to the benefit of
creditors, or if the assets of Local Organizer shail be placed in the hands of a receiver,
Macker may terminate this Agreement by written notice by registered or certified mail to
Locai Organizer, its receivers, trustees or assigns. If this Agreement is so terminated, Local
Organizer, iu receivers, representatives, trustees, agents, successors or assignees shall not
be relieved of the obligations incuned to the date of termination.
10. Default.
10.1. Right to Ter»rinate: Should either Macker or Local Organizer default in the performance
of any of their respective obligations herein, and if such default shail continue for a period
of thirty (30) days after written notice and demand for performance to the defaulting party,
then the non-defaulting party may terminate this Agreement.
10.2. Liquidated Damages: In the event of default by the Local Organizes, the Local Organizer
shall be subject to the provision for liquidated damages as provided in Section 5.1, and all
unpaid installments of the Promotion Fee due to Macker under Section 1.2 are immediatety
due and payable to Macker.
103. Interest on Delinquent Paymenis: All Payments required to be made under this
Agreement not received by Macker by the specified due date shali accrue interest at a rate
equal to the then-current maximum rate permitted by law.
11. Non-Compete Agreement.
11.1. Macker: Macker agrees that during the term of this Agreement, it will not promote,
organize or conduct a Gus Macker� "3-on-3 Basketball Tournament" within Fifty (50)
miles of the Tournament Location and within One (1) month of the Toumament Date.
Macker shall not be bound by this agreement if fhe Toumament Services Agreement is
terminated pursuant to Articles 9 or 10.
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11.2. Local Organizer: Local Organizer agrees that it will not sponsor a so-called "three-on-
three" basketball tournament during the term of this Agreement and for eighteen (18)
months thereafter.
11.3. Consideralion: Locai Organizer and Macker agree that their respecrive agreements not to
compete, as set forth above, are an integral part of the overall wnsideration given by each
other entering into this A�eement.
12. Right of First Refusal for future Tournament.
In the event that Macker is interested in promoting, organizing and conducting a subsequent
Gus Macker� "Three-On-Three Basketball Tournament" at the Toumament Location within
Three Hundred Sixty Five (365) days from the expiration of this Agreement, and provided that
the Local Organizer is not in default under the terms of this Agreement, then Macker shall give
Local Organizer the first right to sponsor such subsequent Toumament. I,ocal Organizer shall
have thirty (30) days from receipt of written notice of Macker's intent to promote such a
Tournament to enter into a written Agreement with Macker to become the Local Organizer for
the Tournament.
13. Miscellaneous.
13.1. Notice: Any notice, payment, or communication to be given shall be sent, unless otherwise
specified herein, by first-class certified mail, retum receipt requested, and postage prepaid,
to the following address, as may be changed from time to time:
Macker:
Gus Macker Enterprises, Inc.
Attn: Mitcheli A. McNeal
3055 Lake Eastbrook Blvd.
Kentwood, MI 49512
Local Organizer:
Howazd Bell
St. Paul Parks & Rec.
300 City Hall Annex
25 W. 4`� St.
St. Paul, MN 55102
13.2. Law Governing: This Agreement shall be wnstrued and performance hereunder
determined in acwrdance with the laws of the State of Michigan, U.S.A. Any actions or
proceedings regarding this Agreement must be wmmenced and �maintained in a court in
the State ofMichigan, U.S.A.
13 3. Cost of Enforcement: In the event of breach or default of this Agreement by either party,
the losing party shall be required to pay a11 reasonable legal fees and costs incurred by the
successful pariy in enforcement of this Agreement.
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13.4. Binding Agreement, Non Assignability: This A�reement shall be binding upon the parties
hereto and upon their respective heirs, successors, legal representative, and/or assigns, but
shall not be assignable or transferable in whole or in part by Local Organizer without
written consent of Macker, which may be withheld in Macker's sole discretion.
13.5. Entire Agreement: This Agreement contains the entire Agreement between the parties
hereto, and it shall not ba altered, modified or amended except by a written document duly
executed by all parties hereto.
13.6. Severability: The invalidity or legal unenforceability of any provision of this A�eement
shall not operate to abrogate this Agreement, but shall merely cause such provision, and
only said provision, to be invalid or unenforceable.
13.7. Headings: The headings of each paragraph herein aze used solely for convenience and are
not part of the Agreement.
13.8. Time of Essence: Time is of the essence of the Agreement.
13.9. Independent Contractor: The parties agree that Macker is performing the services
hereunder as an independent contractor, not as an employee, agent, or legal representative
of the Local Organizer.
13.10. Books and Records: Local Organizer shali, for a period of three (3) years after the last
day of the Toumament, keep full and particular books of accounts of all matters connected
with the income from the Tournament, which books of account shail be open for inspection
and/or audit by Macker or its representatives during regular business hours for the purpose
of verifying the reports made by Local Organizer to Macker within this Agreement. In the
event Macker's audit establishes a deficiency in paymenu in excess of five percent (5%) of
the amount reported by Local Organizer, Local Organizer will beaz the reasonable cost of
the audit.
In Wimess Whereof, Macker and Local Organizer have caused this Agreement to be signed as of the
dates set forth below, and to be effective as of the later of those dates.
Gus Macker Enterprises, Inc.
By � . ` ate: !/�9�y�
Mitchell A. McNeal
Its: President
Local (
�
Date: J�����
- � =.�
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POR 1'HL•' CITY OF S.al\T PAUL:
Dated:
Daced:
Dated:
Da[ed:
The Honorabk \orm Cokman.
�la�or
� A. �diccJznstein. Jr--
Superin�znden� of Parks & Recrea�ion
�"ir�inia Palmer.
Assistan[ Ci�}' Auomz}
Joseph Rzid.
Direc[or, of Financial Ser�ices
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